The Myth of Testamentary Freedom
56 Pages Posted: 6 Nov 2019
Date Written: November 4, 2019
This article examines how courts enforce moral norms by manipulating doctrines· designed to root out wills that lack testamentary intent and by selectively imposing the strict compliance doctrine. First, I explore the undue influence doctrine to show how courts will often invalidate even perfectly executed wills when necessary to ensure that the testator meets his or her familial duty. I then focus on cases construing the traditional Wills Act formality that requires two witnesses to sign the will in the testator's presence. I also explore cases that determine whether the signature requirement was satisfied when the testator was physically assisted in executing his or her will.
I then show that our law is no stranger to the concept of testamentary familial duty, and often imposes such a duty overtly. In fact, the urge to restrict testamentary freedom in favor of the family is almost universal; most legal systems expressly protect family members from disinheritance.
Finally, I demonstrate that the adoption of the Revised UPC will not necessarily lead to greater testamentary freedom. Simplifying will for formalities may deprive creative courts of one weapon in the battle to assure that testators fulfill perceived moral obligations, but simplification will hardly make a dent in the judicial arsenal. When legislatures and courts have, in the past, simplified
will formalities, courts have adapted by finding new bases for invalidating wills that previously would have been stricken for failure to comply with formalities. To illustrate, I examine a series of cases decided in jurisdictions that have purported to relax the traditional requirement that a testator's signature appear at the end of a document if it is to qualify as a will. Finally, I show that even
the dispensing power will not. dim courts' loyalty to family duty, and thus will not ensure greater testamentary freedom for those who wish to distribute their property in ways that may offend a court's normative values.
Keywords: wills, testamentary intent, familial duty, signature, testamentary freedom
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