Question 3B: Model 1: This question addresses fundamental issues which pervade the law of property, which in fact pervade the law. We are asked to examine the benefits of two conflicting ways of approaching law in general, and wills/probate in particular. Shall the law be governed by a strict adherence to rules, bound by formal compliance with time honored time tested formalities? or shall the law bend its posture and look at probate with an eye towards fulfilling the testator's true intentions, when they are in conflict with the formalities - i.n short, shall we strike rules in favor of standards in this area? This court, while conceding the gravity of a change in one of the oldest holdout areas for strict compliance, finds today that the court of appeals has decided correctly: requisite formalities must bend to convincing evidence of testamentary intent.
We must caution that our holding is a limited one: we are not throwing out probate and will rules. We are merely saying that a defect in a will, rather than lead to voidity, should lead to a determination of testamentary intent.
Langbein cites various functions that the formalities of wills serve. A will should be written, witnessed and signed because that gives us evidence. After all, the testator is dead. We must have something to go on to prevent fraud and to guide us in determining intent. The signature and witness help us determine that the evidentiary function is genuine. Here, this function was fulfilled. There were witnesses who were told by the testator that the signature was his -- enough in many states to pass formal muster. He signed the document -- his signature may surely be proved to a reasonable certainty. The circumstances of him being on his deathbed also mitigate the situation. It appears that he did everything possible to conform to formalities. What more may we ask of a dying man?
This question of genuineness is important, but it is not something which is completely gotten around by adherence to formalities. Fraud will be perpetrated, if one is determined. A case by case analysis of whether fraud has happened -- since it will probably occur rarely since most people with sizeable estates are diligent re will making -would seem to be more fair and more in keeping with the trend in law today -- that is a realistic responsive approach which considers intention and individual autonomy and expression paramount. Formalities, tho devised to provide a way to fulfill intent of testatorinterest by putting too great an importance on picky details and not enuf on big picture, may actually hinder this.
Rules in general do this -- they seek to make nice bright lines but donft always work. Think of the classic Pierson v. Post rule of mortal wounding. Clearly, not an easy rule to apply.
Another Langbein function is channeling. This is to provide uniformity and administrative ease. Like the IRS, if all wills are treated by the same rules (all tax forms are identical) then it will be easier. However, should we sacrifice justice and testamentary intent for mere ease? And is, in fact, it less difficult to administer rules than standards? That is not clear and without evidence to the contrary, this court finds that autonomy needs and flexibility weigh more than administrative ease.
A third function is cautionary -- a will and will formalities substitute for the wrench of delivery. Though a good function to reinforce in theory, this court finds the function overblown. Besides, we are not suggesting doing away with will requirements -- simply that the interpretation of wills be relaxed. People will still be required to be impressed with the reality of their gift.
Finally, wills are protective of testator's intent and discourage fraud. As discussed above, our scheme will not hinder this anymore than previous schemes.
Why deny courts the interpretive powers in probate which they enjoy in other arenas? It is said that probate courts are mere administrative, inferior courts and not equipped for such duties. It is a sad commentary indeed if this is so: a court which is competent to apply the complexities of probate is surely capable of looking past and around rules to one human element in each case to decade.
The case at hand is not such a far leap from the status quo. Possibilities exist for holographic wills which don't require witnesses and non-cupative wills (on deathbed, for personal property, with witnesses) which are not written down until afterward. There are provisions for gifts causa mortis -- where a person threatened with death may leave personal property, while competent, it delivery is made. It is true these are strictly construed, because of the dead-man policy (it is difficult and tricky to know of a person's intent when they are dead).
However, many people are able to get around the necessity of probate anyway -- thru Totten trusts and inter vivos and joint accounts. Since most people who have access to such alternatives -- and indeed those who have access to lawyers who can write perfectly executed wills -- are an elite or at least favored class, the law as it stands, discriminates against those classes of people without fees for attorneys. Should not their testamentary intention be honored as much as those who can afford lawyers? To be truly equitable and just, the law must give room to those with less power and honor their wishes above formal requirements.
For these reasons: that standards of interpretation in will reading w/ attention paid to testator's intent will be more just, more in conformity with today's legal system and will continue to fulfill the necessary requirements which formalities fulfill, we uphold the court of appeals' decision.
