Testation and the Mind

By Hirsch, Adam J. | Washington and Lee Law Review, January 1, 2017 | Go to article overview

Testation and the Mind


Hirsch, Adam J., Washington and Lee Law Review


Table of Contents

I. Introduction.....286

II. Volition......290

III. Deliberation.....299

A. Capacity.....299

B. Mistake .....315

C. Insane Delusion .....326

IV.Impositions.....337

A. Fraud .....338

B. Undue Influence...346

V.Dynamics.......355

VI.Postmortem....363

I. Introduction

Should lawmakers care what people think? Rules can, and often do, apply to behavior alone-whether judged on the basis of reasonability or some other metric-laying aside all reference to subjective experience. For his part, Justice Oliver Wendell Holmes, Jr., advocated the evaluation of all conduct on the basis of what he called "external standards,"1 and he insisted that "[t]he law has nothing to do with the actual state of the parties' minds."2 Proposals to confine branches of law to reckonings of parties' acts continue to appear from time to time.3 Stepping back, we can behold a fundamental problem of jurisprudence: In what circumstances, and to what ends, should lawmakers peer into the black box of mental states, given its opaqueness-even in this day and age-to all but a few bands of light?4

In some areas of law, the answer is clear. Mens rea signals moral culpability and, in instrumental terms, identifies instances where we can achieve specific deterrence of injurious or risky conduct by knowing parties.5 Yet in other fields, concerned with acts that cause no harm, deterrence either fails to arise or does so only when a wrongdoer enters the scene. Within any such area, we must develop new justifications for subjectivity. The point to emphasize is that, at every juncture where human agency is implicated, lawmakers have a choice to make-a choice, that is, between imposing what we shall call a "state-of-mind rule" and an external standard. We need a theory for selecting one or the other.

This Article explores the problem in the field of inheritance law. In this placid vineyard, where wrongdoing rarely appears, I will argue that the key considerations are information and decision costs. The mind of a testator teems with data, but data that is difficult to access, and assess, without risk of inaccuracy or misrepresentation. Death compounds those risks. Even so, evidence of state-of-mind may prove cheaper and less risky to work with than alternatives. We should premise our choice on considerations of relative utility.

We shall explore the problem here-unusually-from a wide perspective, taking in all of the instances where lawmakers have considered, or have considered considering, a testator's state of mind in evaluating the validity of a will.6 For the most part, prior scholarship on state-of-mind rules has addressed them individually, an approach as typical of lawmakers as it is of commentators. A narrow focus facilitates in-depth analysis. Its less obvious demerit is a tendency to obscure context. When lawmakers craft rules in isolation, inconsistencies can creep in, and insular study may continue to blind us to those inconsistencies. In such circumstances, the switch to a panoramic view can be eye-opening. Before we can conceive anything approaching a general theory of state-of-mind rules, we shall have to regard them side by side.7

Simultaneously, we will endeavor to bring to bear insights from other disciplines-principally those of economics and psychology. The first pertains to all topics legal; the second relates more particularly to any rule having to do with decision making. Thus far, commentators have lagged in their application of interdisciplinary analysis to the inheritance field, which remains a technical sanctuary by and large.8 As such, it wants a cutting edge. The field will have to catch up, before it can catch on.

Assaying our subject at a structural level, we can identify states of mind relevant to the validity of a will as falling into any of several categories. One concerns a party's volitional state- what a party was thinking. …

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