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Reid Weisbord and David Horton have undertaken an incredibly important empirical study in an area of law that suffers from a large gap in our understanding of how people actually choose to leave their property at their death and the drafting traps that can easily lead to litigation. The study is also important for illustrating how the lawyers we teach in Trusts and Estates need to be more careful in drafting the various documents to manifest their clients' testamentary intent. In particular, Weisbord and Horton studied 230 recently probated wills in Sussex County, New Jersey and discovered that the use of boilerplate language in certain key provisions can have troubling consequences for the testators and their beneficiaries. In examining these wills, Weisbord and Horton discovered that there was a consistent use of boilerplate language in four provisions: (1) the just debts clause; (2) the tax apportionment clause; (3) the method of representation for class gifts; and (4) the survivorship language necessary to defeat application of anti-lapse statutes. After examining the implications of the use of boilerplate in these four provisions, Weisbord and Horton argue that probate laws should make the default rules “stickier” so that it is more difficult for testators, or their attorneys, to draft around the defaults. This was especially true in situations where bad drafting often led to litigation.
I found their data and arguments compelling and vital to a comprehensive understanding of how probate laws, probate lawyers, testators, and beneficiaries all interact in the effectuation of testamentary documents. In my brief commentary, I will discuss each of these four provisions (somewhat out of order) and offer additional thoughts and observations that may inform future research in this area.
Danaya C. Wright, Commentary on Reid Kress Weisbord and David Horton, Boilerplate and Default Rules in Wills Law: An Empirical Analysis, 103 Iowa L. Rev. Online 123 (2018)