Dissent: I agree with only one aspect of the majority's opinion -- that this matter deserves weighty contemplation. For numerous reasons, I would overturn the decision below.
1)certainty: a good in and of itself for it gives people a sense of security and knowledge of what to expect. The will rules have been around for ages and are known, respected and followed. To change midstream so radically would upset the status quo. We as courts are bound to interpret the law, not make it. If such changes are to be made in relaxing the probate rules, let the legislature do so. If the people want a change, let them lobby their congressman. This is judicial activism at its worst. it is said that the law must change with the times. Last I checked, people still die and still expect to be able to leave their estate to whomever they wish. The rules have always facilitated this and will continue to do so.
2)Respect for the law: consistency is very important in making people respect the law, as is a. law which is applied consistently. We should neither change the law, nor should we apply it differently in difficult circumstances lest people not know what to expect and lose respect for the law.
3)Enforcement: this will be too costly to administer - each and every will will now be argued and bickered over & a floodgate of cases will overwhelm the system. This will in turn hurt the people whose needs for probate are legitimate.
4)Incentive for fraud: If courts must analyze every will past the rules, people will learn to manipulate -leave out crucial aspects, invent reasons to discourage Aunt Ellen from actually getting three witnesses when courts will probably okay two -- if there are no guidelines. With the main person we are concerned with -- the decedent -- dead, others may step in to give their version of his or her intent. How is a court to know? Wills may even be f orged more easily. This law will encourage a whole new industry which until now has been backstopped by intestacy. It is a given that most people wish to leave their estate to their families and heirs. Under the present system, if a formality is not adhered to, the estate will go to the family anyway. This system is also good for society in general because we do not want to encourage disinheritance of family members.
Finally, the majority argues that if we give interpretive powers to the courts, a more just outcome will result, especially for those who do not have access to lawyers to write their wills. First, standards applied by judges and juries are subject to the whims and prejudices of the judges and juries, as well as to their mood, the sympathy engendered by the plaintiff, and various other socio-political factors. Second, those same people who have no $ for access to attorneys to write wills will have no $ for attorneys to argue their cases. They will at best have second-rate ones, which will affect their case. So it is in fact more just to apply the same rules to everyone. What is "clear & convincing" evidence anyway?
I would reverse the lower court. I would also urge a more uniform national probate law so that indeed, everyone was subject to the same requirements. That some states require three and some two witnesses, that states differ in their age requirements and interested witness rules (some void the gift and it is to a witness and others don't) and that various other differences abound seems to me a greater evil.
Question 3B: Model #2: The decision of the court of appeals is affirmed. From now on substantial rather than literal compliance with wills formalities is sufficient. This case is a supreme example of the types of injustices which result from the literal compliance (L.C.) requirement. Assuming that there were no other problems with the execution of the will it would have been valid on its face and the testator's intent would have been carried out. Since Allen acknowledged his signature (which happens to be good enough in some Juris and Fla. Statutes) and there has been no challenge that the witnesses were interested takers under the will there is no rational reason to not carry out his intent merely due to a technicality.
Freedom of testation is always our primary goal. Allen's mother is free to contest the will due to incapacity (lack of sound mind and unable to understand nature and extent of property, natural objects of bounty, particular disposition of property), insane delusion (belief in things which do not exist and which no rational mind would believe to exist), undue influence (fear, force, coercion, destroying free will of testator), duress (compulsion of another), or fraud (false statement of material fact, made with knowledge, with intent to induce action, and reliance plus injury).
We realize the posture in which a will reaches a court makes it more difficult to interpret the intent of the testator and guard against fraud, but a skilled con artist can successfully influence a will in ways beyond a court's detection even if the formalities are observed. With the availability of other methods of contesting (above) we should permit substantial compliance as we do in other transactions. The availability of evidence may be diminished, but courts handle evidence problems daily. The only ones to get hurt by such a harsh rule are those who die quickly or who have poor lawyers. Rich people all use trusts and don't necessarily need this protection.
The dissent claims that courts will now receive wills which will come in an infinite number of forms (breakdown of standardization due to loosening of standards) but we don't believe that this will happen. Most wills are prepared by lawyers and have basic similarities which will probably not change. The dissent also claims that costs of administration will rise by our having to sort out strange wills and that this will hurt any beneficiaries. These costs are speculative and we believe that the testator would rather have' his intended devises take a little less each than have the whole go through intestate succession to an unwanted beneficiary.
