Minimizing Probate-Error Risk

Abstract

Probate-error risk is the possibility that a court will incorrectly assess the authenticity of a will. By prescribing the method courts use to evaluate the authenticity of wills, the law of will-execution allocates probate-error risk between false-positive outcomes and false-negative outcomes. When a court validates an inauthentic will, it creates a false-positive outcome. When a court invalidates an authentic will, it creates a false-negative outcome. Because false-positive outcomes result in the admission to probate of inauthentic wills and false-negative outcomes result in the denial of probate of genuine wills, both can be characterized as probate errors. This framework has been used to identify the problem with the conventional law of will-execution, which is that it generates unnecessary probate errors by heavily allocating risk in favor of false-negative outcomes. It has also clarified the objective of will-execution reform, which is to reallocate risk more evenly between false-positive outcomes and false-negative outcomes so that the total number of probate errors is minimized. This Article applies this framework more broadly to analyze potential methods of will-execution reform. Specifically, this Article identifies the various components of the law of will-execution that can be altered to reallocate probate-error risk and evaluates how different methods of reform can be manipulated to reallocate risk to varying degrees. With a better understanding of what is possible, state policymakers may be more willing to break away from the conventional law and implement change.