Testamentary Freedom: A Constitutional Perspective

As the 2024 Legislative Session in Oklahoma concluded, the House Judiciary Committee recommended HB 3505, a bill addressing the validity of estate planning instruments for individuals diagnosed with Alzheimer’s, dementia, or other cognitive impairments. The proposed law would invalidate any powers of attorney, wills, trusts, or amendments made after such a diagnosis, as well as any instruments created or amended within two years prior. In cases of invalidation, the original document would take precedence. While the bill did not advance to a vote on the House floor, its potential reconsideration raises significant legal and ethical concerns.

Critics argue that HB 3505 is problematic due to its rigid, mandatory language and retroactive effects. The bill presumes testamentary incapacity without requiring factual evidence, barring individuals with cognitive impairments from engaging in estate planning by default. This approach diverges from traditional practices, where a testator’s competency is a factual question determined by courts, often allowing individuals under guardianship to make wills under judicial oversight. By creating a statutory presumption of incapacity, the bill shifts the burden of proof onto those seeking to uphold amendments, thereby circumventing established legal protections.

Additionally, the bill’s constitutionality under federal and state law remains uncertain. Critics suggest that HB 3505 could violate due process rights by stripping individuals of their ability to manage their affairs based on an arbitrary timeline rather than clear evidence of incapacity. The lack of individualized assessment undermines fundamental principles of fairness and autonomy, raising serious legal and ethical questions. As Oklahoma lawmakers consider similar measures in the future, the implications of HB 3505 warrant careful scrutiny to ensure compliance with constitutional standards and respect for personal agency.

For more information see Richard J. Goralewicz “Testamentary Freedom: A Constitutional Perspective” ACTEC Law Journal, Fall 2024.