Substantial compliance (S.C.) will still adequately serve the cautionary and protective functions to the testator. Most people know the legal significance of a will and comply more fully than required "just in case." These people will continue to do so. And as spelled out above the protective functions will continue to be served by the remaining methods of contesting a will.
once again we must point out that our primary goal is to carry out the intentions of the testator and that this is why we choose to adopt S.C. This will establish a presumption of validity which the contestor must disprove with clear and convincing (between "beyond a reasonable doubt" and "by a preponderance of the evidence"). One only need look back to the sad case of In Re Strittmatter to see the injustice of being too quick to act in invalidating a will.
Dissent: We should not throw away the L. C. requirement because it will result in the disintegration of our probate system. In the present case, we have no one besides the lawyer who witnessed the signing. The man was very ill, he may have signed a blank sheet which the lawyer substituted and unknowingly gave his estate to unintended recipients. We need L.C. to protect the testator, preserve evidence, and maintain uniformity in our wills. The majority is willing to impose a new burden on the probate system (the processing of wills will be slower and more costly) and then pass these costs on to the beneficiaries. This I can not accept.
If a will fails, intestate succession serves as a backstop to protect the nat, il objects of one's bounty. Even though the mother and son hadn't spoken for years, a mother is still a natural obj of bounty. He (Allen) may have thought his will was to give all his property to his mom. The lawyer may have substituted an earlier will. The majority says, "Well, contest it in Fraud, etc." This costs a lot of time and money and is harder to prove.
We don't know the testator's intent and have no way of really knowing (Dead Man's policy). What happens if the testator doesn't sign at all? Do we smell the document to see if we can get a whiff of intent? The decision by the court will not only open the doors for interpretation errors but also the doors to a floodgate of litigation.
Finally, our probate courts are not equipped to handle these types of decisions. While the majority claims that our courts handle evidence problems all the time, they ignore the inferior status of our probate courts. These people have less training than regular judges and need the most mechanical rule we can give them. The court is substituting an indefinite standard for a clear and easy to apply rule. I am willing to concede that perhaps this instant case would be ill-served by the L.C. rule but my concern is not for the occasional rarity but for the day to day realities. For these reasons, I respectfully dissent.
Question 3C: Comments: On the this question, I was looking for you to defend a choice of a general rule, not merely to resolve the particular case. Those people who either defended or attacked a general adoption of the Restatement 2d position for all pri-vate nuisance in the state, therefore, did considerably bet-ter than the majority of you who merely tried to apply the restatement or argued that an injunction should or should not issue on the given facts.
Question 3C: Model #1: This state rejects the strict liability approach to provide insurance and finds that Wagman, Inc. shall pay damages as provided for in the Rest. 2d test for private nuisance.
SOCIAL VALUE: The strict liability approach may have worked well in feudal England or empty America, but as America fills up the needs of society press in more and more on the private rights of an individual to use and enjoy (and enjoin) his/her property. At some point in this progress this court must become conscious or at least consider the social value of nuisances and handle them in a more sensitive way. The strict liability test we now reject would have us enjoin the operation of an orphanage if there were one neighbor complaining about some noise the orphanage cannot help. [MF: unless the court found the neighbor oversensitive] In this case, it is clearly in Ecotopia's interest (both jobs and militarily) to keep the plant open but allow it to pay damages to those whom it burdens.
BUSINESS DECISION: In adopting the Rest. 2d, for those nuisances which fall under part 2, businesses will start to plan and budget for costs their nuisance will create, insuring adequate damage payment. Businesses will guarantee that, if a nuisance will be created, the business can pay for it.
IF NOT HERE: Another problem with strict liability/injunction is that no part of America will tolerate Wagman, Inc.'s plant, and strict liability will force the plant to relocate to (of course) Yucca mountain, Nevada. The activity is desirable and must be done somewhere: How will Ecotopia do without the jobs it pro-vides?
COASE If the parties here were allowed to bargain freely (without the tremendous cost of dealing with angry eco-freaks) then Wag-man, Inc. would pay for the privilege to continue its operation (exactly what the Rest. 2d would advise).