Historical View of Testamentary Freedom

Susanna L. Blumenthal (Assistant Professor, University of Michigan Law School), has recently published her article entitled The Deviance of the Will: Policing the Bounds of Testamentary Freedom in Nineteenth-Century America, 119 Harv. L. Rev. 959 (2006).

Here is the conclusion of her article, sans footnotes:

When the issue of “will or no will” was litigated in nineteenth-century courtrooms, American judges regularly faced protracted disputes over the testator’s estate that also raised more fundamental questions about the constitution of the free and accountable agent. Certainly, the participants in these trials were strongly motivated by a desire to secure their fair share of the testator’s estate, and it cannot be denied that judges and jurors often responded to the equities of individual cases. Still, it would be a mistake to read the deployment of the hypotheses of insanity and undue influence by litigants, lawyers, and judges in this era as nothing more than attempts to rationalize moralistic judgments based upon the perceived fairness of the will. In each contest, the inquiry remained squarely focused upon the testator’s mind – the aim was to determine whether the disputed document was his will. As jurists took pains to emphasize throughout the century, the American law of wills did not authorize courts to set aside a will merely because it was “inofficious” or otherwise unconventional. The provisions of the document were relevant only insofar as they could be read as manifestations of a mind diseased, or a will overborne.

Yet in part because they were schooled in Common Sense, American judges early in the century had reason to doubt the sanity and freedom of those who deviated from the norms of “natural justice.” These doubts were only reinforced in the 1830s and 1840s as mental alienists offered further grounds for believing that aberrant behavior might indicate a disordered mind. Judges and jurists were at first quite receptive to these diagnoses, with some, like Wharton, even conceiving of medical science as part of the common law. However, the trial processes themselves gradually chipped away at the confidence they had in sciences of man promoted by philosophers and doctors, leading them to question whether there existed an objective standpoint from which to adjudicate matters of mental soundness. By the last quarter of the century, they had become convinced that the medical theories proved too much. These theories threatened to obliterate the distinction between depravity and disease, leaving the law with no metaphysical basis for assigning responsibility. In the face of this threat, judges and jurists sought to underscore the importance of clearly distinguishing the eccentric from the insane will, regarding this process as a vital means of safeguarding the ideal of human autonomy – against both state interference and the more distant and disturbing specter of determinism.

The validation of eccentric dispositions proceeded apace to the end of the century, as appellate judges far more often than not pronounced them “sound” as a matter of law, setting aside considerations of morals, metaphysics, and medical science. In the process, the model of the competent testator was recast to comprehend a wider array of eccentricity and depravity, appearing less ideal and more hypothetical in form and function. As judges engineered this reconstruction, they took a pragmatic turn in the adjudication of legal capacity, on both practical and philosophical levels. Of course, those who spoke of sanity and insanity in the “legal” sense were attempting to bring order to their courtrooms, overcrowded as they were with litigants, lawyers, and medical experts all claiming the power to read the testator’s mind. But this judicial method also importantly prefigured the various “Pragmatisms” intoned by prominent thinkers around the turn of the twentieth century. Daily immersed in the “tangled, muddy, painful and perplexed” world of everyday experience, Gilded Age judges came to appreciate the perversities of human nature and the limitations of their own minds. Lacking the moral certainty of many of their predecessors, they developed a new way of thinking about the old problem of evil.

Eschewing abstract speculation and high-toned moralizing, the judicial pragmatists of this era took a relatively permissive stance as they policed the bounds of testamentary freedom. Although the “reasonableness” of the testator’s disposition remained an important consideration in borderline cases, judges used this keyword in the broadest possible sense, all but embracing eccentricity as the norm – at least so far as the testator’s last will was concerned. But even they were prepared to admit that there were testamentary acts that no sane man would freely perform, and those they stood ready to invalidate. Thus, they remained committed to the onerous and time-consuming task of ferreting out the truly meritorious claims – insisting that the liberty of the will was sometimes best preserved by finding in favor of the contestant. This picture of everyday adjudication hardly accords with conventional renderings of the last decades of the nineteenth century as a time when courts were adopting more objective standards and bureaucratic procedures. As this Article shows, even Gilded Age judges did not, as instrumentalist analyses of legal realists and more recent scholars have suggested, impose societal norms of reasonableness in order to streamline judicial proceedings or reinforce conventional patterns of property transmission. The instrumentalism of their decisionmaking was closer to the Pragmatisms of William James, Oliver Wendell Holmes, Jr., and John Dewey. For, in handing down their decisions, late-nineteenth century judges were far from certain that most testators enjoyed anything like perfect mental health. But they had come to see that “what is rational to one man is highly irrational to another,” leading them to believe there was much they could never know about another’s mind. And so they validated apparently perverse wills precisely because of their doubts about the truth of the matter and because of the value they placed on the idea of human freedom. In so doing, they evinced an appreciation of what James dubbed the “cash value” of various conceptions of the human condition, and an awareness that a transcendental realm of truth might be unattainable. From where they were sitting, one suspects this was almost an irresistible inference.