Article on Testamentary Promises between Selflessness and Self-Interest

Alexandra Braun recently published an Article entitled, Testamentary Promises between Selflessness and Self-Interest, Wills, Trusts, & Estate Law eJournal (2017). Provided below is an abstract of the Article:

Law often indicates a suspicion of gifts and, in particular, of promises to make a gift. This is principally due to a concern that such promises are made without sufficient deliberation, apparently because they benefit another person without the promisor gaining anything in exchange.

Against that backdrop, this paper investigates the role of selflessness in the context of testamentary promises, that is, of a testator’s promise to benefit someone in his or her will. It questions the assumptions that all gift promises are altruistic and that they are therefore irrational and should not be enforceable unless expressed using certain legal formalities. Drawing on the findings of sociologists, anthropologists, and economists, the paper argues that testamentary promises are often likely to be less altruistic than lifetime promises of a gift. The case law offers many instances of uses of testamentary promises that are far from purely selfless, including influencing others and exercising power over them. This paper serves, then, as a counterweight to the common story of the undeserving promisee and the frail and vulnerable promisor. It shows that testamentary promises frequently involve a degree of reciprocity that can benefit both. Ultimately, what may look like a selfless act may actually be a self-interested one.

Special thanks to Robert H. Sitkoff (John L. Gray Professor of Law, Harvard Law School) for bringing this article to my attention.