585 
Letters Non-Testamentary 
Deborah S. Gordon* 
Dear Shuhra and Shaharzad, 
Today I am going on political business to Faizabad and Darwaz.  I hope 
I will come back and see you again, but I have to say that perhaps I will 
not.  There have been threats to kill me on this trip.  Maybe this time 
these people will be successful . . . .  As your mother it causes me such 
bitter pain to tell you this.  But please understand I would willingly 
sacrifice my life if it meant . . . a better future for the children of this 
country.  I live this life so that you—my precious girls—will be free to 
live your lives and to dream all of your dreams. 
If I am killed and I don’t see you again, I want you to remember a few 
things for me. . . .  You have my authority to spend all the money I 
have in the bank.  But use it wisely and use it for your studies.
1
 
* * * 
Letters, compared to other genres, may appear humble, because they 
are so overtly tied to particular social relations of particular writers and 
readers, but that only means they reveal to us so clearly and explicitly 
the sociality that is part of all writing—they give the game away so 
easily.
2
 
* * * 
                                                          
* Assistant Professor of Law, Drexel University Earle Mack School of Law.  I would like to 
thank Tabatha Abu-El Haj, Al Brophy, Clare Coleman, Dan Filler, Jonathan Offenkrantz, and the 
Drexel University Earle Mack School of Law junior scholars group for reading and commenting on 
earlier drafts of this Article.  Thanks also to Pamela Bagdis and Kaili Janus, who provided valuable 
research assistance, and to Peter Egler, professional staff of Drexel’s Legal Research Center.  
Finally, I would like to dedicate this Article to the Maxwell family, for whom a last letter brought 
some measure of peace. 
 1.  FAWZIA KOOFI WITH NADENE GHOURI, THE FAVORED DAUGHTER 1 (2012). 
 2.  Charles Bazerman, Letters and the Social Grounding of Differentiated Genre, in LETTER 
WRITING AS A SOCIAL PRACTICE 16, 27 (David Barton & Nigel Hall eds., 1999) [hereinafter 
Bazerman, Letters]. 
  
586  KANSAS LAW REVIEW [Vol. 62 
I. INTRODUCTION 
The first time Fawzia Koofi wrote a letter to her young daughters, 
Shuhra and Shaharzad, was when she heard that Taliban militants had 
launched a “realistic threat” to destroy the vehicle transporting Koofi from 
her home to a political meeting with her constituents in Northern 
Afghanistan.
3
  Koofi, one of Afghanistan’s few elected female politicians 
and a candidate for president, fills her memoir with letters to her children 
composed each time she departed from relative safety to participate in 
political activities that both helped rebuild her native land but also exposed 
her to countless yet very genuine risks.  Originally titled Lettres à mes filles 
(“Letters to my Daughters”),
4
  Koofi’s memoir is vivid in its depiction of the 
war-torn country’s daily reality and haunting in its portrayal of the human 
reaction to such stresses, most notably the heart-felt letters that Koofi chose 
to place at her book’s core.
5
 
This epistolary response to an awareness of impending death appears 
frequently in literature, history, and popular culture.
6
  Some of the most 
startling and unusual examples of letters come from victims of imminent 
harm,
7
 who might scrawl a letter to a loved one on any writing surface 
                                                          
 3.  KOOFI WITH GHOURI, supra note 1, at 250; Author Interviews: A “Favored Daughter” 
Fights for Afghan Women, NAT’L PUB. RADIO (Feb. 22, 2012), 
http://www.npr.org/player/v2/mediaPlayer.html?action=1&t=1&islist=false&id=147060923&m=14
7247493. 
 4.  KOOFI WITH GHOURI, supra note 1, at ii. 
 5.  Private letters, especially when written by a person publicly known, are a source of 
fascination and have engendered their share of property disputes.  See, e.g., Property Rights in 
Letters, 46 YALE L. J. 493 (1937) .  The author Willa Cather’s letters, for example, will appear in a 
new anthology, notwithstanding that their publication “‘flagrantly’ violates Cather’s wishes, 
expressed in a will. . . .”  See Jennifer Schuessler, O Revelations! Letters, Once Banned, Flesh Out 
Willa Cather, N.Y. TIMES, Mar. 21, 2013, http://www.nytimes.com/2013/03/22/books/willa-cather-
letters-to-be-published-as-an-anthology.html?_r=0.  In support of their decision to take advantage of 
the will’s expired proscription, which did not appear in the trust to which the letters passed, the 
editors of the collection contended that the “lively, illuminating letters” will show Cather to be “a 
complicated, funny, brilliant, flinty, sensitive, sometimes confounding human being.” Id. 
 6.  See Sylvie Crinquand, Introduction to LAST LETTERS 2–6 (Sylvie Crinquand ed., 2008) 
(“Because of their significance, last letters have also been widely chosen by writers in fiction, as a 
narrative device, often used to dramatic effect.”); Tilda Maria Forselius, When Authors Say Good-
Bye to Readers: Last Letters in The Swedish Argus and Letter Exchange, Two Swedish Eighteenth-
Century Essay Papers, in LAST LETTERS 11, 11–12, supra (observing that fiction writers use 
personal letters as a “device to gain authority,” because letters appear to readers as authentic and 
accessible).  The essays Crinquand compiles in her book examine all forms of “last letters,” real and 
fictional.  See generally LAST LETTERS, supra. 
 7.  See, e.g., Crinquand, supra note 6, at 3–4 (describing how letters from persons on the eve 
of execution “express love for those who will live on, and offer some guidance, not unlike a will, on 
how to dispose of the letter-writer’s belongings, and how to face the future once he has been 
executed”); ROSE ROUSE, LAST LETTERS TO LOVED ONES 203–08 (2008) (quoting letter from 
 
  
2014] LETTERS NON-TESTAMENTARY 587 
available
8
 or use today’s digital equivalents to react and reach their intended 
recipients.
9
  Suicide notes,
10
 war-time dispatches,
11
 and correspondence from 
terminally ill patients
12
 provide dramatic examples of so-called “last letters.”  
Equally memorable but perhaps more prosaic epistles stem from people 
who, simply mindful of death, seek to leave guidance to those who survive 
them.
13
  Many last letters include instructions about the writer’s material 
belongings, as Koofi’s does when she extols her daughters to “spend all the 
money I have in the bank” and cautions them to use the money “wisely . . . 
                                                          
Captain Robert Falcon Scott to his wife at the end of a failed attempt to get back from the South 
Pole). 
 8.  See infra notes 238–39; see also, e.g., SO THAT YOUR VALUES LIVE ON—ETHICAL WILLS 
AND HOW TO PREPARE THEM 48 (Jack Riemer & Nathaniel Stampfer eds., 2009) (quoting messages 
from Holocaust victims about to be executed, including one carved into a synagogue wall by a 
woman to her husband, letting him know that “in this place, your wife Gina and your son Imosz 
were murdered.  Our child cried bitterly; he did not want to die.  Go forth to battle and avenge the 
blood of your wife and your only son.  We die for no crime whatsoever.”).  For a case law example, 
see Breeden v. Stone, 992 P.2d 1167, 1168 (Colo. 2000) (following hit-and-run accident, participant 
locked himself in his home, scrawled a note stating “I want everything I have to go to Sydney 
Stone. . . . P.S. I was not driving the vehicle,” and shot himself in the head).  For a picture of the 
note, which the court found to be a will, see JESSE DUKEMINIER & ROBERT H. SITKOFF, WILLS, 
TRUSTS, AND ESTATES 278 (9th ed. 2013). 
 9.  Consider, for example, the many telephone calls that were placed on September 11, 2001 as 
the tragedies of that day unfolded.  Maria Hinojosa, On September 11, Final Words of Love, CNN 
(Sept. 10, 2002, 8:58 AM), http://www-cgi.cnn.com/2002/US/09/03/ar911.phone.calls/; see also 
Text Messages Reveal the Emotional Timeline of September 11, 2001, SCIENCE DAILY (Sept. 2, 
2010), http://www.sciencedaily.com- /releases/2010/09/100901121517.htm (last visited Feb. 19, 
2013). 
 10.  ROUSE, supra note 7, at 145–60, 176–78, 184–92, 198–200; see also In re Button’s Estate, 
287 P. 964, 965 (Cal. 1930) (quoting a four-page suicide note from a wife to her former husband 
which extolled the recipient to keep his “loving arms around [the boys] and protect them as I know 
you will and always have” and then providing “I’m wearing you out dear and when I am gone you 
can just breathe one long sigh of contentment.  I’d like to be cremated.  You can have the house on 
26th ave. and all the things of value so you won’t be out any money on burying me.”). 
 11.  ROUSE, supra note 7, at 3–88. 
 12.  ROUSE, supra note 7, at 123–41; see also BARRY K. BAINES, ETHICAL WILLS: PUTTING 
YOUR VALUES ON PAPER app. 1 at 94 (2d ed. 2006) (quoting letter from terminally ill patient to her 
family stating that: “During the time of my illness, I have loved more deeply.  My heart feels as if it 
has exploded. . . . As I lay dying, I think of all of you, each special in your own way . . . .”); see also 
Crites v. Faulkner, 245 S.W.2d 1013, 1013 (Tex. Civ. App. 1952) (letter to decedent’s “Dear 
Brother” written after several cardiac attacks, stating: “I am not feeling very good and I might pass 
away any time, and if I go before Rose does, I want you and Thelma [to] look after her and give her 
all the care. . . . When she is gone I want you [to] have charge of everything I have and do with it as 
you think best.  I would like for . . . Roses brother to have something.  But you do as you think best, 
about giving away my money. . . . Your loving Bro.”). 
 13.  See generally BAINES, supra note 12, app. 1; SO THAT YOUR VALUES LIVE ON—ETHICAL 
WILLS AND HOW TO PREPARE THEM, supra note 8; Zoe M. Hicks, Is Your (Ethical) Will in Order, 
33 ACTEC L.J. 154, 154 (2007) (describing letters written by a dying father to be given to his 
daughters at significant life events). 
  
588  KANSAS LAW REVIEW [Vol. 62 
and for your studies.”
14
  Letter writers also may mention regrets for tasks 
they have not yet undertaken and explanations for the preferences they have 
expressed elsewhere.
15
 
Letters, including last letters, are equally ubiquitous in American case 
law, but the roles they play are curious and diverse.  While there is no 
question that homemade letters have influenced inheritance law,
16
  just how 
and why has not been examined, particularly where the letter writers make 
clear that the informal communications are intended to supplement—but not 
replace—their formal documents or, in other words, where the letters are 
deliberately “non-testamentary.”
17
 
                                                          
 14.  KOOFI WITH GHOURI, supra note 1, at 1. 
 15.  See, e.g., In re Kaufmann’s Will, 247 N.Y.S.2d 664 (App. Div. 1964), aff’d  205 N.E.2d 
864 (N.Y. 1965) (finding decedent’s letter to his brothers explained “unusual provisions” in 
decedent’s will, specifically that “a sizeable portion” of the estate is devised to a man “not a member 
of [decedent’s] family”). 
 16.  One common appearance of letters in inheritance cases is when they are offered to serve as 
wills for decedents who leave no other written indication of testamentary intent.  While such letters 
often do not satisfy the required formalities of the relevant jurisdiction’s statute of wills, a majority 
of states excuse the lack of formalities and admit the documents as “holographs” so long as the 
entire writing, or at least its material provisions, are handwritten and signed by the testator.  Richard 
Lewis Brown, The Holograph Problem—The Case Against Holographic Wills, 74 TENN. L. REV. 93; 
108 (2006) (citing UNIF. PROBATE CODE § 2-502 (amend. 1993), 8 U.L.A. 145 (1998)); cf. Estate of 
Wilt-Fong, 148 P.3d 465, 466 (Colo. App. 2006) (applying a liberal “harmless error” standard to 
uphold a typed letter as a will, even though it did not meet strict requirements of a formal will or a 
holographic one).  Letters also may be codicils—addenda—to the more traditional documents, 
though such letters sometimes contradict or substantially alter the original wills.  See infra text and 
accompanying notes 49–54.  Courts have used letters as tools for interpreting ambiguous 
instruments.  See Wells Fargo Bank v. Marshall, 24 Cal. Rptr. 2d 507, 510–14 (1993); Cornell v. 
Cornell, 334 A.2d 888, 891 (Conn. 1973); Estate of Robbins, 544 N.Y.S.2d 427, 429 (Sur. Ct. N.Y. 
Cnty. 1989); Milligan v. Greeneville Coll., 2 S.W.2d 90, 94 (Tenn. 1928).  Courts have also used 
letters as mechanisms for determining whether a formal property arrangement, a trust or conveyance 
for example, exists in the first place.  See Thomas v. Dye, 127 N.E.2d 228, 232–34 (Ohio Ct. App. 
1954).  Finally, courts have admitted letters into evidence to assess claims that a testator lacked 
capacity or suffered other testamentary infirmities.  See Dorsey v. Dorsey, 156 S.W.3d 442, 446 
(Mo. Ct. App. 2005); Russell v. Russell, 197 S.W.3d 265, 269 (Tenn. Ct. App. 2005); In re Estate of 
Steed, 152 S.W.3d 797, 811 (Tex. App. 2004); Estate of Davis, 920 S.W.2d 463, 466 (Tex. App. 
1996). 
 17.  This term plays on the term “letters testamentary,” which refers, in probate parlance, to the 
documents that authorize a fiduciary to act on behalf of an estate.  See infra text and accompanying 
notes 34–36.  There is a long-standing body of scholarship describing and analyzing how courts have 
determined whether a letter writer demonstrates adequate testamentary intent to cause the unattested 
and potentially ambiguous letter to be a will.  See, e.g., Brown, supra note 16, at 110–11; Ashbel G. 
Gulliver & Catherine J. Tilson, Classification of Gratuitous Transfers, 51 YALE L.J. 1, 14 & n.40 
(1941); Katheleen R. Guzman, Intents and Purposes, 60 U. KAN. L. REV. 305, 333–51 (2011); Adam 
J. Hirsch, Inheritance and Inconsistency, 57 OHIO ST. L.J. 1057, 1073–74 & 1074 n.50 (1996); 
Melanie Leslie, The Myth of Testamentary Freedom, 38 ARIZ. L. REV. 235, 284–89 (1996); Charles 
M. Soller, Letters as Holographic Wills—Testamentary Intent, 46 MICH. L. REV. 578 (1947); see 
also infra notes 72–76 and accompanying text.  This Article takes the next step and considers letters 
that are not intended to serve as formal documents. 
  
