The Inappropriate Imposition of Court-Ordered Mediation in Will Contests
Following the successful implementation of court-ordered mediation programs in divorce and family law cases, similar programs are being adopted to mandate the use of mediation in other areas of litigation. Complex emotional and personal issues can easily transform inheritance into a destructive process, and an increasing number of courts are ordering probate disputes and will contests to mediation. The freedom of the individual to designate his heirs is a foundational norm that permeates doctrine in the law of wills, and as a result, the idea of testator intent has reached near-mythical stature. Conversely, mediation shapes settlement without rigid deference to legal rules and often marginalizes the intent of the testator as an impediment to reaching agreement. Because the approach taken in mediation directly conflicts with the legal rules applied by the courts adjudicating those same cases, a legitimate question is raised as to whether or not instituting court-ordered mediation programs that mandate mediation in will contest cases is appropriate. The contention of this Article is not that mediation is inappropriately used by the parties to a will contest case, but instead that court-ordered mediation is inappropriate. Mandatory mediation imposes an obstruction on the right of access to the courts that is inappropriately imposed when the process contravenes the substantive law of the case. This Article proposes an easily-implemented legislative solution that resolves the conflict between law and process.
Freedom of Testation / Freedom of Contract
This Article argues that lawmakers ought to recategorize inheritance law and contracts law as cognate bodies of doctrine within a larger genus of transfers law. The Article proceeds to examine comparatively the justifications for freedom of contracts and freedom of testation, concluding that their underlying rationales are largely, although not entirely, symmetrical. This conclusion suggests the usefulness of comparative analysis of substantive limitations imposed on each of the two freedoms, which may prove inconsistent with each other or, what is worse, incompatible to the extent that contractual forms of transfer can functionally substitute for testamentary forms of transfer. In fact, such inconsistencies and incompatibilities do exist within several of the doctrines currently limiting a testator's freedom to craft an estate plan. These findings suggest the need to reconcile substantive doctrines within the fields of wills and contracts, a process that will require lawmakers to redraw the boundaries of freedom of testation.
The Prudent Investor Rule and Trust Asset Allocation: An Empirical Analysis
This article reports the results of an empirical study of the effect of the new prudent investor rule on asset allocation by institutional trustees. Using federal banking data spanning 1986 through 1997, the authors find that, after adoption of the new prudent investor rule, institutional trustees held about 1.5 to 4.5 percentage points more stock at the expense of "safe" investments. This shift to stock amounts to a 3 to 10 percent increase in stock holdings and accounts for roughly 10 to 30 percent of the over-all increase in stock holdings in the period under study. The authors conclude that the adoption of the new prudent investor rule had a significant effect on trust asset allocation.