Document Type

Article

Publication Date

9-5-2013

Abstract

Minors lack the legal capacity to execute wills Subject to limited exceptions in some states a will executed by a child is void Because this testamentary age requirement conflicts with the primary objective of the law of wills which is to allow decedents to freely choose how their estates will be distributed this rule should be founded upon a coherent and compelling policy rationale Nonetheless it is notThree potential rationales might explain the testamentary incapacity of minors First the age requirement could represent a categorical capacity threshold that is aimed at protecting children from their immaturity and indiscretion Second the age requirement could be seen as a proxy for the minimum mental competency that the law requires of all testators Finally the age requirement could implement forced parental inheritance under which the estates of minors are funneled into intestacy and are distributed to their parentsThis article explains how each of these potential rationales fails to adequately align with the mechanics of the current testamentary age requirement The article ultimately calls for the elimination of the categorical age restriction on testamentary capacity It also proposes additional reforms that would better serve the policy objectives of the testamentary age restriction but that would allow children to more frequently execute wills

First Page

69

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