2014] LETTERS NON-TESTAMENTARY 589 
That such letters non-testamentary proliferate should come as no 
surprise not only because some professionals in this field have been 
championing their use, but also because letter writers seem to understand 
that the genre offers them a unique opportunity to convey their last wishes in 
a way that will be read, remembered, and effectuated by the recipients.  In a 
January 2013 issue of CBS Moneywatch, an expert financial planner advised 
individuals that once they had “followed through with getting [their] estate 
documents in order,” the next step was to “prepare a letter that will help your 
family settle your affairs by letting them know what they need to do after 
you have departed.”
18
  Explaining that the instructions in such a letter “are 
more of a personal wish, and therefore cannot be included in a legal 
document,” the author urged letter writers to incorporate not only lists of 
assets, individuals to be contacted, funeral arrangements, and instructions to 
trustees, but also “personal thoughts and messages for [the] beneficiaries” 
and even “history relating to each memento” or “autobiographical 
information for future generations.”
19
 
Unlike property owners who opt out of the formal legal system 
altogether, the authors of the letters examined in this Article and 
recommended by professionals like the Moneywatch Advisors know and 
accept the law’s purpose and effect: they choose to execute formal wills to 
leave property to their loved ones; they choose to sign trusts to interpose a 
fiduciary between their beneficiaries and their wealth.  Yet the authors of 
these letters supplement the legal documents with a genre that is less formal, 
less traditional, and ostensibly not legally binding.  Recognizing the 
potential ambiguities and contradictions that homemade and informal 
communications may engender, this Article nevertheless argues that letters 
                                                          
 18.  Ray Martin, Estate Plan Letter to Your Family: What to Include, CBS (Jan. 15, 2013), 
http://www.cbsnews.com/8301-505146_162-57563900/estate-plan-letter-to-your-family-what-to-
include/; see also Donna Pagano, Helping Clients Leave a Lasting Legacy with the Family Love 
Letter, 8 J. PRAC. EST. PLAN. 43, 44 (2006–07) (describing the role of the “family love letter” which 
is “not a legal document and is not intended to replace or supersede other legal documents such as 
wills or trusts, but it is intended to supplement these documents with potentially helpful information 
at a difficult time”).  But see Alexander A. Bove, Jr., The Letter of Wishes: Can We Influence 
Discretion in Discretionary Trusts?, 35 ACTEC L.J. 38, 39 (2009) (“As important and helpful as 
[letters of wishes] might be, however, the sad fact is that trust and estate attorneys rarely employ, or 
even suggest, a letter of wishes in connection with the typical discretionary trust.”). 
 19.  See generally Martin, supra note 18.  Consider, too, a recent Alabama case where a mother 
who was embarking on a vacation wrote to one of her seven children to thank him for investing 
$160,000 for her and to tell him to keep the balance “should anything happen to [her],” although her 
twenty-year-old will provided otherwise.  Porter v. Black Warrior Farms, L.L.C., 976 So.2d 984, 
990 (Ala. 2006).  Bemoaning that the letter writer had not been sufficiently explicit about her 
wishes, the court refused to allow the letter to affect the legal disposition of the property, though the 
letter significantly altered the family’s interactions.  Id. 
  
590  KANSAS LAW REVIEW [Vol. 62 
non-testamentary play an important role in planning for death—a role that 
has persisted throughout time and is likely to continue, even as the genre 
shifts form in today’s digital age. 
The choice to write a letter non-testamentary may be seen as a lay 
person’s way to reconcile the competing demands of structuring and 
planning one’s legacy.  Like other private areas of the law,
20
 inheritance law 
has both economic and social components. Most obviously, it involves the 
distribution of property that a person has amassed during life among the 
people and entities with which the decedent has shared some social 
relationship.  The property owner must balance economically rational 
reasons and social and emotional reasons when devising property to 
particular beneficiaries or in particular ways.  For example, one of the 
primary motivations for estate planning is maximizing family wealth, which 
might mean choosing to leave property to a spouse over a child, grandchild, 
or friend regardless of the dynamics of the relationship.  Even if an estate is 
modest such that federal transfer taxes are not applicable, maximizing 
economic benefit to the family might mean choosing beneficiaries who do 
not cause state inheritance taxes to be incurred, who have the ability to alter 
the estate plan through a right of election, and who might seek to derail the 
plan through litigation if they feel slighted or forgotten.  Other “rational” 
incentives for a testator’s choices include preserving family harmony, 
providing support, structuring the estate to protect susceptible beneficiaries 
from waste or inefficiency, and encouraging growth of the overall estate 
property. 
Against all of the worthy, understandable, and efficiency-promoting 
goals, however, is the dueling notion that documents disposing of property 
on death are executed by real people contemplating their own mortality.  
Accordingly, estate maximizing goals sometimes conflict with emotional 
goals that infiltrate the process and affect the property owner and the 
structure and distribution of her estate.  Deciding how to direct assets may 
be affected by fear (of death or loss of control), distrust about how a spouse 
or other beneficiary will act after one’s death, romantic love, vengeance, 
anger at the objects of one’s bounty or at the fact of one’s death in general, 
remorse, gratitude, or nostalgia.  In his article The Psychiatry of Writing a 
Will, psychotherapist Nathan Roth observes how writing a will is necessarily 
a “conflict-ridden activity.”
21
  As human beings, we are reluctant to 
                                                          
 20.  See, e.g., Chapin F. Cimino, Virtue and Contract Law, 88 OR. L. REV. 703, 732–33 (2010) 
(contract law involves both private relations—those within families—and social relations—those 
between individuals and the state). 
 21.  Nathan Roth, The Psychiatry of Writing a Will, 41 AM. J. PSYCHOTHERAPY 245, 250 
 
  
2014] LETTERS NON-TESTAMENTARY 591 
recognize our own mortality; we therefore have a corresponding temptation 
to penalize anyone who will outlive us by imposing conditions that will 
survive us or by expressing hatred and vengefulness; and we also possess a 
self-preservation mechanism which compels us to take care of those who 
might remember or help us beyond the grave.
22
  There are virtually no limits 
on the type of emotions that might affect how a property owner decides what 
to do with her estate at death.  While inheritance doctrine has long 
recognized that a testator can be whimsical or irrational in her gifting,
23
 the 
emotional and, correspondingly, the therapeutic components of estate 
planning have just started receiving attention.
24
  And yet in the genre of 
informal letters, these components have been ever-present.
25
 
Letters non-testamentary are invocations of trust in the true, and non-
legal, sense of the word: “an assured reliance on the character, ability, 
strength, or truth” of the recipient.
26
  This humble, intuitive, and accessible 
genre allows writers to connect to their readers and confront their mortality 
in a way that the standard instruments often do not.  Because a family has 
much to lose when a will is challenged and much to gain when the probate 
process is easy and uncontested, a writer who builds empathy in her 
survivors through a letter non-testamentary may accomplish far more than if 
she relied solely on her formal documents. 
27
 
This Article proceeds in three parts.  Part II provides a background on 
how informal letters have influenced the development and coherence of 
inheritance law, focusing specifically on letters that have been offered and 
construed as wills, codicils, and trusts.  Be they “testamentary” or not,
28
 
                                                          
(1987). 
 22.  Id. at 245–50. 
 23.  See Harry Hibschman, Whimsies of Will-Makers, 66 U.S. L. REV. 362, 362 (1932). 
 24.  See, e.g., Mark Glover, The Therapeutic Function of Testamentary Formality, 61 U. KAN. 
L. REV. 139 (2012) [hereinafter Glover, Testamentary Formalities]; Mark Glover, A Therapeutic 
Jurisprudential Framework of Estate Planning, 35 SEATTLE U. L. REV. 427 (2012).  Professor 
Thomas Shaffer, though, has written about these issues for decades.  See, e.g., Thomas L. Shaffer, 
Will Interviews, Young Family Clients and the Psychology of Testation, 44 NOTRE DAME L. REV. 
345 (1969). 
 25.  Similarly, inheritance law scholars have been writing about the fall of formalism for the 
past forty years.  Bruce H. Mann, Formalities and Formalism in the Uniform Probate Code, 142 U. 
PA. L. REV. 1033, 1033–34 (1994); see also John Langbein, Substantial Compliance with the Wills 
Act, 88 HARV. L. REV. 489 (1975); James Lindgren, The Fall of Formalism, 55 ALB. L. REV. 1009, 
1014 (1992).  But the truth is that informality has pervaded cases about death for far longer, 
primarily in the garb of homemade letters. 
 26.  MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY (11th ed. 2003). 
 27.  See Justin D’Arms, Empathy and Evaluative Inquiry, 74 CHI-KENT L. REV. 1467, 1483, 
1498 (2000) (describing how emotion can be a source of knowledge about value, as opposed to a 
distortion of judgment). 
 28.  By referring to letters “non-testamentary” in connection with both wills and inter vivos 
 
  
592  KANSAS LAW REVIEW [Vol. 62 
letters reveal how individuals organize their personal affairs by making 
social connections without interference or help from lawyers.  Courts, as the 
unintended third-party readers of those letters, wrestle with their import.
29
 
Part III describes the letter as a specific generic form and explores the 
characteristics, social and formal, of “last letters” in particular.  The purpose 
of this genre analysis is to “uncover[] the pathways that guide [writers’] 
lives in certain directions,” so as to “identify the possibilities for new turns 
and the consequences of taking those turns.”
30
  In other words, the rhetorical 
analysis looks at the unique communicative purposes that the letter genre 
offers the writer.
31
 
Part IV examines letters from cases in which the respective property 
owners execute some form of more traditional estate planning documents—
like wills and trusts—but also choose to write letters that are deliberately 
“non-testamentary”; such letters may appear in cases as the courts struggle 
to decide capacity issues, resolve will or trust ambiguities, or determine 
standards for fiduciary conduct.  But the letters provide valuable information 
about the writers too.  In fact, the language and form of these letters reveal 
that the property owners turn to the genre to fill emotional, rhetorical, and 
even legal gaps.  As such, these letters non-testamentary help outside readers 
learn about deficiencies that the current system promotes, such as the 
writers’ lack of confidence with their formal documents or fear of including 
explanations and feelings in those writings.
32
  While others have bemoaned 
the inconsistencies that such homemade letters produce, this Article takes 
the opposite position: it argues that letters non-testamentary highlight a 
productive tension between lawyer-created documents that are clear and tax-
efficient but often devoid of feeling and the reality of death as a frightening 
event that involves messy emotions and relationships.  Revealing in this 
                                                          
trusts, some readers may understand me to be implying that such trusts are testamentary when 
technically they are not.  See David Horton, Testation and Speech, 101 GEO. L.J. 61, 65 n.24 (2012) 
(“Some readers may chafe at the fact that I call the execution of a trust ‘testation.’  After all, courts 
once had to perform spectacular intellectual gymnastics to explain why inter vivos trusts were not 
‘testamentary’ and did not need to conform to Wills Act formalities. . . . Moreover, there are 
meaningful differences between wills (which funnel a dead testator’s estate through court-supervised 
probate) and inter vivos trusts (which become effective during a settlor’s life and give beneficiaries 
equitable title to the trust property).”).  Like Professor Horton, many of the ideas I put forth about 
how letters relate to the more traditional documents are similar for both devices, though I will try to 
note distinctions when they affect my analysis. 
 29.  See infra text and accompanying notes 34–77. 
 30.  Charles Bazerman, Systems of Genres and the Enactment of Social Intentions, in GENRE 
AND THE NEW RHETORIC 100 (Aviva Freedman & Peter Medway eds., 1994) [hereinafter Bazerman, 
Systems of Genres]. 
 31.  See infra text and accompanying notes 78–159. 
 32.  See infra text and accompanying notes 160–62, 168–203. 
  
2014] LETTERS NON-TESTAMENTARY 593 
regard is a specific form of correspondence, called a trustee “letter of 
wishes,” that is used primarily when property dispositions are designed to 
extend over time rather than pass outright.  Deliberately non-binding, these 
writings nevertheless allow the property owner to provide input to her 
trusted and selected designees about what she envisions her legacy to be.
33
 
The Article concludes by embracing letters non-testamentary, even 
though they may perplex the formal institutions of the law, because the 
genre allows writers the freedom to confront and resolve issues that death 
naturally elicits. 
II. TESTAMENTARY LETTERS: UNINTENDED READERS FIND 
TESTAMENTARY INTENT 
“Letters” represent boundaries in inheritance doctrine.  On one end of 
the spectrum are “letters testamentary,” a term that refers to the instruments 
that empower an estate’s representative.
34
  Before a court with jurisdiction 
over a given estate grants such “letters,” that estate’s fiduciary lacks 
authority to act on behalf of and bind the estate.
35
  Although more akin to a 
legal writ than a social exchange, 
36
 the “letter testamentary” provides an apt 
symbol of the highly formulaic and structured characteristics of the law of 
                                                          
 33.  See infra text and accompanying notes 163–67, 204–22. 
 34.  BLACK’S LAW DICTIONARY 989 (9th ed. 2009); UNIF. PROB. CODE § 1-201(27) (2010).  
“Letters testamentary” are issued to the fiduciary appointed under a decedent’s will, either an 
“executor” or “personal representative,” depending on the jurisdiction.  When a decedent dies 
without a will, the fiduciary is known as an “administrator” and the appropriate term is “letters of 
administration.”  
 35.  In re Kennedy’s Will, 174 N.Y.S. 429, 431 (Sur. Ct. N.Y. Cnty. 1919).  The Probate of 
Testament Acts of 1357 is credited with having created the concept of letters of administration (and, 
by association, letters testamentary).  BLACK’S LAW DICTIONARY 989 (9th ed. 2009).  The original 
text of the act, which along with an early 1800s translation can be found in “The Statutes of the 
Realm,” does not use the term “letter” at all.  Rather, it refers to the power of the religious figures—
known as “ordinaries”—to administer any property not disposed of before death.  1 THE STATUTES 
OF THE REALM 350 (1357).  Prior to such a grant, the only entity empowered to handle a decedent’s 
property was someone far less “ordinary”: the decedent’s priest.  Id.  The first American cases to 
reference “letters” in connection with inheritance proceedings appear in the early to mid-1700s.  See, 
e.g., Carroll’s Lessee v. Andrew, 4 H. & McH. 485, 485 (Md. 1731) (referring to letters 
testamentary); see also Kennedy’s Will, 174 N.Y.S. at 431–32 (discussing the history of the term 
“letters testamentary”). 
 36.  A letter testamentary is issued by a court rather than written by an individual, contains no 
meaningful substantive content, and does not contemplate a particular recipient or recipients.  See 
infra text and accompanying notes 77–113.  Charles Bazerman describes how similar varieties of 
legal “letters,” like letters patent and letters of credit, have “provided the medium for development of 
major genres of law, government, and politics” and “instruments of money and credit.” See 
Bazerman, Letters, supra note 2, at 20–21 (discussing how informal letters have had a “pervasive 
and important” influence on the law). 
  
