,,,Testamentary Transfers and the Intent Versus Formalities Debate: The Case for a ‘Charitable’ Common Ground

Abstract

The dominant issue in the law of wills for much of last half century has been how much formality the law should require before giving effect to a party’s testamentary intent. The traditionalists favor: (1) the maintaining the prevailing approach to the Wills Act formalities; (2) strict enforcement of those formalities; and (3) courts having the power to construe but not reform a will. The intent-oriented advocates favor: (1) reducing the Wills Act formalities to a minimum; (2) granting courts the power to dispense with those formalities under the harmless error doctrine; and (3) granting courts the power to reform a will, even if there is no ambiguity in the will. The problem is the underlying variables inherent in the debate are so indeterminate (what is the value of testamentary intent; how much increased costs of administration and potential for fraud is there in the harmless error and/or power-to-reform doctrines), it is tough to imagine much movement in the debate. Recent developments, however, shed a new light on the debate. The debate has overlooked a variable – charitable gifts – that offers a common ground where the two sides should agree. The public benefits associated with saving failed charitable testamentary gifts more than offset the increased administrative costs and potential for fraud associated with the harmless error and power-to-reform doctrines. That conclusion, however, also reframes the issue with respect to the remaining universe of failed testamentary gifts. Do the benefits derived from saving failed noncharitable testamentary gifts exceed the increased administrative costs and potential for fraud associated with the harmless error and power-to-reform doctrines?