Abstract
The access to justice problem has been the cause célèbre of the social justice movement in the United States for many years, with calls for the legal community to support legal services programs and contribute pro bono hours. The stark reality is that while sixty-one million people are potentially eligible to receive legal aid, most will find themselves unassisted when need arises. Notably, however, the access to justice problem in this country reaches beyond the poorest and most disadvantaged. The working-class and middle-class are ineligible for legal services programs but often find themselves unable to afford standard attorney rates. While access to information through technology should allow basic legal issues to be resolved in an efficient and predictable manner, the reality is that the complexity of the system interferes. The business of dying is extremely lucrative for estate planning attorneys and probate practitioners, and the legal process has been designed to accommodate the represented. To that end, an overarching purpose of this Article is to explore the idea of revising probate statutes to protect the self-represented from an obvious pitfall, especially when and where it is clear that the underrepresented and unrepresented are going to blindly fall into the pit. This discussion is framed within the context of an obvious flaw that presently exists in states that allow holographic wills: protection of the layperson from simultaneous or closely proximate death scenarios.
Twenty-six states recognize the validity of holographic wills, which are wholly or partially handwritten wills commonly utilized by the self-represented testator. While the will of a competently represented testator contains survivorship language as a matter of course, the holographic will of the self-represented layperson is unlikely to include the legalese of survivorship language. Only ten of the twenty-six states authorizing holographic instruments have adopted language that protects the instruments with a default 120-hour rule in the absence of contrary language. The remaining sixteen states have chosen to implement incomplete language that does not apply the 120-hour rule to holographic instruments, or alternatively, to reject adoption of the 120-hour rule altogether. The consequence is that while twenty-six states have authorized holographic wills as a convenience for those unable to retain counsel, sixteen of these states have implicitly endorsed and enabled self-representation while also failing to make simple, nonconsequential adjustments to the probate codes that would ease the path of the self-represented. It is in this failure that something implicit and troubling can be found.