594  KANSAS LAW REVIEW [Vol. 62 
descent and distribution. 
On the other end of the spectrum, and as idiosyncratic, informal, and 
intimate as any text that appears in or intersects with the law, are the 
homemade letters that permeate cases about death. 
Once law moved from being a primarily oral to a primarily written 
tradition, most legal writing “tended toward the depersonalized, the 
objectified and systematic, the controllable and inflexible, and the 
abstract.”
37
  Homemade letters, perhaps because they derive primarily from 
non-lawyers even though they influence and sometimes even change the 
law, retained characteristics of the oral tradition, which has been described 
by words like “customary,” “participatory,” “ceremonial,” “adaptable,” and 
“contextual.”
38
 
Homemade letters have perplexed courts for more than a century.
39
  
Although these informal documents do not look or read like lawyer-drafted 
wills or trusts, they often have the same effect so long as the court 
construing the document in question finds the writer had the requisite 
intent.
40
  Where letter writers “merely intended to give information, or to 
                                                          
 37.  Ronald K.L. Collins & David M. Skover, Paratexts, 44 STAN. L. REV. 509, 516 (1992). 
 38.  Id. at 515–16.   
 39.  For examples of older cases in which courts admitted homemade letters to probate, either 
as holographic wills or as codicils (amendments) to existing but more formally executed documents, 
see Arendt v. Arendt, 96 S.W. 982, 982–83 (Ark. 1906) (will); Byers v. Hoppe, 61 Md. 206, 210 
(1884) (will); Barney v. Hays, 29 P. 282, 283–84 (Mont. 1892) (codicil); Alston v. Davis, 24 S.E. 
15, 16 (N.C. 1896) (will).  For examples of older cases in which courts have relied on letters to 
establish trust relationships, in which the person who receives title to the property is deemed to hold 
it not for her own unfettered benefit but instead as a fiduciary for the benefit of one or more third 
parties, see Van Cott v. Prentice, 10 N.E. 257, 260–61 (N.Y. 1887); Grafing v. Heilmann, 1 A.D. 
260, 263–64 (N.Y. App. Div. 1896). 
 40. For example, a letter is construed as a will if the letter writer “intended the . . . instrument to 
have testamentary effect.”  Soller, supra note 17, at 579–80.  According to Soller, “The testator need 
not know that he is performing a testamentary act, but his intention with reference to the instrument 
must be such that the court will say that a final disposition of property was meant to be effectuated.” 
Id. (footnotes omitted) (citations omitted); Estate of Wilt-Fong, 148 P.3d 465, 469 (Colo. App. 2006) 
(finding informal typewritten letter to be a will because proponent established that “the decedent 
intended the document to be a will”).  For examples of cases where letters were found to be 
holographic wills, see generally Letter as a Will or Codicil, 40 A.L.R. 698 (originally published 
1955) [hereinafter Letter as Will]; see also Weems v. Smith, 237 S.W.2d 880, 881–82 (Ark. 1951); 
In re Estate of Cook, 160 P. 553, 554–55 (Cal. 1916); In re Estate of Crick, 41 Cal. Rptr. 120, 122–
23 (Cal. Dist. Ct. App. 1964); In re Estate of Smilie, 222 P.2d 692, 694–96 (Cal. Dist. Ct. App. 
1950); Boggess v. McGaughey, 207 S.W.2d 766, 767–68 (Ky. 1948); In re Estate of Ramirez, 869 
P.2d 263, 265 (Mont. 1994); In re Estate of Melton, 272 P.3d 668, 671–74 (Nev. 2012). For 
examples of cases where letters were deemed not to be wills, see In re Bliss’ Estate, 268 N.W. 783, 
784 (Mich. 1936); In re George’s Estate, 45 So. 2d 571, 571–74 (Miss. 1950); Wolfe v. Wolfe, 448 
S.E.2d 408, 409 (Va. 1994); In re Briggs’ Estate, 134 S.E.2d 737, 739–40 (W. Va. 1964).  For an 
article discussing the many problems caused by holographic wills generally and casual letters in 
particular, see Brown, supra note 16, at 110–11. 
 
  
2014] LETTERS NON-TESTAMENTARY 595 
make a request or casual statement,” or where the instruments stated “only a 
desire or intended future action,” the letters will not be admitted to probate 
or accorded the force of testamentary documents.
41
 
Regardless of whether they are found to reflect a writer’s intent to 
dispose of property or simply to share a writer’s views about death, 
homemade letters are interesting because their language often is unadorned 
and accessible.
42
  These letters often illustrate vividly the writer’s 
relationship to her reader and views on their impending separation.  An 
“(in)famous”
43
 example of such a “last letter” is provided by the 1924 
Pennsylvania case, In re Kimmel’s Estate.
44
  Embedded in directives from 
the father to his sons about how to prepare for the upcoming winter was the 
                                                          
  A letter is construed as a trust if the letter writer’s direction to the property recipient is 
mandatory and not precatory.  See Wood v. Am. Nat’l Bank, 125 Cal. App. 248, 251 (Cal Dist. Ct. 
App. 1932); Hall v. Hall, 93 P. 177, 178–79 (Kan. 1907); see also Colton v. Colton, 127 U.S. 300, 
308 (1888) (decedent’s statement “I recommend to [my wife] the care and protection of my mother 
and sister, and request her to make such gift and provision for them as in her judgment will be best” 
imposed a trust on the property (emphasis added)).  Trust law has generally been more forgiving 
about the type of documents required to prove a trust.  See Van Cott, 10 N.E. at 260–61.  In contrast, 
strict rules govern whether a separate writing, like a letter, is incorporated or integrated into the 
formal will.  See In re McVoy’s Estate, 145 N.Y.S.2d 181, 183 (Sur. Ct. N.Y. Cnty. 1955). 
 41.  Soller, supra note 17, at 579–80. 
 42.  See, e.g., Arendt v. Arendt, 96 S.W. 982, 982–83 (Ark. 1906) (affirming probate court’s 
determination that husband’s suicide letter to wife was a will, where letter stated “Whatever I have 
in worldly goods, it is my wish that you should possess them.  I have hoped against hope that 
everything would come out all right, but I see it is useless.”); Byers v. Hoppe, 61 Md. 206, 210 
(1884) (“In our opinion these concluding sentences: ‘And Ann, after my death you are to have forty 
thousand dollars; this you are to have, will or no will; take care of this until my death,’ accompanied 
with the direction, ‘To Eliza Ann Byers,’ evince just as effectually, in legal contemplation, that the 
writer wrote them animo testandi, as if he had said in terms, ‘I hereby will and bequeath to Eliza 
Ann Byers forty thousand dollars, to be paid to her at my death out of my personal estate.’”); In re 
Bliss’ Estate, 268 N.W. 783, 784 (Mich. 1936); In re George’s Estate, 45 So. 2d 571, 571–74 (Miss. 
1950) (letter stating “I think you so much Honey for all you have done for me & I want to say right 
now that I want to give you Aldridge’s interest in Runnymeed & I want you to begin fixing things” 
was “merely an expression of a desire with the purpose to later effectuate it, which was never 
done”); Wolfe v. Wolfe, 448 S.E.2d 408, 409 (Va. 1994) (testator wrote: “As executor, I am asking 
you to do much for me and the girls, perhaps Gordon can help.  God bless you, I know you will do 
your best.  My will is out of date, but I think it will still stand up.  I want my daughters to share ⅓, 
⅓, ⅓.”); In re Briggs’ Estate, 134 S.E.2d 737, 739–40 (W. Va. 1964) (testator wrote to niece: “We 
never know how long we are going to live.  I will be 61 next month.  Hence the end cannot be too far 
away.  If you are the longer liver I would like for you to take my affairs in hand and see to it my 
wishes are carried.  I will have a will drawn up and you will be named the sole executrix of my last 
will and testament. . . . You keep this letter for use if anything should happen to me before the will is 
drawn up.”). 
 43.  Hirsch, supra note 17, at 1074 n.50.  The Kimmel case appears in the holographic wills 
discussion in various popular trusts and estates texts.  See, e.g., DUKEMINIER & SITKOFF, supra note 
8, at 198; ROGER W. ANDERSEN & IRA MARK BLOOM, FUNDAMENTALS OF TRUSTS & ESTATES 110 
(3d ed. 2007); see also Stephen Clowney, In Their Own Hand: An Analysis of Holographic Wills 
and Homemade Willmaking, 43 REAL PROP. TR. & EST. L.J. 27, 43–44 (2008). 
 44.  In re Kimmel’s Estate, 123 A. 405 (Pa. 1924). 
  
596  KANSAS LAW REVIEW [Vol. 62 
notice that “I have some very valuable papers I want you to keep fore me” 
and the instruction that “if enny thing happens all the scock money in the 3 
Bank liberty Iones Post office stamps and my home on Horner St goes to 
George Darl & Irvin Kepp this letter lock it up it may help you out.”
45
  
Emphasizing the father’s reference to “valuable papers” and his admonition 
to his children to keep the letter safe because it may “help you out,” the 
Kimmel court reasoned that the father intended the letter to have 
testamentary impact.
46
  The court therefore admitted the informal letter to 
probate, citing cases that found the “informal character of a paper” to be “of 
no moment” when the “decedent’s purpose” is to make a gratuitous 
transfer.
47
  The decision quotes the letter in its entirety, including the portion 
in which the father tells his sons that he is “well as you can spec for the time 
of the Year” and explains how to preserve their pork for the winter which he 
anticipates will be “one of the hardest.  Plenty of snow & Verry cold very 
cold!”
48
 
There is no mystery that a court, like the one in Kimmel, might choose 
to honor the testator’s stated preferences over her default heirs at law, 
especially if the testator explains those desires and even if they appear in an 
informal letter that spends more time discussing food and weather than the 
writer’s property dispositions.  When a testator has executed a formal will or 
trust and then writes a homemade letter that is inconsistent with that plan, 
however, one might predict a court to be more inclined to follow the formal 
plan.  To the contrary, courts often respect letters as codicils, 
notwithstanding that they may contradict the existing testamentary 
instruments.
49
  In Henderson v. Henderson, for example, the testator 
executed a will that created trusts for the benefit of her four brothers and 
their respective families.
50
  Some time thereafter, the testator wrote a letter 
to one brother, expressing that she would “now have to make a change” to 
her will.
51
  The testator’s letter explained the reasons for the change as 
stemming from her anxiety “for you, Annie and your family to be cared for 
                                                          
 45.  Id. at 405. 
 46.  Id. at 406. 
 47.  See id. at 405–06.  As one nineteenth century court explained when it found a letter to be a 
holographic codicil that revived an otherwise ineffective will, “a ‘testameent’ [is] just sentence of 
our will, touching that we would have done after our death.”  Turner v. Scott, 51 Pa. St. 132 (quoted 
in Barney v. Hayes, 29 P. 282 (Mont. 1892)). 
 48.  Kimmel, 123 A. at 405–06. 
 49.  Henderson v. Henderson, 33 S.E.2d 181, 182 (Va. 1945) (“It is more or less to be expected, 
then, that there shall be some conflict between a codicil and a will.”). 
 50.  Id. 
 51.  Id. 
  
2014] LETTERS NON-TESTAMENTARY 597 
in your old age.”
52
  In addition to describing how and why she wished to 
eliminate two beneficiaries from the existing will, the testator advised the 
recipient to “just keep this [letter] for business like transfer” and “just hold 
this little piece of paper in case there should be trouble.”  She also noted that 
the letter “is a private note for you.  I do not want it known in Hancock.”
53
  
When the testator ended up not executing a formal codicil, the brother who 
benefited from the intended change disclosed the “private note” and argued 
that it amended the will.  The Henderson court agreed, finding the letter to 
be a valid codicil because the testator used the term “now” and because 
“when the writer of the letter twice emphasize[d] the importance of 
preserving the letter in order to avoid trouble, she intend[ed] the letter as a 
codicil to her will then in existence.”
54
 
Notwithstanding the fairly simple and undisputed directive that an 
informal writing must reflect its author’s intent that the document function 
as her will, the specific criteria that dictate when and why certain letters (and 
not others) constitute wills have proven particularly “nettlesome”
55
 and 
“elusive.”
56
  Just a glance at the American Law Reports articles collecting 
                                                          
 52.  Id. 
 53.  Id. 
 54.  Id. at 183.  Another (also rather infamous) example of an informal and unrefined letter that 
was found to be a codicil appears in the curious case of Charles Kuralt, whose last letter to his long-
time “intimate and personal” companion derailed the formal estate planning documents Kuralt had 
executed with his wife three years earlier.  Estate of Kuralt, 15 P.3d 931, 933 (Mont. 2000).  
Acknowledging that “[s]omething is terribly wrong with me and [the doctors] can’t figure out what,” 
Kuralt wrote from his hospital bed of his intention to “have the lawyer visit the hospital to be sure 
you inherit the rest of the place in [Montana] if it comes to that.”  Id.  Kuralt died two weeks after 
writing the letter and failed to have a formal codicil prepared.  Id. at 934.  The trial court found that 
the letter demonstrated Kuralt’s “present testamentary intent” that the Montana property pass to his 
companion, notwithstanding his reference to future actions; the Supreme Court of Montana affirmed.  
Id.  Concluding that Kuralt “was reluctant to consult a lawyer to formalize his intent because he 
wanted to keep [the] relationship secret” and relying on his use of the term “inherit,” the court held 
that the “letter expressed Kuralt’s desire” to transfer the property and therefore had testamentary 
effect.  Id.  Incidentally, because the Kuralt letter did not address how taxes would be apportioned, 
Kuralt’s wife and children, as recipients of the estate’s residue, also were responsible for any transfer 
taxes associated with the gift of the property to Kuralt’s mistress. DUKEMINIER & SITKOFF, supra 
note 8, at 214. 
 55.  See Hirsch, supra note 17, at 1073–74  (“[C]ourts must contend with nettlesome questions 
concerning the intent of authors to render legally effective holographic documents that are offered 
for probate as wills.  (Those nettles are most prickly when a holograph mixes testamentary 
declarations with ordinary communication, as when the alleged will appears within . . . a letter to the 
alleged beneficiary.)”). 
 56.  See Guzman, supra note 17, at 329 (“‘The problem of whether a letter discloses 
testamentary intent is a difficult and elusive one and it is hard to reconcile all the cases or even to 
classify them.’” (quoting THOMAS E. ATKINSON, HANDBOOK OF THE LAW OF WILLS AND OTHER 
PRINCIPLES OF SUCCESSION INCLUDING INTESTACY AND ADMINISTRATION OF DECEDENTS’ 
ESTATES 210 (2d ed. 1953))). 
  
