Mark Glover, ‘The Timing of Testation’

An adult can execute her last will whenever she wants. She can do so on her eighteenth birthday, or she can wait until she is on her deathbed. She can also execute her last will at any point between these two extremes. While the timing of testation is up to the individual testator, her choice has important implications for the law. These implications have been recognized primarily in the realm of will-interpretation, as when testation occurs can affect how courts attribute meaning to a will’s words. By contrast, the implications of testation’s timing for the law of will-authentication have been overlooked.

Will-authentication is the process by which the law separates purported wills that testators intended to serve as evidence of their estate plans from those that decedents did not want to be given legal effect upon their deaths. This Article argues that the extent to which the testator’s intent will be fulfilled if a correct will-authentication decision is made should be an important consideration for policymakers when crafting the law of will-authentication. Additionally, the Article argues that the timing of testation can provide policymakers evidence of the likelihood that the testator’s intent will be carried out if a will is correctly authenticated. By explaining how the timing of testation should inform how the law authenticates wills, this Article provides policymakers a fresh perspective through which to evaluate potential reforms of the law.

In addition to highlighting the theoretical implications of testation’s timing, this Article provides an empirical analysis of testation’s timing, which considers an original data set of over eighteen hundred wills that were probated in Hamilton County, Ohio in 2014. By comparing the date of execution of these wills with the date on which the testator died, this analysis provides a glimpse of when testation in fact occurs. Ultimately, when considered alongside the theoretical implications of testation’s timing, this original empirical analysis can assist policymakers in crafting the law of will-authentication.

Glover, Mark, The Timing of Testation (March 17, 2018). 107 Kentucky Law Journal (forthcoming).

First posted 2018-03-22 08:00:19

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