Adam J. Hirsch (University of San Diego School of Law) has posted Will as Thing (UC Davis Law Review, volume 59, issue 4 (forthcoming 2026)) on SSRN. Here is the abstract:
Properly viewed, wills are two things in one: they are tangible objects and bundles of rights. Scholars have long contemplated property and contract from this dual perspective. Thus far, no one has examined wills through the same bifocal lens. This Article endeavors to do so. It argues that the physicality of wills has often blinded lawmakers to their concurrent abstractness as estate plans. The resulting fixation on wills as objects has distorted rules governing the execution, revocation, and substantive provisions of wills, treating material "outside" a will differently from intrinsic material and often causing lawmakers to invalidate extrinsic material. Public policy dictates a more relaxed approach, allowing courts to consider all material associated with a will and to treat it collectively, this Article argues. Similarly, the physicality of wills has caused lawmakers to conceptualize the hybrid category of will contracts too narrowly and literally. Lawmakers have misconceived them as promises to execute a particular type of document rather than as promises to pay a sum at death, with unfortunate consequences both for rules of formalization and rules of relief for breach. The Article also undertakes the first-ever empirical study of laypersons' expectations about how to make will contracts binding. The Article concludes by exploring more broadly the tangible/abstract dichotomy as a general feature of law.
Recommended.