Document Type

Article

Publication Date

3-16-2016

Abstract

Because a will's authenticity is never certain probate courts sometimes make incorrect determinations regarding whether a purported will is a genuine expression of the decedent's intent When the court incorrectly admits an inauthentic will to probate a falsepositive outcome occurs Conversely when the court incorrectly denies probate of an authentic will a falsenegative outcome occurs Because falsepositive outcomes grant probate of inauthentic wills and falsenegative outcomes deny probate of authentic wills both can be characterized as ÔÇ£probate errorsÔÇØProbate errors are inevitable and consequently policymakers must decide how to balance the risk of falsepositive outcomes and falsenegative outcomes The conventional method by which courts authenticate wills favors falsenegative outcomes and minimizes the risk of falsepositive outcomes By contrast a reform movement argues that the willauthentication process should be less concerned with avoiding falsepositive outcomes and should instead focus more on overall accuracy Yet despite a compelling argument the reform movement has not satisfactorily explained why the proper goal of willauthentication should be accuracyThis Article uses decision theory to more fully explain both why the conventional law focuses on minimizing the risk of falsepositive outcomes and why the modern law should be crafted to minimize total probateerror risk Decision theory suggests that to identify the proper goal of a decisionmaking process one must compare the error costs of falsepositive outcomes and falsenegative outcomes If error costs are symmetric then the decisionmaking process should be designed to minimize the total risk of error However if error costs are asymmetric then the decisionmaking process should be designed to minimize the more costly type of errorThis Article is the first to systematically analyze relative error costs within the context of will authentication Specifically it argues that probateerror costs were previously asymmetric with falsepositive outcomes being more costly than falsenegative outcomes and it therefore explains why the conventional law minimizes the risk of falsepositive outcomes at the expense of an increased risk of falsenegative outcomes Furthermore the Article argues that probateerror costs have changed so that they are now more symmetric The recognition of this shift bolsters the reform movement's argument that the goal of will authentication should be increased accuracy

First Page

613

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