Legal maxims calcify. It is often unclear whether a given saying – particularly a catchy one that seems to make perfect sense – was always and remains actual law, or whether at some point its iteration and confident reiteration alchemized a useful shortcut into something much more. Such is the case for the aphorism that “no will speaks until the death of its maker,” which is pervasive but incomplete. Wills speak upon execution all the time. They simply don’t speak as conveyance. Candidly recognizing the determinism of the maxim invites fresh inquiry over the nature of the expectancy. If wills do have a voice upon execution, perhaps pre-mortem probate is less oxymoronic than it sounds. Perhaps will beneficiaries could have standing to challenge some conduct, or reject the rejection of revival, or sue to protect an expectancy. And heretical as it may sound, perhaps the expectancy slides closer to property than the law would have liked to admit. If so, at what cost and what benefit, and with what new applications to test? There is much we can learn about property if we are willing to listen to wills.
85 Brook. L. Rev.
Available at: https://brooklynworks.brooklaw.edu/blr/vol85/iss3/2