Author: Jane Baron

Sometimes Normal is the Best Medicine

This is a personal story about how Temple Law has been a community for me. In February of 2016 I was diagnosed with a rare and aggressive form of breast cancer.  For a variety of medical reasons, I needed to start chemotherapy immediately.  The drugs in question have almost all the horrendous side effects of which you’ve probably heard—hair loss, nausea, problems eating, low energy. For about a month before I received the diagnosis, I had been teaching Property to a first year section, as I have done here at Temple for many, many years.  The class seemed to me to be going well, and—though several of my colleagues offered to take over teaching it—I did not want to give it up and become a full-time patient.  On the other hand, there was no way the students would, over time, fail to notice that something was going on with me.  The drugs were going to have a visible effect. “Everyone I’ve told so far has asked if there is something they can do.  And my …

Irresolute Testators, Clear and Convincing Wills Law

Controversial recent wills law reforms, embodied in new provisions of both the Uniform Probate Code and the Restatement of Property, excuse so-called “harmless errors” in will execution and permit judicial correction of erroneous terms in a will or trust. Both reforms pose evidentiary dangers, as proof of the error must come from outside the attested instrument and will be offered after the testator’s death. To respond to this concern, both the error and the testator’s true intent must be established by “clear and convincing” evidence. This article is the first to examine how courts have applied the clear and convincing evidence standard to these important reforms of wills law. In practice, the clear and convincing evidence standard provides less evidentiary protection than its proponents expected. More importantly, judicial struggles with the clear and convincing evidence standard expose a deep fissure in the very concept of testamentary freedom. The reforms assume — as does the Wills Act itself — a fully-formed, fixed set of choices that the testator has sought to express in his will, choices …