The Proxy Will: Current Statutes and Their Limits
(professor of law, University of Memphis) has published his article entitled Policy, Perspective, and the Proxy Will, 61 S.C. L. Rev. 63 (2009).
Among the many legal documents an individual executes during his lifetime, the will is likely to be the most personal. A testator’s solemn declaration concerning the distribution of his estate inevitably reveals part of his uniqueness: who he is, whom he loves, and what he values. Whether florid and fussy or blunt and brief, the will tells an important part of his life story. Not surprisingly, for hundreds of years statutes of wills have assumed that only the testator himself can design and execute his plan of testamentary distribution.
A recent development in conservatorship laws, however, profoundly changes this historical assumption. Without hoopla, several states have enacted laws that permit a conservator to make, amend, or revoke the will of a protected person if the conservator obtains judicial approval.
This Article examines the new world of proxy will making. It explains the incompleteness of current proxy will making statutes and questions the propriety of their default positions. The Article also questions whether the proxy will, once unleashed, can or should be confined to conservatorship proceedings. Because the durable power of attorney is a document that many individuals execute in hope of avoiding a conservatorship, the Article explores whether states should permit an agent to make a proxy will if the principal explicitly grants the agent that authority.
Ultimately, the primary goal of laws recognizing a proxy will should be to respect the testator and his known or probable wishes. The Article concludes that recognition of the proxy will under carefully defined rules is a logical step forward in probate law’s continuing effort to fulfill testamentary intent.