The Oklahoma Bar Journal November 2024

P robate

How Free Is Testamentary Freedom? Sanism, Ageism and Testamentary Intent By Richard J. Goralewicz T HEORETICALLY, TESTAMENTARY FREEDOM serves as the hallmark of American law as it pertains to wills and estates. 1 When I say “theoretically,” I mean as a matter of praxis (as in its denoting an accepted practice or custom) rather than a matter of law. As to the latter, there should be no real dispute as to the reality of testamentary freedom as a matter of black letter law. In fact, the United States Supreme Court has decried regulatory destruction of “one of the most essential sticks in the bundle of rights that are commonly characterized as property – the right to exclude others.” Similarly, the regulation here amounts to the abrogation of the right to pass on a certain type of property – the small undivided interest – to one’s heirs. In one form or another, the right to pass on property – to one’s family in partic ular – has been part of the Anglo-American legal system since feudal times. 2

intent to restrict the expression of the ward’s wishes as to how her property may be distributed. The only requirement clearly appears concerned with preventing an atmosphere of undue influence at the time the testamentary instrument is executed. 4 This describes the appropriate role for courts faced with the pros pect of overruling the testator’s declared intent. Only in the clear est of cases should intervention occur. If intervention is necessary, we need to act to preserve the dig nity of the elder and be cautious to not supplant the elder’s wishes with our own values and opinions even if protection from financial abuse may be needed.

Here we are presented with a specific provision restricting the exercise of the ward’s right to devise property. The provision requires a testamentary instru ment to be executed in the pres ence of a district judge. Just as the provision restricting the right of the ward to enter into contracts was clearly intended to protect the ward from situations where undue pressures could influence the ward because of the ward’s decreased physical capacity, so too does the provision restricting testamentary devise exhibit an intent to protect the ward from another situation where the ward might be subject to undue influ ence because of her physical con dition. The legislation exhibits no

Oklahoma also recognizes the concept of testamentary freedom, albeit subject to legislative regula tion . 3 Indeed, Oklahoma statuto rily limited testators’ powers in a number of familiar ways, including spousal election, pretermitted heir provisions, formalities of form and execution, probate homestead and everyone’s favorite, the rule against perpetuities. Yet, overall, Oklahoma’s statutory inroads on complete testamentary freedom appear mild and benign in form and execution. For example, the Oklahoma Supreme Court in Matter of Estate of Lahr explained the policy behind requiring a ward to execute a will before a judge:

Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff.

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THE OKLAHOMA BAR JOURNAL