Empathy Subjectivity and Testamentary Capacity

Abstract

This Article examines the requirements of testamentary capacity in the execution of wills, and the difficulties that courts face in determining a testator's intent. The author begins by describing the doctrine of testamentary capacity and explores its connection to the ideas of individualism. The author then examines the tests that courts have adopted for assessing testamentary capacity and argues that these tests have the potential to conflict with the idea that values are subjective. The author proceeds to illustrate how courts typically empathize with the testator, rather than focus on the testator's abstract ability to reason, and explores the relationship between the use of empathy and the premise of wills law. The author concludes that other doctrines of wills law depend more heavily on empathy than previously assumed and that the critical inquiry of a testator's intent can never be confidently resolved.