Although the right to recover for injury from admittedly defamatory matter would seem to be clear, the law imposes a series of obstacles when the offending statements are embodied in a will. Of the few cases which have arisen in this area, a recent decision, Carver v. Morrow, serves to illustrate the general problem. In this case, plaintiff claimed that portions of testatrix' will defamed him. After the will was probated, he brought an action against testatrix' executors on the ground that publication had been effected by probate, and that therefore a cause of action in libel existed against the estate. In affirming a lower court decision sustaining a demurrer to the complaint, the court held that, since publication did not occur until probate, testatrix could not have been sued for libel during her life. Hence, such an action will not lie against the estate unless the executor can be deemed her agent for the purpose of consumating the tort. Because the executor is an instrumentality of the law, he cannot be considered testatrix' agent in this sense. Further, there can be no agency uncoupled with an interest where there is no existent principal.
Charles Hansen S.Ed.,
LIBEL AND SLANDER-TESTAMENTARY LIBEL,
Mich. L. Rev.
Available at: https://repository.law.umich.edu/mlr/vol48/iss2/7