598  KANSAS LAW REVIEW [Vol. 62 
these cases shows how scattered and inconsistent the decisions and doctrines 
they announce can be.
57
  Simply as an example of this sort of paradox, one 
test for whether a last letter has a “testamentary character” is whether the 
writer expects that the letter be “published” as a will except that, as other 
courts have recognized, the writer’s intent that the letter be kept secret will 
not bar the letter from being deemed testamentary.
58
  Likewise, where a 
letter does not specify its recipient, it may be more likely to be construed as 
a will,
59
 although including a recipient does not bar a finding of testamentary 
intent.
60
  Like the letters found in them, each case is unique and therefore 
unsettling to those who take comfort from delineated rules. 
The difficulty in deriving clear rules is just as prevalent where the issue 
involves whether language in an informal last letter creates a trust,
61
 thereby 
imposing fiduciary constraints on the use of the property by the legal 
owner.
62
  In McKinsey v. Cullingsworth,
63
 for example, the decedent wrote a 
letter to her nephew saying “im verry sick if anything happen to me . . . I 
want you to have my home and every thing and you and you take care of 
                                                          
 57.  See generally Letter as Will, supra note 40, §10 (discussing many tests for finding 
testamentary intent in letters and acknowledging that, notwithstanding such tests, “intent is the chief 
signpost to which the courts look for guidance in determining the character of the instruments, and 
the informality of the language will not prevent a finding that the instrument is testamentary in 
character if the intent is plain”); see also Letter as a Will or Codicil, 54 A.L.R. 917 (originally 
published 1928); Brown, supra note 16, at 110–16 (describing and documenting the difficulty courts 
have in defining testamentary intent in holographs). 
 58.  Letter as Will, supra note 40, §4 (discussing Lawless v. Lawless, 47 S.E.2d 431 (Va. 1948), 
in which court stated that writer’s intention that contents of letter be kept secret is inconsistent with 
testamentary intent, and Langfitt v. Langfitt, 151 S.E. 715 (W. Va. 1930), in which court found 
testamentary intent notwithstanding letter’s request that its “arrangement be kept a profound 
secret”). 
 59.  See In re Knox, 18 A. 1021, 1022 (Pa. 1890) (finding wife’s letter to be “clearly 
testamentary” even though it was “not a command, but a request, addressed to no special person by 
name, but plainly to those who should have the possession or control of her  property,” reasoning 
that “it has the essential element of being a disposition of property to take effect after death”). 
 60.  See, e.g., In re Estate of Smilie, 222 P.2d 692, 694–96 (Cal. Dist. Ct. App. 1950) (finding 
testamentary intent where letter to friend stated “I want you to see that all my bills are paid and that 
[my wife] does not get thing.  I want you to have all of my after my bill are.”). 
 61.  A trust is a tripartite arrangement where a property owner, called a settlor (also known as a 
donor, grantor, trust creator, and/or trustor) transfers some property, called the trust corpus or res, to 
one or more fiduciaries to hold, manage, and distribute for the benefit of one or more beneficiaries.  
Far less ritualized than wills, trusts require only the interposition of a fiduciary between the property 
owner and the beneficiary, can appear in wills or as stand-alone instruments, and can function while 
the property owner is alive or after she dies.  See generally DUKEMINIER & SITKOFF, supra note 8, at 
384–434 (describing history, forms, and parties to trusts). 
 62.  See, e.g., In re Estate of Marti, 61 P. 964 (Cal. 1900) (discussing cases and explaining that 
“[w]hat precatory words annexed to a bequest or devise will create a trust in reference to the 
property bequeathed or devised, has been the subject of frequent discussion . . . and it is impossible 
to harmonize the several decisions upon the subject”). 
 63.  9 S.E.2d 315 (Va. 1940). 
  
2014] LETTERS NON-TESTAMENTARY 599 
Lula the best you can.”
64
  When Lula claimed that this language created a 
trust, the court disagreed, finding the “care” to be “not only discretionary” 
but also “contingent upon [the nephew’s] ability to help [Lula], and subject 
to his own needs.”  Because the letter simply “suggest[ed] a course of 
conduct, but impose[d] no legal obligation . . . to provide for [Lula] out of 
the property devised,” the court found that the testator’s last letter did not 
restrict the nephew’s use of the property.
65
  In contrast, in Estate of Campe,
66
 
the New York Surrogate’s Court found a bequest in a will to be subject to 
fiduciary obligations based on seemingly non-binding, precatory language in 
both the will and a side letter.  The Campe testator executed a formal will 
leaving certain property outright to two named individuals but stated his 
“wish and desire” that those individuals follow instructions about the 
bequest that the testator would include in a letter.
67
  The letter recounted the 
“testator’s desire that the net proceeds received by the legatees” be paid to a 
Ms. Davis.
68
  Explaining that a “non-testamentary paper cannot affect any 
disposition of property pursuant to the will,” the court refused to rely on the 
letter to change what it found to be an outright “unfettered and 
unembellished” bequest to the two named beneficiaries.
69
  But the Campe 
court nevertheless refused to disregard the letter because it “constitute[d] 
evidence of testator’s reliance upon the legatees.”
70
  Because ignoring that 
compelling evidence would undermine both the testator’s purpose and the 
legatees’ moral and legal duty, the court decided that the legatees held the 
property in constructive trust for Ms. Davis.
71
 
                                                          
 64.  Id. at 316. 
 65.  Id. at 316–17; see also Hood v. Nichol, 34 S.W.2d 429 (Ky. 1930) (finding decedent 
uncle’s transfer to his “favorite niece” of a parcel of real estate, called the “Boulevard Property,” not 
to be made in trust for the benefit of other relatives; even though the predeceased aunt’s will and a 
series of letters from the uncle to his attorney and niece referred to property owned by the uncle, 
none imposed a fiduciary constraint). 
 66.  146 N.Y.S.2d 222 (Sur. Ct. N.Y. Cnty. 1955). 
 67.  Id. at 224; see also In re Bearinger’s Estate, 9 A.2d 342, 343 (Pa. 1939) (“Neither is there 
any merit in the contention of appellant that the words ‘desire’ and ‘want’ as used in the letter of 
1937 were merely precatory.  While generally such words are so considered, yet when, as here, it 
obviously appears their use was expressive of the intent of the testator, they are mandatory.”); 
Russell v. U.S. Trust Co., 127 F. 445, 446 (S.D.N.Y. 1904) (“Although a devise or bequest to one 
person, accompanied by words expressing a wish, entreaty, or recommendation that he will apply it 
in whole or in part to the benefit of others, may create a trust, if the subject and object are 
sufficiently certain, they will not do so unless the words appear to have been intended by the testator 
to have been imperative . . . .”), aff’d 136 F. 758 (2d Cir. 1905). 
 68.  Campe, 146 N.Y.S.2d at 224. 
 69.  Id. at 225–27. 
 70.  Id. at 227. 
 71.  Id. at 227–28; see also Estate of Orcutt v. Commissioner, 36 T.C.M. 746 (1977) (finding 
letter from mother to daughter stating that insurance policy “is presented to you, as beneficiary, for 
 
  
600  KANSAS LAW REVIEW [Vol. 62 
Inheritance law scholars have struggled to define and provide coherent 
explanations for the often inconsistent results in the case law about how to 
treat homemade letters.
72
  One approach attributes the differences to the 
jurisdiction’s (or individual court’s) view on whether extrinsic evidence is 
admissible to prove testamentary intent.
73
  Another more cynical but 
persuasive explanation posits that results depend on whether the court views 
the named beneficiaries as “worthy” or, in other words, entitled to the 
property in a normative sense.
74
  Yet another view argues that regardless of 
what appear to be random inconsistencies, having a broad approach to 
respecting letters, and thereby allowing the informal documents to replace 
the more ritualized instruments, serves the valuable goal of allowing for 
“equal planning under the law.”
75
  Perhaps least helpful but most convincing 
are the decisions and commentary observing that each case is different and 
turns on its specific language, context, facts, witnesses, juries, and jurists.
76
 
Regardless of what motivates a court to find that a decedent “intended” 
a last letter to have “testamentary” impact, the letters featured in these cases 
shed light on writers, as they contemplate death, and on the writers’ 
relationships to their respective recipients.  Consider, for example, the 
following letter from a brother to his sister, ultimately admitted to probate by 
an 1886 North Carolina court, explaining the writer’s dreams for his 
property and his family: 
I am sorry you will have to sell your land that you got from our father’s 
estate to make the payments. I don’t think I will ever sell mine. When I 
                                                          
the purpose, and with the distinct understanding that you will use the proceeds . . . for the welfare of 
your children” to be a trust and therefore not taxable in deceased husband’s estate). 
 72.  See Gulliver & Tilson, supra note 17, at n.40; Guzman, supra note 17, at 305; Hirsch, 
supra note 17, at 1073–74 & 1074 n.50; Leslie, supra note 17, at 284–89. 
 73.  See Guzman, supra note 17, at 337–38 (discussing Edmundson v. Estate of Fountain, 189 
S.W.3d 427, 428–29 (Ark. 2004), in which the court refused to look past the four corners of a 
homemade document labeled “Last Will,” because “extrinsic evidence is appropriate only when the 
instrument contains some words expressing an intent to dispose of property”); cf. Minton v. Minton, 
374 S.W.3d 818, 821–22 (Ark. Ct. App. 2010) (refusing to admit extrinsic evidence but finding 
holographic codicil). 
 74.  See Leslie, supra note 17, at 284–85 (“[C]ourts found that letters evinced the requisite 
testamentary intent where the letters arguably satisfied the testator’s moral obligations and/or where 
the distribution according to the intestacy statute arguably would have been ‘unjust.’”). 
 75.  See Hirsch, supra note 17, at 1074–75; see also Clowney, supra note 43, at 55 
(“Handwritten wills . . . remain a vitally important cog in estate planning machinery because they 
allow testators to deviate from intestacy laws without paying costly attorneys’ fees.”). 
 76.  See, e.g., In re Smilie’s Estate, 222 P.2d 692, 696 (Cal. Dist. Ct. App. 1950) (“There is no 
definite, fixed rule by which testamentary intention may be gauged, but each case must stand upon 
its own peculiar facts.”); Brown, supra note 16, at 116 (“Simply put, the law in this area lacks 
coherence.” (footnotes omitted)). 
  
2014] LETTERS NON-TESTAMENTARY 601 
get old I am going to build on it, so I can have it as a home when I get 
old. If I should die or get killed in Texas, the place must belong to you; 
and I would not want you to sell it. I don’t care about tenants put on it. I 
am afraid they will destroy the timber on it. If I could walk over the 
tract, and pick out a place that suited me to build, I would not mind 
allowing a good tenant to build, and open a small field on the tract, and 
I am willing for you to pick out a pretty place to build on for me. . . . 
My sweet sister, I don’t want you to trouble yourself, or to allow these 
little trifles of mine that I speak to you about to bother you in the least. 
I merely mention them that you may know how to act in case you 
should feel like attending to them for me or should have a convenient 
opportunity.
77
 
Equally compelling, albeit entirely different, concerns can be found in a 
2012 Nevada Supreme Court case in which the writer “on the way home 
from Mom’s funeral” explained in his informal letter that “Mom died from 
an auto accident so I thought I had better leave something in writing so that 
you . . . will receive my entire estate.  I do not want my brother . . . or any of 
my other relatives to have one penny.”
78
  In short, the language in these 
personal letters brings to life the position of the writers and documents their 
connections to their chosen recipients.  In one sense, such letters are 
primitive because they are unrefined and non-legal, at least as traditionally 
defined.  In another sense, the letters are literate, communicative, and 
compelling to a reader.  Testamentary or not, they reveal a diversity of voice 
and resourcefulness that testifies to their authors’ unique humanity and 
overwhelming desire to reach their recipients. 
Before moving from the letters “testamentary” quoted above to letters 
“non-testamentary”—in other words, letters that do not purport to supplant 
or replace formal testamentary documents but deliberately seek to 
supplement and refine them—it is helpful to look at the rhetorical 
characteristics that define letters generally and “last letters” in particular.  As 
discussed in the following Part, letters, as a distinct written genre, involve 
communication solely between writer and recipient; personal letters, 
intended to be private, do not contemplate a third-party audience, like a 
court.  This and other elements of the genre, discussed below, help show 
why a writer might choose this format over another, since “individuals 
perceive homologies in circumstances that encourage them to see these as 
                                                          
 77.  Alston v. Davis, 24 S.E. 15, 16 (N.C. 1896). 
 78.  In re Estate of Melton, 272 P.3d 668, 671–72 (Nev. 2012).  When the friend ended up 
predeceasing the author, the court, which found the letter to be a will, allowed the property to 
escheat to the state rather than pass to the writer’s daughter, who would have inherited under the 
governing intestacy rules.  Id. 
  
