In the United States, the law of wills professes to be organized around the principle of freedom of testation. “Work and earn and save,” it says, “so that you can pass your wealth to whomever you please.” This principle is attractive, but it simply is not borne out in the administration of too many testators’ estates. Rather, judges and juries routinely substitute their preferred distributions for testators’ expressed preferences.
One particularly troubling situation arises when testators attempt to pass their estates to organizations that champion unpopular beliefs. If the deciding judges or juries dislike the testators’ beliefs, they may be tempted to invalidate these devises as the product of insane delusions. Sometimes these supposed “delusions” have been beliefs about divisive social issues—like advancing women in the early twentieth century. Other supposed “delusions” have been religious beliefs that depart from the mainstream faiths. Allowing judges and juries to label these beliefs “delusional” does not further testamentary freedom. Rather, it substitutes majoritarian preferences for the counter-majoritarian views of the testator. This is a dangerous proposition. It was once regarded as fact that the Earth was flat. Now the prevalent view is that the Earth is round. Should a devise that champions either one of those ideas be labeled “delusional”? Unfortunately, the outcome may be dictated by the popular opinion of the testator’s times.
This Article shares two ideas for reform. First, the doctrine of insane delusions should not be applied to devises that seek to advance beliefs, ideas, or viewpoints. There is just too great of a risk that judges and juries will strike down such devises when the testator’s viewpoints diverge from their own. Second, the time may have come to admit that the law of wills is not as committed to the principle of testamentary freedom as it is often espoused to be. The literature is rife with examples of a latent norm of familial support. Currently, this norm is expressed when judges and juries manipulate flexible doctrines to distribute decedents’ estates to decedents’ family members against decedents’ stated preferences. Perhaps it is time for the law to expressly acknowledge that familial support is important in our society and reserve a share of every decedent’s estate for distribution to the decedent’s family. The second proposal set forth in this Article, “the forced intestate share,” would compel distribution of a portion of each estate to the decedent’s intestate takers. Adopting some version of this proposal may actually afford testators with greater testamentary freedom overall because, by expressly fulfilling the norm of familial support, it would reduce decision-makers’ biased tendencies to invalidate devises to nonfamily members. Indeed, the counterintuitive solution to achieving greater actual testamentary freedom may be to remove testators’ control over some share of their estates through a forced intestate share.