Contemporary trusts and estates law is built on the premise that individuals can and should have fixed intentions with respect to the disposition of their property at death. These intentions can and should be fixed in a written document, and that document can and should be fixed against other outside evidence of intention. Experience with end-of-life health care decision making gives reason to question these premises. In the health care context, intentions have proven to be fluid, and the documents purporting to record individuals’ wishes have often proved unreliable.
This paper examines the implications for wills of the literature on end-of-life health care decision making. Advance health care directives and property wills are alike pre-commitments, attempts in the present to bind the future, but studies in the end-of-life health care decision making context show there are serious issues with this process. Individuals simply do not care to decide about post-competency treatment, those who do make such decisions often change their minds, and cognitive biases operate to limit individuals’ ability to predict accurately in the present what they will want in the future. Many of these issues arise also in the context of end-of-life property decision making and unsettle many of wills law’s fundamental premises about intention.
The final part of the paper suggests avenues for further empirical study and explores the practical significance of this potential research for estates law, particularly the potential to displace the vision of the estates attorney as a passive scrivener who simply asks what the client wants and writes it down. It may be that the wishes expressed in a will may be formed in response to, and shaped by, the attorney’s questions rather than being brought out by those questions. The paper concludes by asking whether there might be a way to honor fluid intentions in the property context that does not destroy the utility of testamentary documents as a safe harbor.
Baron, Jane B, Fixed Intentions: Wills, Living Wills, and End-of-Life Decision Making (2019). 87 Tennessee Law Review (2020), forthcoming; Temple University Legal Studies Research Paper forthcoming.