Wills Above Ground

28 Pages Posted: 21 Mar 2016

See all articles by Thomas Simmons

Thomas Simmons

University of South Dakota Knudson School of Law

Date Written: February 19, 2016


With the widespread adoption of electronic court filing systems comes the ability to more easily and efficiently peer into the rich data of probate proceedings. Wills on the Ground by Professor David Horton, published in the UCLA Law Review, highlights both the potential and some of the inherent limitations of empirical research in the law of wills. Wills law has been the battleground of formalists and functionalists over the last half century, with both sides bearing the banner of testator intent, but neither backing up their proposals or counterproposals with much hard data about which better achieves their common aim. Professor Horton culls data from probate files to disprove predictions of litigiousness and runaway probate costs that were projected to accompany a departure from strict formalism. At the same time, his study encounters the difficulty of assessing the measure of decedents’ unstated goals. This article outlines will doctrines and past empirical probate studies and probes a future when relaxed formalism will be finely tuned by empirical data to achieve majoritarian testator intent.

Keywords: Wills, Empirical Research, Inheritance

JEL Classification: K19, K39

Suggested Citation

Simmons, Thomas, Wills Above Ground (February 19, 2016). Elder Law Journal, Vol. 23, No. 2, 2016, Available at SSRN: https://ssrn.com/abstract=2751455

Thomas Simmons (Contact Author)

University of South Dakota Knudson School of Law ( email )

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United States
605.658.3533 (Phone)
605.677.5417 (Fax)

HOME PAGE: http://www.usd.edu/faculty-and-staff/Tom-E-Simmons

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