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Wednesday, December 26, 2012

Horton: Testation and Speech

David Horton (UC-Davis), Testation and Speech, 101 Geo. L.J. 61 (2012):

Courts, scholars, and lawyers think of testation—the creation of a will or a trust—as a transfer of wealth. As a result, they analogize the field of decedents’ estates to property, contract, and corporate law: other spheres that regulate the use, conveyance, and investment of assets. Conversely, this Article identifies a quality that makes testation unique: it is a singular form of self-expression. Conditional gifts, charitable bequests, and other posthumous directives often communicate a testator’s or settlor’s deeply felt views. Likewise, distributional choices can be profoundly revelatory: by rewarding some beneficiaries and snubbing others, testators and settlors offer a final assessment of their lives, their loved ones, and the world.

Recognizing testation’s expressive impact has broad implications. For one, there has long been consensus that the Constitution does not apply to limits on testamentary freedom. However, because testation is a “speech act,” some wills-and-trusts rules, such as the doctrine of undue influence, must satisfy the First Amendment. Moreover, conceptualizing testation as speech bolsters the normative case for testamentary freedom and cuts against the grain of recent developments in trust law. In the last decade, the rise of law and economics and an unprecedented intergenerational wealth transfer have inspired a series of doctrinal changes that shift power away from settlors in order to enhance the value of the corpus. This new fixation on profit maximization overlooks the virtues of testamentary self-expression—the fact that it facilitates autonomy and self-determination—and reflects an impoverished vision of trust law.

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