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? Read More