Deborah S. Gordon has published an article, “Letters Non-Testamentary” in the Kansas Law Review, which is available for download on SSRN. The abstract reads as follows:
Letters written in anticipation of death, so-called “last letters,” appear frequently in American case law, especially when inheritance is at issue. One common appearance is when such letters are offered to serve as wills for decedents who leave no other written indication of testamentary intent. Even where a properly attested will exists, though, many courts have construed letters as codicils – addenda – to the more traditional instruments, though such letters sometimes contradict or substantially alter the original wills. Courts also use letters as tools for interpreting ambiguous documents and as mechanisms for determining whether a formal property arrangement, a trust or conveyance for example, exists in the first place. Finally, courts have admitted letters into evidence to assess claims that a testator lacked capacity or suffered other testamentary infirmities. In other words, there is no question that last letters have influenced inheritance law and its participants, but just how and why has been unexamined, especially where the letter writers concede that the informal communications are not intended to be binding dispositions of their property or, in other words, where the letters are deliberately “non-testamentary.”
Sometimes called “letters of wishes,” these letters “non-testamentary” are written by individuals who know and accept the law’s purpose and effect: they choose to execute formal wills to leave property to their loved ones; they choose to sign trusts to interpose a fiduciary between their beneficiaries and their wealth. Yet the authors supplement the legal documents with a written genre that is less formal, less traditional, and ostensibly not legally binding. But such letters non-testamentary tend to reveal what lies beneath the writer’s “will” – both the document and the intention – itself. Because third parties – courts for example – are not a contemplated part of the exchange between writer and recipient, complications arise.
While others have bemoaned the inconsistencies that such homemade letters produce, this Article takes the opposite position: it argues that letters non-testamentary highlight a productive tension between lawyer-created documents that are clear and tax-efficient but often devoid of feeling and the reality of death as a frightening event that involves messy emotions and relationships. This humble, intuitive, and accessible genre allows writers to connect to their readers and confront their own deaths in a way that the standard instruments often do not. Indeed, property owners turn to the genre to fill emotional, rhetorical, and sometimes even legal gaps. As such, letters non-testamentary help outside readers learn about deficiencies that the current system promotes, like the writers’ lack of confidence with their documents. Finally, homemade last letters are illuminating because they show how ordinary people reconcile the dichotomy between efficiency – getting property where it should go – and emotion that lies at the heart of planning for separation and death. Because a family has much to lose when a will is challenged and much to gain when the probate process is easy and uncontested, a writer who builds empathy in her survivors through a letter non-testamentary may accomplish far more than if she relied solely on her formal documents.
Recognizing the potential for the contradictions and ambiguities that homemade and informal communications may engender, this Article nevertheless argues that letters non-testamentary play an important role in planning for death, which may be why they have persisted through time and are likely to continue, even as the genre shifts form in today’s digital age.