Arizona Law Review
Ariz. L. Rev.
This Article shares two ideas for reform of the law surrounding testators' expressed preferences and the doctrine of insane delusions.
First, the doctrine of insane delusions should not be applied to devises that seek to advance beliefs, ideas, or viewpoints. There is just too great of a risk that judges and juries will strike down such devises when the testator’s viewpoints diverge from their own.
Second, the time may have come to admit that the law of wills is not as committed to the principle of testamentary freedom as it is often espoused to be. The literature is rife with examples of a latent norm of familial support. Currently, this norm is expressed when judges and juries manipulate flexible doctrines to distribute decedents’ estates to decedents’ family members against decedents’ stated preferences. Perhaps it is time for the law to expressly acknowledge that familial support is important in our society and reserve a share of every decedent’s estate for distribution to the decedent’s family.