The pervasive social policy underlying the Anglo-American law on succession of property at death is freedom of testation. Our law makes meaningful one's right to decide who shall inherit his property by providing a legal instrument, the will, to distribute property to chosen recipients. When a man dies without having exercised this right, however, the laws of intestate succession determine who shall receive his property, and in what shares it shall be received. In effect, the laws of intestate succession are an estate plan written for the decedent by his state legislature. These laws do not function as a restriction upon the freedom of testation; rather they serve as an alternative to it. It is generally thought that laws of intestate succession should distribute the estate of a man who dies without having written a will in the manner he would have chosen had he written one. A statutory pattern of estate distribution should therefore reflect an appraisal of probabilities. The legislature should attempt to determine how most persons would distribute their estates and then create rules of succession to carry out this pattern. It does not appear, however, that the present laws of intestate succession accurately mirror the usual dispositive wishes of the average person. Indeed, recent quantitative research based on experience indicates the contrary and highlights the need for reform of the intestate succession laws. In England, the committee responsible for rewriting the laws of intestate succession in 1951 examined a sample of wills in order to inferentially determine the dispositive wishes of those who had not written wills. Two recent American studies have followed in the footsteps of the English will studies. Professor Allison Dunham of the University of Chicago Law School gathered a random sample of estates probated in Cook County, Illinois, in 1953, and another random sample in 1957 and analyzed them to determine, among other things, the tendency of wills to depart from the distributive pattern of the Illinois Statute of Descent and Distribution. A team of two sociologists and a lawyer at Case Western Reserve University made a similar study of Cuyahoga County, Ohio estates as identified through probate court records of estates closed in 1965. The studies concluded that the distributive pattern of the English, Illinois and Ohio statutes of intestate succession do not accurately conform to present distributive desires, and that revision of these laws was required in order to ensure distribution of the estate to those whom the studies indicated would have been the most likely recipients had a will been written.
Thomas J. Mulder,
Intestate Succession Under the Uniform Probate Code,
U. Mich. J. L. Reform
Available at: https://repository.law.umich.edu/mjlr/vol3/iss2/4