Show simple item record

dc.creatorBaron, Jane B.
dc.date.accessioned2021-07-08T19:53:07Z
dc.date.available2021-07-08T19:53:07Z
dc.date.issued2016
dc.identifier.citationJane B. Baron, Irresolute Testators, Clear and Convincing Wills Law, 73 Wash. & Lee L. Rev. 3 (2016).
dc.identifier.citationAvailable at: https://scholarlycommons.law.wlu.edu/wlulr/vol73/iss1/3
dc.identifier.issn0043-0463
dc.identifier.urihttp://hdl.handle.net/20.500.12613/6705
dc.description.abstractControversial recent wills law reforms, embodied in new provisions of both the Uniform Probate Code and the Restatement of Property, excuse so-called harmless errors in will execution and permit judicial correction of erroneous terms in a will or trust. Both reforms pose evidentiary dangers, as proof of the error must come from outside the attested instrument and will be offered after the testator’s death. To respond to this concern, both the error and the testator’s true intent must be established by “clear and convincing” evidence. This Article is the first to examine how courts have applied the clear and convincing evidence standard to these important reforms of wills law. In practice, the clear and convincing evidence standard provides less evidentiary protection than its proponents expected. More importantly, judicial struggles with the clear and convincing evidence standard expose a deep fissure in the very concept of testamentary freedom. The reforms assume—as does the Wills Act itself—a fully formed, fixed set of choices that the testator has sought to express in his will, choices made by a conventionally rational choosing testamentary self for whom wills rules further self-determined ends. This conventionally rational testator makes only innocent, inconsequential errors. Many of the testators in the actual cases, however, display only bounded rationality. Their errors are not simple accidental snafus. While the reforms contemplate correction only of the technical, innocuous expression or execution errors made by self-reliant, choosing testamentary selves, at least some courts care also about the more complicated errors made by vulnerable, irresolute testamentary selves. These courts push against the reforms’ boundaries. The clear and convincing evidence standard has not and will not function as a serious limit on mistake correction because it fails to reckon with both visions of testamentary freedom.
dc.format.extent73 pages
dc.languageEnglish
dc.language.isoeng
dc.relation.ispartofFaculty/ Researcher Works
dc.relation.haspartWashington and Lee Law Review, Vol. 73 (2016), Iss. 1
dc.relation.isreferencedbyWashington and Lee University, School of Law
dc.rightsAll Rights Reserved
dc.subjectEvidence (Law)
dc.subjectWills
dc.subjectInterpretation and construction
dc.subjectStandards
dc.subjectStudies
dc.subjectProbate
dc.subjectReforms
dc.titleIrresolute Testators, Clear and Convincing Wills Law
dc.typeText
dc.type.genreJournal article
dc.relation.doihttp://dx.doi.org/10.34944/dspace/6687
dc.ada.noteFor Americans with Disabilities Act (ADA) accommodation, including help with reading this content, please contact scholarshare@temple.edu
dc.description.schoolcollegeTemple University. James E. Beasley School of Law
dc.temple.creatorBaron, Jane B.
refterms.dateFOA2021-07-08T19:53:07Z


Files in this item

Thumbnail
Name:
Baron-JournalArticle-2016.pdf
Size:
674.0Kb
Format:
PDF

This item appears in the following Collection(s)

Show simple item record