602  KANSAS LAW REVIEW [Vol. 62 
occasions for similar kinds of utterances.”
79
 
III. LAST LETTERS: GENRE AND COMMUNITY 
Last letters comprise a distinct, if rudimentary and unsophisticated, 
genre that follows certain formal and functional strictures derived from their 
shared subject matter: separation.  Although they bear similarities to the 
legal genres that govern inheritance—wills as the most formal and trusts as 
somewhat less so—last letters reflect an awareness of the social, communal 
relationship between the writer and her chosen audience and a heightened 
and emotional recognition of that relationship ending as the separation 
looms.  This primitive but tenacious genre allows writers to invoke empathy 
in their readers.  Case law is correct to recognize the legitimacy of these 
expressions, even as it struggles with how to use them. 
A. Letters Generally and Generically 
Resting on the concept that “meaning is constructed out of the 
interaction of reader and writer, text and context,” rhetorical analysis 
facilitates society’s understanding of the role and importance of any written 
instrument.
80
  Originating in the fifth century B.C.E. with Corax of 
Syracuse
81
 and extending to Aristotle, who systematized the classical 
standards of rhetoric approximately a century later,
82
 this area of study looks 
at how individuals use symbols to communicate
83
 and the effect of those 
choices on an audience.
84
  Crucial to the understanding of any text, be it a 
                                                          
 79.  Bazerman, Systems of Genres, supra note 30, at 82. 
 80.  Linda L. Berger, Linda H. Edwards, & Terrill Pollman, The Past, Presence, and Future of 
Legal Writing Scholarship: Rhetoric, Voice, and Community, 16 J. LEGAL WRITING INST. 521, 521 
(2010); see also Linda L. Berger, Applying New Rhetoric to Legal Discourse: The Ebb and Flow of 
Reader and Writer, Text and Context, 49 J. LEGAL EDUC. 155 (1999). 
 81.  SONJA K. FOSS, KAREN A. FOSS, & ROBERT TRAPP, CONTEMPORARY PERSPECTIVES ON 
RHETORIC 4–7 (3d ed. 2002) [hereinafter FOSS ET AL., CONTEMPORARY PERSPECTIVES]. 
 82.  Id. at 7. 
 83.  See, e.g., SONJA K. FOSS, RHETORICAL CRITICISM: EXPLORATION AND PRACTICE 3 (4th ed. 
2009) [hereinafter FOSS, RHETORICAL CRITICISM] (“How we perceive, what we know, what we 
experience, and how we act are the results of the symbols we create and the symbols we encounter in 
the world . . . . We choose to communicate in particular ways based on what we have discovered. 
This process is called rhetorical criticism.”). 
 84.  See, e.g., Herbert A. Wichelns, The Literary Criticism of Oratory, in LANDMARK ESSAYS 
ON AMERICAN PUBLIC ADDRESS 1 (Martin J. Medhurst ed., 1993); Introduction to METHODS OF 
RHETORICAL CRITICISM: A TWENTIETH-CENTURY PERSPECTIVE 24–25 (Bernard L. Brock, Robert L. 
Scott, & James W. Chesebro eds., Wayne State Univ. Press 3d rev. ed. 1990) (discussing Herbert 
Wichelns’s essay).  Rhetorical analysis can take many forms, including “metaphor criticism, 
ideological criticism, narrative criticism, and pentadic criticism.” Karen J. Sneddon, In the Name of 
 
  
2014] LETTERS NON-TESTAMENTARY 603 
speech, statute, will, or letter, is not only an analysis of the specific language 
and syntax used by the creator but also an analysis of the genre that the 
creator selects to house that language.
85
  So-called “generic” rhetorical 
criticism posits that by looking at “traditions and affinities” of a genre, a 
critic can “bring[] out a large number of literary relationships that would not 
be noticed as long as there were no context established for them.”
86
  For 
example, a eulogy will convey different meaning, receive different 
treatment, and shed different insights on author, audience, and situation than 
a sonnet, even if both texts commemorate the same individual.  Rhetorical 
genre studies, which seek less to “classify as to clarify,”
87
 look at different 
                                                          
God Amen: Language in Last Wills and Testaments, 29 QUINNIPIAC L. REV. 665, 673 (2011) 
[hereinafter Sneddon, In the Name of God].  Modern scholars have used different rhetorical 
strategies to analyze communications as diverse as inaugural addresses, laboratory reports, television 
programs, popular music, and patents.  See, e.g., Karlyn Kohrs Campbell & Kathleen Hall Jamieson, 
Inaugurating the Presidency, in METHODS OF RHETORICAL CRITICISM: A TWENTIETH-CENTURY 
PERSPECTIVE, supra, at 343 (inaugural addresses); Catherine F. Schryer, The Lab vs. the Clinic: 
Sites of Competing Genres, in GENRE AND THE NEW RHETORIC 105 (Aviva Freedman & Peter 
Medway eds., 1994) (laboratory reports); Tamar Liebs, Cultural Differences in the Retelling of 
Television Fiction, in METHODS OF RHETORICAL CRITICISM: A TWENTIETH-CENTURY PERSPECTIVE, 
supra, at 461 (television programs); Erin E. Bassity, Rhetorical Strategies for Generating Hope: A 
Cluster Analysis of P!nk’s “Dear Mr. President”, in FOSS, RHETORICAL CRITICISM: EXPLORATION 
AND PRACTICE, supra note 83, at 92 (popular music); Bazerman, Systems of Genres, supra note 30, 
at 79 (patents).  For an exploration of the theory and skills involved in the different forms of critical 
inquiry, see generally FOSS, RHETORICAL CRITICISM, supra note 83.  For an introduction to the 
proponents of contemporary rhetorical theory, see generally FOSS ET AL., CONTEMPORARY 
PERSPECTIVES, supra note 81. 
 85.  A genre is defined as a “group of discourses which share substantive, stylistic, and 
situational characteristics” that are distinctive because they are always found together.  KARLYN 
KOHRS CAMPBELL & KATHLEEN HALL JAMIESON, FORM AND GENRE: SHAPING RHETORICAL 
ACTION 20 (1978); see also id. at 19 (“[R]hetorical forms that establish genres are stylistic and 
substantive responses to perceived situational demands.”).  Analyzing a genre can force us “to 
reanalyze and rethink the social, cultural, political purposes of previously taken-for-granted genres, 
and leads to an archeological unearthing of tacit assumptions, goals and purposes.”  Aviva Freedman 
& Peter Medway, Locating Genre Studies: Antecedents and Prospects, in GENRE AND THE NEW 
RHETORIC 2 (Aviva Freedman & Peter Medway eds., 1994). 
 86.  NORTHROP FRYE, ANATOMY OF CRITICISM: FOUR ESSAYS 247–48 (1957); see also 
CAMPBELL & JAMIESON, FORM AND GENRE, supra note 85, at 26–27 (“Recurrence of a combination 
of forms into a generically identifiable form over time suggests that certain constants in human 
action are manifest rhetorically. . . . Whatever the explanation, the existence of the recurrent 
provides insight into the human condition.”); Bazerman, Letters, supra note 2, at 16 (citing multiple 
studies) (“Genres help us navigate the complex world of written communication and symbolic 
activity, because in recognizing a text type we recognize many things about the institutional and 
social setting, the activities being proposed, the roles available to writer and reader, the motives, 
ideas, ideology, and expected content of the document, and where this all might fit in our life.”); 
Karen Petroski, Statutory Genres: Substance, Procedure, Jurisdiction, 44 LOY. U. CHI. L.J. 189, 
245–55 (2012) (describing the history and development of genre theory and explaining that 
“[i]dentifying the genre to which a communication belongs adds to the repertoire of tools available 
to explain the meaning of that communication”). 
 87.  FRYE, supra note 86, at 247. 
  
604  KANSAS LAW REVIEW [Vol. 62 
types of written discourse, “characterized by similarities in content and 
form,” and situate those similarities in a broader social and cultural 
context.
88
 
Letter writing is a broad “primary” genre.
89
  As compared with other 
forms of written discourse, letters are characterized by the fact that they are 
grounded in relationship and contemplate an exchange between 
participants.
90
  In the words of Peter Goodrich, “the letter is a messenger” 
and “necessarily engages sender and recipient in a relationship with both a 
personal and a public dimension, with both an emotional and a cognitive 
content.”
91
  While all written genres involve a delicate balance between 
author and reader, letter writing might be characterized as the most 
deliberately social.
92
  When a letter writer sits down to pen her missive, she 
                                                          
 88.  Freedman & Medway, supra note 85, at 1; see also Carolyn R. Miller, Genre as Social 
Action, in GENRE AND THE NEW RHETORIC 23, 23–24 (Aviva Freedman & Peter Medway eds., 
1994) (“[G]enre study is valuable not because it might permit the creation of some kind of 
taxonomy, but because it emphasizes some social and historical aspects of rhetoric that other 
perspectives do not.”) (article originally published in 70 QUARTERLY J. OF SPEECH 151 (1984)). 
 89.  See David Barton & Nigel Hall, Introduction to LETTER WRITING AS A SOCIAL PRACTICE 6 
(David Barton & Nigel Hall eds., 1999); see also George Kamberelis, Genre as Institutionally 
Informed Social Practice, 6 J. CONTEMP. LEGAL ISSUES 115, 122–23 (1995) (discussing the work of 
Mikhail Bakhtin, among others, which describes “primary” genres as arising from everyday 
communicative activities).  In addition to personal letters, primary genres would include 
conversations, service interactions, and other such communicative activities, written or spoken.  
Secondary genres derive from the primary genres and are described as specific to a discipline, for 
example “legal documents, constitutional amendments, novels, and laboratory reports.”  Id. at 123.  
Speechmaking, for example, may be considered a genre but it can be divided into “forensic, 
deliberative, and ceremonial forms” which also can be broken down into subtypes.  Introduction to 
FORM, GENRE, AND THE STUDY OF POLITICAL DISCOURSE 8 (Herbert W. Simons & Aram A. 
Aghazarian eds., 1986).  What matters, scholars of rhetoric agree, is not specificity but rather the 
“presence of a characteristic set of formal elements given systemic play in response to a recurring 
situation.”  Id. at 9. 
 90.  In his article Epistolary Justice: The Love Letter as Law, Professor Goodrich writes that the 
letter, as a  
rhetorical form . . . was designed principally to plead or state a cause, to persuade or to 
move to action.  In both civil and common law, the numerous offices of writing, of 
sending, receiving, noting, proclaiming, and filing letters are organized, therefore, around 
the act or message which the letter performs or announces.  Early legislation thus took the 
form of letters patent and was addressed to specific officials.  
Peter Goodrich, Epistolary Justice: The Love Letter as Law, 9 YALE J.L. & HUMAN. 245, 267 (1997) 
[hereinafter Goodrich, Epistolary Justice]. 
 91. Id. at 272. 
 92.  Barton & Hall, supra note 89, at 6–8; see also Bazerman, Letters, supra note 2, at 16 (“The 
letter, in its directness of communication between two parties within a specific relationship in 
specific circumstances (all of which could be commented on directly), seemed to provide a flexible 
medium out of which many functions, relationships, and institutional practices may develop—
making new uses socially intelligible at the same time as allowing the form of communication to 
develop in new directions.”). 
  
2014] LETTERS NON-TESTAMENTARY 605 
not only chooses her artifacts of writing,
93
 which might be a favorite pen or a 
special desk or a new computer, and her subject matter, but also she chooses 
her recipient.  In contrast, although the authors of other forms of discourse 
unquestionably consider their respective audiences as they aim to craft 
always coherent and sometimes transformative prose, the audience is 
theoretical and therefore incidental to, rather than a fundamental part of, the 
rhetoric.  By making the pragmatic decision to write a letter, rather than a 
poem, speech, or will, for example, the author chooses a specific reader.  
Her activity is therefore more communal, less solitary.
94
 
Present in all letters are certain formal elements, including a sender, a 
recipient, and a body of text linking the two.
95
  Some linguistic analysts have 
been even more specific, identifying the five components of letters as 
“Salutation, Securing of good-will, Narrative, Petition and Conclusion.”
96
  
Letters as a genre also explicitly involve a consciousness in time and space 
because “spatial distance is often the main reason for the letter’s existence 
and there is a time lag between the writing and the reading.”
97
  Charles 
Bazerman traces the history of letters back to the ancient Near East and 
Greece and recalls how early letters delivered commands and military 
projections from an authority in one location to a recipient in another.
98
  
From an invention designed primarily to “mediate distance,” letters evolved 
to include “expressions of personal concerns” and scholarly lessons on 
topics ranging from philosophy to rhetoric to mathematics.
99
  Indeed, a 
special branch of rhetoric, the “ars dictaminis,” emphasized the important 
components of a letter, including the social roles of sender and recipient; 
“letter writers were advised to build the bond of good will with the recipient 
by invoking sentiment and obligation.”
100
  Goodrich describes the art of 
                                                          
 93.  Barton & Hall, supra note 89, at 6–8. 
 94.  Goodrich, Epistolary Justice, supra  note 90, at 264–65 (letter’s primary focus is “with the 
mapping of relationships, with a war against distance, with communications between absent 
parties”). 
 95.  See Bazerman, Letters, supra note 2, at 18 (“The ongoing relationships and transactions are 
directly brought to mind to writer and reader through the salutation, signature, and content of the 
letter.”). 
 96.  Barton & Hall, supra note 89, at 6. 
 97.  Id.  
 98.  Bazerman, Letters, supra note 2, at 17–18. 
 99.  Id. at 18; Amanda Wilcox, Sympathetic Rivals: Consolation in Cicero’s Letters, 126 AM. J. 
PHILOLOGY 237, 237–55 (2005). 
 100.  Bazerman, Letters, supra note 2, at 20.  Medieval Europe saw many forms and instructions 
about letter writing, with rising popularity and use among women in particular.  See generally Janet 
Gurkin Altman, Women’s Letters in the Public Sphere, in GOING PUBLIC: WOMEN AND PUBLISHING 
IN EARLY MODERN FRANCE 99 (Elizabeth C. Goldsmith & Dena Goodman eds., 1995); Shawn D. 
Ramsey, The Voices of Counsel: Women and Civic Rhetoric in the Middle Ages, 42 RHETORIC 
 
