Dead Hands: A Social History of Wills, Trusts, and Inheritance Law

By Lawrence M. Friedman | Go to book overview

CHAPTER 4
BREAKING A WILL
Will Contests and Their Social Meaning

EVERY PROBATE CODE contains clauses on procedures for “breaking a will,” that is, contesting it. These procedures are more or less elaborate. But in fact, very few wills are ever contested. All the studies of probate estates agree on this point. In a sample of wills in 367 estates in Dane County, Wisconsin, between 1929 and 1944, there were only six will contests.1 A study of 7,638 wills, filed for probate in Davidson County, Tennessee, between 1976 and 1984, found that less than 1 percent of these were contested—sixty-six in all.2 In San Bernardino in 1964, out of 342 testate files, some attempt was made to contest the will in only seven instances.3 And these “will contests” found in the files did not all go to trial. Some of them settled out of court; others were simply dismissed or withdrawn. In the Davidson County sample, twenty-four of the sixty-six were settled out of court; ten were dismissed or withdrawn by the plaintiffs themselves; the court discarded another four. Less than half of the contests actually went to trial.

Some of these dismissals and withdrawals might, of course, disguise an outof-court settlement that leaves no record behind. It is possible, too, that more wills are contested—or at least objected to—than the studies suggest. Every year there are surely thousands of men and women who are disappointed with

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Dead Hands: A Social History of Wills, Trusts, and Inheritance Law
Table of contents

Table of contents

  • Title Page iii
  • Contents vii
  • Acknowledgments ix
  • Chapter 1 - Introduction 1
  • Chapter 2 - Distribution After Death 15
  • Chapter 3 - The Last Will and Testament 58
  • Chapter 4 - Breaking a Will 82
  • Chapter 5 - Will Substitutes 100
  • Chapter 6 - Dynastic and Caretaker Trusts 111
  • Chapter 7 - Control by the Dead and Its Limits 125
  • Chapter 8 - Charitable Gifts and Foundations 140
  • Chapter 9 - Death and Taxes 171
  • Chapter 10 - Conclusions 179
  • Notes 185
  • Index 217
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