In Irresolute Testators, Professor Jane Baron provocatively suggests the existence of two distinct types of testators: the rational, autonomous testator who has made deliberate choices about the contents of her will and whose errors, if any, are minor; and the more vulnerable, less resolute testator who may not have actually made the final decisions enshrined in a formal will. To illustrate how these testators appear in wills law, she analyzes how courts apply the doctrines of harmless error and mistake reformation. While the two doctrines appear to be intended to help the resolute testator, courts instead, she suggests, also apply the doctrines to help the irresolute testator. In causing us to reflect on the distinctions between dispository intent and a formal writing recognizable as a final statement, on rational and boundedly rational testators, on final and almost-final declarations, her article focuses us on the art of line-drawing in wills law. In this commentary, I explore another context that similarly raises issues about testators whose final intent is not clearly expressed: when can a disappointed beneficiary sue the drafting attorney for malpractice? The doctrine of privity confronts the spectre of the irresolute or inconclusive testator, yet courts have developed some dividing lines that differ from those they have developed surrounding harmless error.Privity seems to offer another illustration of how bright-line rules do not necessarily achieve dispository intent, although the privity rules do achieve certainty on only allowing final dispository statements (that are incomplete or show a lack of resolution) to provide a basis for a malpractice action. This commentary applauds Professor Baron’s achievement in focusing us on the limits of the wills reform doctrines and the significance of accounting for different types of testators.
July 17, 2016