  
606  KANSAS LAW REVIEW [Vol. 62 
letter writing as a “medieval development of a branch of rhetoric” which, 
“[i]n classical rhetorical terms,” contained only two types: “official or 
intimate, negotiales or familiares.”
101
  When a letter writer opts to pen a 
letter “familiar” with its intimate “flourish of the pen,” especially in “this 
age of remorseless mechanical reproduction, despite the ease of e-mail and 
of all the other facilities of word processing,”
102
 her choice of form reflects 
an attitude of openness and intimacy.
103
  In other words, even if the letter’s 
language does not acknowledge intimacy,
104
 the genre continues a 
conversation with “‘an absent friend’” and thus is an eloquent recognition of 
the relationship between author and reader.
105
 
The genre of letters can be further divided to include countless 
secondary genres, including but not limited to business letters, love letters, 
demand letters, invitations, complaints, letters of condolence, letters to 
editors, thank you notes, and, most importantly for the purposes of this 
Article, last letters, which are written in contemplation of separation or 
death, looming or otherwise.
106
 
B. “Last Letters” or Letters Non-Testamentary as a Distinct Sub-Genre 
Most of the secondary genres of letters, whether official or intimate, 
might be characterized as bilateral.  The letter writer intends to engage in a 
dialogue with a recipient from whom a response is anticipated; it is the 
exchange of two or more epistles that comprises a dedicated whole.
107
  
                                                          
SOC’Y Q. 472 (2012). 
 101.  Goodrich, Epistolary Justice, supra note 90, at 266. 
 102.  Peter Goodrich, The Immense Rumor, 16 YALE J.L. & HUMAN. 199, 231–32 (2004) 
[hereinafter Goodrich, Immense Rumor].   
 103.  Id. at 232. 
 104.  Id. (“[W]hen it comes to talking of the role or practice of friendship . . . analysis runs out 
and words fail.”). 
 105.  Id. (quoting DE LA SERRE, LE SECRETAIRE LA MODE 6 (1632)). 
 106.  Barton & Hall, supra note 89, at 7 (describing typologies of letter sub-genres); see 
generally JENNY & TIM SAVILLE, COMPLETE LETTER WRITER (1995); GREVILLE JANNER, THE ART 
OF LETTER WRITING (1989). 
 107.  Crinquand, supra note 6, at 2 (“Writing a letter is an act of communication between a 
letter-writer and an addressee, and the letter-writer expects a response to his letter, so that the 
epistolary contract may be fulfilled.”).  One scholar, who analyzed letters by ancient rhetors like 
Pliny and Jerome, explained that “there was an unspoken understanding among friends that whoever 
received the ‘gift’ of a letter incurred a debt of gratitude to the sender, a debt that could be paid only 
by reciprocation with a reply.”  Andrew Cain, Vox Clamantis in Deserto: Rhetoric, Reproach, and 
the Forging of Ascetic Authority in Jerome’s Letters from the Syrian Desert, 57 J. THEOLOGICAL 
STUD.  500, 504–05 (2006).  In fact, a letter’s content “was not nearly as important as the friendly 
gesture of sending it.”  Id. at 505 n.28 (noting how ancient friendship letters, like today’s holiday 
cards, show “it is the thought that counts”).  If a letter writer claimed to have nothing to write, he 
 
  
2014] LETTERS NON-TESTAMENTARY 607 
Another sub-genre of letters includes those written by authors who are 
particularly cognizant of the public nature of their discourse.  Examples of 
this type of letter, which might be called omni-lateral, have prompted intense 
rhetorical scrutiny, because the writing employs formal techniques to further 
its persuasiveness and, therefore, its effect on a larger audience of readers.
108
  
While social interaction is essential to the writers of this type of letter too, 
the writer’s primary purpose is to persuade not only the specific recipients 
but also other unidentified readers to act or think in a particular way.
109
 
The letters that feature most commonly in the inheritance context 
prompt yet a third category, which “seems to contradict the very essence of 
the epistolary genre”
110
 because, although the author shows an awareness of 
and a desire to connect with her specified recipient, she neither solicits nor 
expects a response.  These letters, which might be called unilateral, are 
defined by their subject matter; they focus on imminent or at least upcoming 
terminations, such as the author’s impending death, relinquishment of 
power, or intent to sever emotional ties.  They may involve a simple plan, 
like the father’s letter about farming to his sons in Kimmel, or an expression 
of emotion, like the private letter from the sister to her brother in Henderson 
in which she expressed anxiety that her family receive adequate care on her 
demise.
111
 
To a letter writer, a last letter helps bridge that anticipated separation, 
thereby providing a strategy for dealing with the distance between the person 
                                                          
was reproached with not writing “this very thing, that you had nothing to write.”  See id. at 510. 
 108.  See, e.g., Diane Marie Blair, I Want You To Write Me: Eleanor Roosevelt’s Use of 
Personal Letters as a Rhetorical Resource, 72 W. J. COMM. 415 (2008); David Charles Gore, Joseph 
Smith’s Letter from Liberty Jail as an Epistolary Rhetoric, 43 DIALOGUE: J. MORMON THOUGHT 43, 
43–70 (2010); Kristin S. Vonnegut, Poison or Panacea?: Sarah Moore Grimkes’s Use of the Public 
Letter, 46 COMM. STUD. 73 (1995). 
 109.  Martin Luther King, Jr.’s Letter from a Birmingham Jail, for example, was written as a 
strategic response to a public statement from the white clergy of Birmingham, Alabama advocating 
patience in civil rights agenda, and numerous scholars have dissected the letter as a model of 
rhetorical devices.  See, e.g., Edward Berry, Doing Time: King’s Letter from Birmingham Jail, 8 
RHETORIC & PUB. AFF. 109, 109–31 (2005); Michael Leff & Ebony A. Utley, Instrumental and 
Constitutive Rhetoric in Martin Luther King, Jr.’s Letter from a Birmingham Jail, 7 RHETORIC & 
PUB. AFF. 37, 37–51 (2004); Michael Osborn, Rhetorical Distance in Letter from Birmingham Jail, 7 
RHETORIC & PUB. AFF. 23, 26 (2004); John H. Patton, A Transforming Response: Martin Luther 
King Jr.’s Letter from Birmingham Jail, 7 RHETORIC & PUB. AFF. 53, 53–54 (2004); Martha 
Solomon Watson, The Issue Is Justice: Martin Luther King Jr.’s Response to the Birmingham 
Clergy, 7 RHETORIC & PUB. AFF. 1, 2 (2004).  Omni-lateral letters were published by their authors 
as forms of propaganda to promote their public personae and objectives.  Cain, supra note 107, at 
513–14. 
 110.  Crinquand, supra note 6, at 2. 
 111.  In re Kimmel’s Estate, 123 A. 405, 405 (Pa. 1924); Henderson v. Henderson, 33 S.E.2d 
181, 182 (Va. 1945).  
  
608  KANSAS LAW REVIEW [Vol. 62 
who is leaving, dying, severing contact, or ceding control, and the person or 
people left behind.
112
  Unlike formal legal documents, this rhetorical purpose 
is achieved without intrusion from third parties, such as a spokesman, 
scrivener, or court.  As such, this intimate form of communication 
“illuminates the situations of others . . . and is a means of relating to another 
or making another intelligible.”
113
  In this way, last letters are a mechanism 
for empathy, which means that they “tend to influence the emotional 
reactions of one person . . . [to] produce a match (roughly, some sort of 
congruence) between these emotions and those of another person.”
114
  
Intensely focused on the recipient, the genre helps convey to that recipient 
the writer’s practical concerns about property and the writer’s feelings about 
dying. 
To a third-party reader who comes upon this writing, last letters are “far 
more dramatic than ‘ordinary’ letters” because a last letter signifies “the end 
of an exchange” and shares “an attitude towards closure.”
115
  As Sylvie 
Crinquand puts it,  
The writer’s awareness of entrusting the letter with [her] ultimate 
words makes these texts emotional, not so much because the letter-
writers express their emotion in touching terms—very few of them 
mention their fear, for instance, although sadness is a common 
feature—but because the knowledge of what happened to them after 
writing the letter cannot be dissociated from the reading experience.
116
   
In the non-legal context, for example, Crinquand points to letters from 
members of the French Resistance about to be executed, who expressed 
“love for their country and belief in higher ideals” which “helped to put their 
own death in perspective,” thereby “transcend[ing] the individual and 
sometimes becom[ing] emblematic of both human mortality and human 
                                                          
 112.  See FOSS, RHETORICAL CRITICISM, supra note 83, at 63–64. 
 113.  Lynne N. Henderson, Legality and Empathy, 85 MICH. L. REV. 1574, 1580–81 (1987); see 
generally Susan Bandes, Empathy, Narrative, and Victim Impact Statements, 63 U. CHI. L. REV. 361 
(1996) (describing how empathy—legal, and rhetorical—allows for an understanding of each 
individual’s unique humanity). 
 114.  D’Arms, supra note 27, at 1480.  Empathy has been defined as “‘the action of 
understanding, being aware of, being sensitive to, and vicariously experiencing the feelings, 
thoughts, and experience of another . . . without having the feelings, thoughts, and experience fully 
communicated in an objectively explicit manner.’”  Thomas B. Colby, In Defense of Judicial 
Empathy, 96 MINN. L. REV. 1944, 1958 (2012) (quoting MERRIAM-WEBSTER’S COLLEGIATE 
DICTIONARY 408 (11th ed. 2003)). 
 115.  Crinquand, supra note 6, at 2–3 (compiling essays on different forms of “last letters,” real 
and fictional). 
 116.  Id. at 3. 
  
2014] LETTERS NON-TESTAMENTARY 609 
resilience.”
117
  In the legal context, as Part I shows, courts cannot resist 
quoting the language even when the effect is unclear. 
C. Examples: Sir Thomas More and the Kay Jewelers Heir 
Two “last letters” that reflect characteristics of, and thereby help 
illustrate and delineate, the genre of letters non-testamentary are Sir Thomas 
More’s July 5, 1535 letter to his favorite daughter Margaret, written the day 
before he was executed,
118
 and Richard Kaufmann’s 1961 letter to his two 
brothers, explaining why his estate plan benefitted his lover and not his 
blood relatives.
119
  Separated by continents, centuries, and circumstances, 
both letter writers found themselves in a form of prison and used the 
emotional relief of the letter non-testamentary as a type of escape 
mechanism.  The two letters contain the specific markings of the genre in 
form and substance. 
Thomas More, the former Lord Chancellor of England, was confined to 
the Tower of London for more than a year because he refused to recognize 
Henry the VIII’s authority over the Church of England.
120
  While 
incarcerated, More exchanged letters with his family in which he both 
consoled them about his absence and informed them of the interrogations to 
which he was regularly subjected.
121
  These letters have been characterized 
as “functional rather than personal” because they appear to have been 
written “with great circumspection” and “for an audience that extended well 
beyond the family circle.”
122
  For example, in these letters More does not 
denigrate or complain but rather refers with respect to his visitors;
123
 the 
letters do not argue or scold but rather echo More’s allegiance to the realm 
and to his “gracious . . . Prince.”
124
  In all, the regular correspondence with 
his family reflects More’s public persona.
125
 
More’s last letter, though, has a far more intimate, if ultimately prosaic, 
                                                          
 117.  Id. 
 118.  Terence McCarthy, “No Leisure to Look to Worldly Courtesy”: The Last Letter of Sir 
Thomas More, July 5th 1535, in LAST LETTERS, supra note 6, at 100. 
 119.  In re Will of Kaufmann, 247 N.Y.S.2d 664, 671 (N.Y. App. Div. 1964), aff’d 205 N.E.2d 
864 (N.Y. 1965). 
 120.  McCarthy, supra note 118, at 101–02. 
 121.  Id. at 101–03 (citing THE CORRESPONDENCE OF SIR THOMAS MORE (E.F. Rogers ed., 
Princeton Univ. Press 1947) [hereinafter “CORRESPONDENCE”]). 
 122.  McCarthy, supra note 118, at 103. 
 123.  Id. at 102–03. 
 124.  Id. at 104 (quoting CORRESPONDENCE, supra note 121, at 542). 
 125.  Id. at 103–04 (prison letters “clearly written with posterity in mind”). 
  
610  KANSAS LAW REVIEW [Vol. 62 
tone.
126
  Although this letter lacks a conclusion because More was killed 
before completing it, the letter contains the other formal markers of the letter 
genre: salutation, securing of good will, narrative, and petition.
127
  For 
example, More opens the letter to his daughter Margaret by asking for a 
blessing on her and her family as follows: “Owr Lorde blisse you goode 
dowter and your goode husbande and your little boye and all yours and all 
my children and all my godchildren and all owr friendis.”
128
  This greeting 
affirms More’s connection to his daughter and recognizes both of their 
places within a broader web of connections.  The words More selects to 
salute Margaret and secure her good will reappear throughout the text; the 
short epistle contains some form of the words “good,” “loving,” and “bless” 
in nearly every line.
129
  Although this redundancy has led the letter to be 
characterized as “stylistically numb”
130
 and written by someone who 
appeared “scarcely able to handle a pen,”
131
 the commonplace language and 
lack of complexity
132
 reveal the primacy of More’s end-of-life narrative: 
blessings to all of his “goode” daughters and sons and their “goode” 
husbands, wives, and children whom More beseeches to pray for him until 
they “maie merily meete in heauen.”
133
  Reaffirming the intimate and trivial, 
More refers in the letter to tangible items, like a handkerchief 
(“handekercher”), a “picture in parchemente,” and other “tokens.”
134
  More 
notably, though, More uses the letter to tell his beloved daughter that he is 
ready “to goe to God” and “neuer liked your maner towarde me better than 
when you kissed me laste for I loue when doughterly loue and deere charitie 
hath no laisor to looke to worldely curtesye.”
135
  A public figure for most of 
his existence, More uses his last letter for the private purpose of being 
remembered and of remembering Margaret and, through her, the other 
women and men in his life.  He achieves connection not by anticipation of a 
response, for none was expected, but rather through direct, simple, and 
highly accessible prose and in the most amiable of forms. 
                                                          
 126.  Id. at 100–01 (quoting letter in full); see also id. at 109–10. 
 127.  See supra text and accompanying notes 95–99. 
 128.  McCarthy, supra note 118, at 100. 
 129.  Id. at 100–01, 108. 
 130.  Id. at 110. 
 131.  Id. 
 132.  Id. at 109 (“The vocabulary is simple and predominantly monosyllabic; only 49 words out 
of 418 have more than one syllable.” (footnote omitted)). 
 133.  Id. at 100. 
 134.  Id. 
 135.  Id. 
  
