Deborah Gordon of Drexel Law has posted "Mor[t]ality and Identity: Wills, Narratives, and Cherished Possessions" on ssrn. Cribbing now from her abstract:
Franz Kafka is credited with observing that “the meaning of life is that it stops.” This recognition — that life’s one certainty is certain death — has been the source of great artistic, scientific, political, and personal inspiration. How we have lived over the course of our days — our individual and collective histories — and how we will be remembered by those who survive us — our legacies — are bridged not only by our achievements and relationships but also by cherished items of property that we have accumulated and decided to pass on. This type of possession often has a narrative that endows it with meaning. By incorporating a personal property narrative into testamentary documents, a decedent can transcend her mortality by infusing it with her morality.
This Article starts by discussing connections between property law and language, explaining how property theorists have used metaphorical and narrative language about “things” to explore the political and economic communities the property creates among the people who have interests in those things. The Article then explores various inheritance texts, both fictional and legal, to demonstrate the multiple ways narratives and inheritance intersect and together “transmit traditions, cultural values, and ideologies.” The balance of the Article explores the potential for stories about cherished possessions to democratize inheritance law and enhance its purposes. It does so, first, by proposing model language to assist individuals and individuals and their lawyers in drafting conveyances that acknowledge the narrative power of cherished possessions. Having surmounted this procedural hurdle, the remaining sections argue that the current practice of trivializing personal property dispositions, either by relegating them to separate non-binding memoranda or not dealing with personal property at all other than in a general or residuary clause, are missed opportunities. Building from empirical studies that show how individuals identify with personal possessions, often because of the memories associated with those items, this Article argues that including these family histories in testamentary documents can help make estate planning more accessible and meaningful to a broad range of property owners. Encouraging personal property dispositions that include narratives also benefits survivors; psychological research shows a relationship between family stories and resilience, and sociological studies support the idea that sharing stories aids in bereavement. Finally, using this narrative approach as a strategy for encouraging broader participation in estate planning will benefit the inheritance system more holistically.
If you teach trusts and estates or property (or are interested in the relationship between property and memory), I think you'll be very interested in this. One thing that this makes me wonder about is whether intestacy needs to (or could reasonably) adapt to account for such important personal property. But more importantly, building off Deborah's article, I wonder if we should "read" wills using her insight by looking at the value of devises. That is, I think that even when testators do not leave explicit statements regarding property, their choices about distribution of property leave important statements about property. This is one way historians have used wills to draw distinctions between New Englanders in the eighteenth century, Quakers in Pennsylvania and New Jersey, and those in the Chesapeake. And I suppose one other question that Deborah's paper invites is how devises of human beings in pre-Civil War wills affected — and tells us about — African American families. One under-studied subject is how wills of slave-owners divide slaves at the death of testators. Those divisions reflect both the testator's desires for which of his (or her) family members receive humans and also how those testators treated African American families. One of the things that really struck me when I first started reading wills of slaveowners lo' those many years ago was how much data they contain about African American families, too — such as the names of enslaved people and often their family relations (parents, children).
Deborah's article makes me think again that we're on the brink of a real expansion of trusts and estates scholarship. We're asking much broader questions than have been traditionally been asked about the subject and we're building a critical mass of people interested in areas from psychology to gender, pedagogy and of course doctrine.