This semester I began using the just-released 8th edition of Dukeminier’s Wills, Trusts, and Estates. Five weeks into the semester, I’m pleased with this latest revision, primarily because some chapters have been reorganized in ways that are much more consistent with how I actually teach the course, which means that the students spend less time hopping between cases. One new note, however, has needled me into reconsidering the 1990 Uniform Probate Code, particularly as amended in 2008.
In the note, the casebook authors describe Stephanie Lester’s 2007 study of more than 120 Australian cases in which the court used the dispensing power, i.e., probated a document which had not been executed in compliance with the formalities because clear and convincing evidence showed that the decedent intended the document to be a will. The casebook authors provide this summary of Lester’s work: “[Lester] concluded that the dispensing power has continued to fare well—with one exception. In a troubling number of cases, the court admitted a document to probate despite evidence that the document was not intended to be a will but for which there was good evidence of whom the decedent wanted to benefit.” (For an American case of the same stripe, see In re Estate of Kuralt, where the court probated as a holographic codicil a letter stating that the ailing Kuralt would have a “lawyer visit the hospital to be sure you inherit the rest of the place in MT.” (emphasis by Kuralt).
My reaction to this trend is twofold: (1) if it is troubling, it’s not surprising, and (2) is it really troubling?
First, the predictability of this latest development. The 1990 UPC and its subsequent amendments are aimed at making wills easier and easier to write. As an example, see the revised section 2-502, which allows testators to use a notary instead of two witnesses. The 1990 UPC also authorizes the dispensing power that Lester studied. Couple the loosening up of the formalities with the dispensing power and it’s not that great a leap to probating a document that clearly and convincingly shows whom the decedent wanted to benefit after death, even if the decedent did not perceive of that document as a will.
Second, and more important, is this new development really troubling? I admit that the Estates and Trusts professor in me cringes each time I teach Kuralt. If one talks about the formalities long enough (even the loosened-up kind), they tend to take on a significance of their own. But many of my students seem unbothered by Kuralt, and not because they think the decedent actually wrote a codicil. If the alternative to probating the not-a-will is intestacy or some other result that we are convinced the decedent wouldn’t want, why not probate the document that reflects what the decedent wanted to happen to her property? When we talk about the importance of decedent intent, isn’t the penultimate question “Whom does the decedent wish to benefit?”