2014] LETTERS NON-TESTAMENTARY 611 
While Robert D. Kaufmann, heir to the Kay Jewelers fortune,
136
 did not 
pen his last letter from prison or on his deathbed, he did write the memorable 
letter in anticipation of his death.
137
  Kaufmann, who died in a fire when he 
was in his mid-forties, left the bulk of his estate to his live-in companion and 
business manager, Walter Weiss.
138
  With money on their side, the “natural” 
objects of the testator’s bounty, his blood relatives, contested the probate of 
his will by arguing that Weiss had exerted “undue” influence over 
Kaufmann.  Two separate juries
139
 and several appellate courts agreed.
140
  
Starting in 1950 and until he died, Kaufmann had executed a series of formal 
wills leaving increasing portions of his estate to Weiss.
141
  In 1951, at the 
time he first changed the will to leave a sizeable portion of his estate to a 
man “‘not a member of my family,’” Kaufmann wrote a letter to his relatives 
explaining the reasons for this shift.
142
 
The Kaufmann letter, which has been described as a “coming out of the 
closet at death” letter,
143
 also contains many of the formal markers of the last 
letter genre.  Although the full writing is not reproduced in any of the 
published court decisions, the letter was addressed to Kaufmann’s brothers, 
who were the recipients and intended readers.  Kaufmann starts his narrative 
by recounting that when he met Weiss, Kaufmann was a ‘“frustrated time-
wasting little boy,”‘ but that Weiss gave him “the courage to start 
                                                          
 136.  See Ray D. Madoff, Unmasking Undue Influence, 81 MINN. L. REV. 571, 593 & n.72 
(1997). 
 137.  In re Will of Kaufmann, 247 N.Y.S.2d 664, 671 (App. Div. 1964), aff’d 205 N.E.2d 864 
(N.Y. 1965).  For several of many commentaries on this case, see, e.g., DUKEMINIER & SITKOFF, 
supra note 8, at 298–99; LAWRENCE M. FRIEDMAN, DEAD HANDS: A SOCIAL HISTORY OF WILLS, 
TRUSTS, AND INHERITANCE LAW 97 (2009); ANDREW KOPPELMAN, SAME SEX, DIFFERENT STATES: 
WHEN SAME-SEX MARRIAGE CROSSES STATE LINES 1–4 (2006); STEWART E. STERK, MELANIE B. 
LESLIE, & JOEL C. DOBRIS, ESTATES AND TRUSTS 493–501 (4th ed. 2011); Horton, supra note 28, at 
94–99; Madoff, supra note 136, at 592–600. 
 138.  Kaufmann, 247 N.Y.S.2d at 666. 
 139.  Id. at 665; see also In re Will of Kaufman, 221 N.Y.S.2d 601, 603 (App. Div. 1961). 
 140.  Kaufmann, 247 N.Y.S.2d at 684 (finding Kaufmann’s will to have resulted from “an 
unnatural, insidious influence operating on a weak-willed, trusting, inexperienced [testator]”); see 
also In re Will of Kaufmann, 205 N.E.2d 864, 864–65 (N.Y. 1965) (“Where, as here, the record 
indicates that testator was pliable and easily taken advantage of, as proponent admitted, that there 
was a long and detailed history of dominance and subservience between them, that testator relied 
exclusively upon proponent’s knowledge and judgment in the disposition of almost all of the 
material circumstances affecting the conduct of his life, and proponent is willed virtually the entire 
estate, we consider that a question of fact was presented concerning whether the instrument offered 
for probate was the free, untrammeled and intelligent expression of the wishes and intentions of 
testator or the product of the dominance of the beneficiary.” (citations omitted)). 
 141.  Kaufmann, 247 N.Y.S.2d at 670–80. 
 142.  Id. at 671. 
 143.  JESSE DUKEMINIER, ROBERT H. SITKOFF & JAMES LINDGREN, WILLS, TRUSTS, AND 
ESTATES 191 (8th ed. 2009). 
  
612  KANSAS LAW REVIEW [Vol. 62 
something” and to “supply for myself everything my life had heretofore 
lacked.”
144
  In Kaufmann’s words, Weiss provided him with “an outlet for 
[his] long-latent but strong creative ability in painting” and helped him 
achieve “a balanced, healthy sex life which before had been spotty, furtive 
and destructive.”
145
  Kaufmann described the “[p]eace of [m]ind,” “delight,” 
maturity, and “relief” Weiss brought to his life and the gratitude he felt 
towards this “dearest friend” and “best pal.”
146
  He ends the letter with a 
petition, asking his brothers “[w]hat could be more wonderful than a fruitful, 
contented life and who more deserving of gratitude now, in the form of an 
inheritance, than the person who helped most in securing that life,” and 
entreating them to be “glad and happy for my own comfortable self-
determination and contentment and equally grateful to the friend who made 
it possible.”
147
  Like More, Kaufmann solicited no response from his 
recipients.  Like More, Kaufmann highlights what is important to him 
through redundancy; in place of “good,” “loving,” and “bless,” though, 
Kaufmann repeats the words “life,” “contentment,” and “gratitude.”
148
 
Although the language of the Kaufmann letter is somewhat more varied 
and cheerful than that of the More letter, it reflects many shared 
characteristics that go beyond the decision to use the letter form with its 
general qualities but overriding informality.  First, like More’s letter to his 
daughter, Kaufmann’s letter to his brothers is highly personal.  Second, the 
letter acknowledges that a termination is at hand and recognizes that this 
termination will change the writer’s relationship to the recipient or 
recipients; Kaufmann’s repetition of the word “life” indicates this 
retrospective approach.  Third, the letter reflects the writer’s priorities at a 
significant moment and tries to establish a connection with the recipients so 
that they may share those priorities; in that way, the letter attempts to build 
empathy in the readers and bridge a gap that death will engender.  A 
memorandum, speech, will, or poem might have provided greater solemnity; 
the writers here instead chose to use the far simpler letter form to reaffirm 
their important social relationships.  Fourth, although Kaufmann opens 
theatrically in the first few paragraphs, he reverts to more basic language 
(e.g. “best pal”) by the end of the letter, perhaps in an effort to make himself 
more accessible to his brothers, the recipients.  Finally, because the letter 
does not contemplate a response, it voices the writer’s final thoughts, even 
                                                          
 144.  Kaufmann, 247 N.Y.S.2d at 671. 
 145.  Id. 
 146.  Id. 
 147.  Id. 
 148.  Id. 
  
2014] LETTERS NON-TESTAMENTARY 613 
though it was written years before his death.  Although Kaufmann signed 
four new wills over the remaining years of his life, he retained the 1951 
letter in an envelope that always accompanied the formal wills.
149
  The letter 
nevertheless did not sway the court, which invalidated Kaufmann’s most 
recent will.
150
 
Genres can help identify “the possible intentions” a creator may have.
151
  
The More and Kaufmann letters were written by individuals who were aware 
of the formal strictures of the law—More was a lawyer himself,
152
 and 
Kaufmann had undergone extensive estate planning
153
—but perceived their 
impending deaths as occasions to write letters that were intimate in form, 
structure, and content. 
The primary legal genre that addresses the moment of separation—from 
property and life—is the last will.
154
  Much has been made of the ritualized 
nature of wills, even leading one scholar to characterize them as “creatures 
of form rather than substance”
155
 and another to describe the psychological 
comfort and therapeutic benefit that comes simply from the safe harbor that 
will formalities provide.
156
  Wills, in their standard form, do not refer to or 
contemplate a particular reader, other than indirectly in the form of a probate 
court, registry, and fiduciary.
157
 
                                                          
 149.  Id. 
 150.  Id. at 685–86.  
 151.  Bazerman, Systems of Genres, supra note 30, at 82. 
 152.  McCarthy, supra note 118, at 110. 
 153.  Kaufmann, 247 N.Y.S.2d at 670–82. 
 154.  Like letters, wills comprise a distinct genre that has existed since ancient times.  Sneddon, 
In the Name of God, supra note 84, at 675–80 (tracing history of wills from ancient times to 
present). 
 155.  Mann, supra note 25, at 1035. 
 156.  Glover, Testamentary Formalities, supra note 24, at 150–57. 
 157.  Professor Sneddon, in her rhetorical analysis of 168 Bibb County, Georgia wills spanning 
the years 1821 to 2003, observed that there are certain patterns that define the wills genre, including 
“(1) the lyrical title of ‘Last Will and Testament,’ (2) the invocation in the introduction, (3) the 
weighty gift, bequest, and devise of the rest, residue, and remainder, (4) the duty-laden nomination 
of executors and trustees, and (5) the resonating closing.”  Sneddon, In the Name of God, supra note 
84, at 694–711 (examining each of the ritual points in the sample); see also id. at 687–88 (noting that 
wills are written in the present tense first person and contain an “introduction; gifts of tangible 
personal property; gifts of cash, stocks, or bank accounts; gift of the residue estate; nomination of 
fiduciaries (executors, trustees, and guardians); administrative provisions (such as the waiving of 
bond); closing; attestation clause; and self-proving affidavit”).  Although the wills that Sneddon 
analyzed revealed increasing complexity over the years, id. at 687, and contained personal markers 
of the individual testators, id. at 711–17, the genre reflects these “five preserved ritual points,” id. at 
694, providing draftspersons with a certain level of comfort that the documents will function and be 
recognized.  In Sneddon’s words, “estate planning is the closest ritual of death that modern society 
has” and “[a]s befits this recognition, the will continues to incorporate framing and phrasing that 
illustrate this ritual.”  Id. at 723. 
  
614  KANSAS LAW REVIEW [Vol. 62 
Letters, in contrast, are deliberately social.  The writer reaches out to an 
identified reader to share her most intimate views as she contemplates their 
impending separation.
158
  The letter genre also allows and even seems to 
attract personal narrative, explanation, and emotion.  Finally, unlike wills 
(though akin to trusts), letters between private individuals are not available 
to the public.
159
  Accordingly, to the extent that the writer is reluctant to 
express preferences openly, the letter offers the writer a “private” forum
160
 
and more intimate form of exchange.  As one nineteenth century court 
recognized, “[t]he law and society attach deserved inviolability to private 
correspondence, and courts of justice are careful rather to guard than invade 
that inviolability.”
161
  This privacy cannot be underestimated, for estate 
disputes “not infrequently [bring] to light matters of private life that ought 
never to be made public, and in respect to which the voice of the testator 
cannot be heard either in explanation or denial.”
162
 
Bearing in mind these models and characteristics of the last letter genre, 
                                                          
 158.  Rhetorical and literary critics have examined other genres grounded in death in an attempt 
to use the “generic approach to rhetorical criticism . . . to generalize beyond the individual event 
which is constrained by time and place to affinities and traditions across time.”  CAMPBELL & 
JAMIESON, FORM AND GENRE, supra note 85, at 27.  The eulogy, for example, has been 
characterized as a genre that responds to “a situation in which a community is ruptured by death.”  
Id. at 20.  Because a eulogy is written and performed after death and by those who survive, the genre 
juxtaposes “past and present tense which recasts the relationship to the deceased to one of memory.”  
Id.  A trait of the eulogy is also to “reknit the sundered community through rhetorical devices which 
appeal to the audience to carry on the works, to embody the virtues or to live as the deceased would 
have wished.”  See FOSS, RHETORICAL CRITICISM, supra note 83, at 63–64 (discussing the work of 
Kenneth Burke, who looked at the “basic motive for rhetoric” as a creative strategy for eliminating 
division or alienation—and correspondingly for promoting identification).  Like last letters, eulogia 
address separation directly and relationally by invoking both memory and community.  See 
CAMPBELL & JAMIESON, FORM AND GENRE, supra note 85, at 20.   
 159.  See Frances H. Foster, Trust Privacy, 93 CORNELL L. REV. 555, 559 (2008) (“Publicity is 
the price a decedent pays for using ‘court-regulated devices’ such as wills or testamentary trusts as 
opposed to a ‘private arrangement’ such as a revocable trust.”); Frances H. Foster, Privacy and the 
Elusive Quest for Uniformity in the Law of Trusts, 38 ARIZ. ST. L.J. 713, 722 (2006) (“Once a will is 
filed for probate, it becomes public record for all the world to see.”). 
 160.  See, e.g., Henderson v. Henderson, 33 S.E.2d 181, 182 (Va. 1945); see also In re Crick’s 
Estate, 41 Cal. Rptr. 120, 121–22 (Cal. Dist. Ct. App. 1964) (letter to “Dear Ada: This is just for you 
to read don’t let lawyers or no one else know or there will be tax on it to. [sic] Cora Mitchell 623 
North Harvard St. L.A. telephone no. NO–50587.  She has $24,000 of mine in her box give her $500 
& the rest devide [sic] 3 ways as in rest.  I may put some more in box next fwew [sic] day if I do I 
will let you know.  As soon as things are settled so I can will make a real will . . . .”). 
 161.  Lucas v. Brooks, 23 La. Ann. 117, 121 (1871). 
 162.  Smithsonian Inst. v. Meech, 169 U.S. 398, 402 (1898); see also Martin D. Begleiter, Anti-
Contest Clauses: When You Care Enough to Send the Final Threat, 26 ARIZ. ST. L.J. 629, 637 
(1994) (“The recognition of the importance of this factor to testators by the United States Supreme 
Court is quoted in almost every case involving a no-contest clause . . . .”).  Of course, because the 
letter is the property of the recipient, she may choose to open the writing to the world or to maintain 
its privacy. See Property Rights in Letters, supra note 5, at 493, 
  
2014] LETTERS NON-TESTAMENTARY 615 
the next section returns to case law and its abundant supply of examples.  In 
contrast to the letters featured in Part I, however, those that follow were 
written by individuals who also executed formal testamentary documents 
which they decided to supplement with letters.  By focusing on the writers’ 
decisions to use the informal genre, as reflected in the selected letters’ 
rhetoric, content, and context, we can see not only skepticism about and gaps 
in how traditional estate planning documents function, but also some real 
and practical benefits of working outside inheritance law’s more traditional 
structures. 
IV. LETTERS NON-TESTAMENTARY: CONVEYING EMOTION, PURPOSE, 
AND MEANING TO A DESIGNATED RECIPIENT 
As the quotation at the opening of this Article reminds us, letters 
“compared to other genres, may appear humble, because they are so overtly 
tied to particular social relations of particular writers and readers, but that 
only means they reveal to us so clearly and explicitly the sociality that is part 
of all writing.”
163
  The letters that appear below are in part archeological in 
that they convey a “human quality,” but also “betray some sense of [the 
writer’s] history and historical context.”
164
  But because writing a letter is a 
choice and not an accident, each letter also evidences the writer’s attitudes 
towards her social situation: the author is anticipating death; she has chosen 
to execute formal estate planning documents; but she also knows something 
is missing.  Like Kaufmann, who wrote his letter to accompany but not 
replace his will, the letter writers described in this Part had an awareness of 
the law and a desire to transcend it.
165
  Some use their letters to avoid what 
might be characterized as the law’s complications.  The balance, though, are 
writers who choose the genre because they wish to mediate between 
achieving an efficient property distribution and imbuing that distribution 
with meaning.  These letters, which in general avoid theatricality for 
simplicity and performance for connection, reinforce the social relationship 
between writer and recipient without disrupting the estate plan or 
manipulating the beneficiaries. 
This result is demonstrated persuasively by focusing on one commonly 
                                                          
 163.  Bazerman, Letters, supra note 2, at 27. 
 164.  Crinquand, supra note 6, at 3; see also Barton & Hall, supra note 89, at 1 (discussing the 
pervasiveness and historical significance of letter writing). 
 165.  See Goodrich, Epistolary Justice, supra note 90, at 252–53 (describing how the love letters 
he examines are “both more than law and in breach of law”). 
  
616  KANSAS LAW REVIEW [Vol. 62 
used last letter, called a “letter of wishes.”
166
  Letters of wishes come into 
play when property is intended to be distributed over time rather than 
outright, so appear most often in a trust context.  Such letters are seen as one 
way to add flexibility to irrevocable trust instruments without binding the 
fiduciary’s hands.
167
  Although not legally binding on the recipient, letters of 
                                                          
 166.  As suggested in the “Moneywatch” article referred to supra in notes 18–19 and the 
accompanying text, estate planners regularly recommend such letters, especially for the most 
substantial, longest lasting trusts.  In a survey conducted by Jeffrey Pennell for the American 
College of Trust & Estate Counsel (ACTEC), estate planners responded that settlors preferred a 
“letter of intent/wishes” over incentive provisions in the trust itself.  Jeffrey N. Pennell, The Joseph 
Trachtman Lecture—Estate Planning for the Next Generation(s) of Clients: It’s Not Your Father’s 
Buick, Anymore, 34 ACTEC L.J. 2, 31 (2008).  Although references to letters of wishes appear 
frequently in case law, their content unfortunately is rarely quoted or discussed.  See, e.g., Dexia 
Credit Local v. Rogan, 624 F. Supp. 2d 970, 973 (N.D. Ill. 2009) (“At the time the [irrevocable trust] 
was created, [settlor] submitted a ‘letter of wishes’ stating ‘[p]lease distribute all of the income of 
the Trust to me upon receipt by the Trustee.’”); United States v. Berscht, No. 04–098 JJF, 2008 WL 
523435, at *2 (D. Del. Feb. 25, 2008) (discussing evidence that defendant controlled Enron-related 
funds, such as “account opening forms and a letter of wishes from the Defendant instructing [the] 
Trust how to dispose of [Enron-related] assets in the event of the Defendant’s demise”); IFG 
Network Sec., Inc. v. King, 282 F. Supp. 2d 1344, 1346 (M.D. Fla. 2003) (“Although the trust 
agreement accorded [the Panamanian trustee] broad powers to invest trust assets, in a ‘Letter of 
Wishes for Trust’ the [settlor] indicated a desire to invest in government securities.”); Sec. & Exch. 
Comm’n v. Ballesteros Franco, 253 F. Supp. 2d 720, 723 (S.D.N.Y. 2003) (referring to various 
letters of wishes from settlor to trustees of two trusts delegating to settlor’s husband the “authority, 
acting alone, to issue investment instructions to the Trustees,” allowing settlor’s husband veto 
power, and designating trusts’ beneficiaries); Multi-Fin. Sec. Corp. v. Brown, No. Civ. A. 02-3828, 
2002 WL 32130291 (E.D. Pa. Dec. 20, 2002) (referring to  two “Letter of Wishes” documents); 
Estate of Obregon, 662 N.Y.S.2d 750, 751 (App. Div. 1997) (Settlor “then executed a Letter of 
Wishes directed to Private Bank, a non-binding instruction under the law of the Caymans given to 
assist trustees of discretionary trusts”), aff’d sub nom. In re Stern, 91 N.Y.2d 591, 696 N.E.2d 984 
(1998). 
 167.  Robert H. Sitkoff, An Agency Costs Theory of Trust Law, 89 CORNELL L. REV. 621, 670 
n.249 (2004); Charles D. Fox & Michael J. Huft, Asset Protection and Dynasty Trusts, 37 REAL 
PROP. PROB. & TR. J. 287, 300 (2002) (describing how a settlor can provide “nonbinding written 
guidelines to the trustee” through letters of wishes, which typically “cover the settlor’s intent with 
respect to the investment of the assets and the making of distributions to family members”).  Settlors 
and their advisors have created other mechanisms to achieve similar goals, most of which, like 
letters of wishes, arose in the offshore trust context.  See Sitkoff, supra, at 670 & n.249; see also 
JAMES WADHAM, WILLOUGHBY’S MISPLACED TRUST 141–54 (2d ed. 2002) (discussing letters of 
wishes in offshore context); Antony G.D. Duckworth, The Trust Offshore, 32 VAND. J. TRANSNAT’L 
L. 879, 910 (1999) (same); David Hayton, The Irreducible Core Content of Trusteeship, in TRENDS 
IN CONTEMPORARY TRUST LAW 47, 52–53 & n.35 (A.J. Oakley ed., 1996) (same).  Examples 
include: granting powers of appointment, see Jonathan G. Blattmachr, Kim Kamin & Jeffrey M. 
Bergman, Estate Planning’s Most Powerful Tool: Powers of Appointment Refreshed, Redefined, and 
Reexamined, 47 REAL PROP. TR. & EST. L.J. 529 (2013); using a quasi-fiduciary watchdog called a 
“trust protector,” see Philip J. Ruce, The Trustee and the Trust Protector: A Question of Fiduciary 
Power. Should a Trust Protector Be Held to a Fiduciary Standard?, 59 DRAKE L. REV. 67, 68 & n.1 
(2010); Stewart E. Sterk, Trust Protectors, Agency Costs, and Fiduciary Duty, 27 CARDOZO L. REV. 
2761, 2763 (2006); and including decanting provisions that allow the trustee to pour an old trust into 
a new one, see Christopher M. Reimer, International Trust Domestication: Migrating an Offshore 
Trust to a U.S. Jurisdiction, 25 QUINNIPIAC PROB. L.J. 170, 196–99 (2012); William R. Culp, Jr. & 
 
  
2014] LETTERS NON-TESTAMENTARY 617 
wishes allow writers to communicate their “cultural beliefs, values, and 
practices.”
168
 
Such last letters have been encouraged by practitioners but virtually 
ignored by scholars.
169
  Alexander Bove, in an excellent article published by 
the organization representing the scholarly arm of the trusts and estates bar, 
urges estate planners to encourage their clients to use such “non-binding 
written expression[s]” to indicate how she would “like to see the trustee 
exercise . . . discretion so that the administration of her trust will have a 
good chance of reflecting the manner in which the settlor herself would have 
administered it.”
170
  Moral and emotional accompaniments to a formal 
distribution scheme, these supplemental letters have an important role to 
play in the planning process. 
A. Why Writers Use the Letters Non-Testamentary Genre: A Qualitative 
Analysis 
This section examines letters from cases in which individuals chose the 
letters non-testamentary genre, even though they have already and otherwise 
arranged their legal affairs.  Because last letters are written to a specified 
individual who is not intended to reply, the communication is uniquely 
directed and focused.  The writers appear to understand that the genre offers 
                                                          
Briani Bennett Mellen, Trust Decanting: An Overview and Introduction to Creative Planning 
Opportunities, 45 REAL PROP. TR. & EST. L.J. 1, 46 (2010). 
 168.  Barton & Hall, supra note 89, at 1 (“[T]he writing of letters is embedded in particular 
social situations, and like all other types of literary objects and events the activity gains its meaning 
and significance from being situated in cultural beliefs, values, and practices.”). 
 169.  See Alexander A. Bove, Jr., Letters of Wishes, 145 TR. & EST. 46, 47 (Jan. 2006) (“[T]here 
is absolutely no mention of, reference to, or information on letters of wishes (to a trustee) in any of 
the trust treatises, reference works, reported cases or legal encyclopedias.  Furthermore, I could find 
no articles on the subject in any of the recognized U.S. professional legal journals or magazines.”).  
In contrast, inheritance scholars have examined and debated the utility of most of the other devices.  
See supra note 167; see also Gregory S. Alexander, Trust Protectors: Who Will Watch the 
Watchmen?, 27 CARDOZO L. REV. 2807 (2006) (discussing the utility of trust protectors); Richard C. 
Ausness, The Role of Trust Protectors in American Trust Law, 45 REAL PROP. EST. & TR. L.J. 319, 
338–40 (2010) (same); Alexander A. Bove, Jr., The Case Against the Trust Protector, 37 ACTEC 
L.J. 77, 91 (2011) (same); Melanie Leslie, Trusting Trustees: Fiduciary Duties and the Limits of 
Default Rules, 94 GEO. L.J. 67, 83 (2005) (same).  The only explanation for the lack of scholarly 
attention to “letters of wishes” is that these non-binding writings are seen as legally irrelevant.  See 
WADHAM, supra note 167, at 142–43; Duckworth, supra note 167, at 882; Hayton, supra note 167, 
at 73–76.  But this view is not entirely accurate, either in the eyes of the letter writers or the courts. 
See, e.g., Sec. & Exch. Comm’n v. Ballesteros Franco, 253 F. Supp. 2d 720, 723 (S.D.N.Y. 2003) 
(although individual was not a trustee and derived investment powers from non-binding “letters of 
wishes” and not formal trust instruments, court nevertheless refused to dismiss insider trading claim 
against trusts because complaint alleged that trusts were “dominated” by that individual).   
 170.  Bove, supra note 18, at 44. 
  
618  KANSAS LAW REVIEW [Vol. 62 
them an opportunity to convey their last wishes in a way that will be heard 
and remembered.  In fact, this simple and accessible genre allows the writers 
to confront death in a way that the standard dispositive instruments may not. 
Although the signature characteristic of a dispute involving a decedent’s 
property is the absence of the star witness, the law of evidence ordinarily 
does not impose special rules for admissibility in inheritance cases.
171
  To 
the contrary, even though these cases often pose a “worst evidence” 
problem,
172
 the rules governing what evidence is legally cognizable 
generally mirror the rules governing other civil claims involving, for 
example, contracts or property arrangements.
173
  Accordingly, last letters 
will not be admissible for the truth of their content
174
 but may be used by 
courts to resolve other issues in inheritance disputes by, for example, 
showing that a testator has or lacks capacity
175
 or clarifying the meaning of 
ambiguous provisions in the dispositive instrument
176
 or even, curiously, to 
                                                          
 171.  But see John C.P. Goldberg & Robert H. Sitkoff, Torts and Estates: Remedying Wrongful 
Interferences with Inheritances, 65 STAN. L. REV. 335, 378 (2013) (describing rule in inheritance 
cases that bars evidence from interested parties). 
 172.  See Goldberg & Sitkoff, supra note 171, at 344, 365 (describing how posthumous litigation 
involving a donor’s rights of disposition pose a “worst evidence” problem because the donor cannot 
“authenticate or clarify” her declarations and because it is difficult to find the “true intent of a 
deceased person”). 
 173.  In any will contest, testamentary documents govern, and extrinsic evidence is irrelevant 
unless there is a so-called “latent” (as opposed to a “patent”) ambiguity.  See, e g., Dozier v. Dozier, 
77 So. 700, 701 (Ala. 1918) (refusing to admit letter, written by testator at the same time as the will 
and enclosed in the same envelope, because “[t]here is no latent ambiguity in the will that the letter 
could serve to clear up”); Citizens’ & S. Nat’l Bank v. Clark, 158 S.E. 297 (Ga. 1931) (finding 
testator’s letter to trustees named in his will, indicating testator’s desires about property, 
inadmissible to show intention different from that expressed in the will); McKinsey v. 
Cullingsworth, 9 S.E.2d 315, 316 (Va. 1940) (“If the words and language of the testator are clear, 
the will needs no interpretation.  It speaks for itself.”).  A patent ambiguity appears just by reading a 
document, while a latent ambiguity exists when a document appears clear on its face but is 
ambiguous in fact.  Eckels v. Davis, 111 S.W.3d 687, 695 (Tex. App. 2003).  
 174.  See, e.g., Sylvester v. Newhall, 85 A.2d 378, 386 (N.H. 1952) (referring to “memorandum 
of wishes” that was found to be inadmissible by trial court “without examination”); Bajakian v. 
Erinakes, 880 A.2d 843, 846–48 (R.I. 2005) (upholding trial court’s ruling that statements of 
memory in a letter were inadmissible hearsay even though letter purported to explain basis for 
unequal treatment of children in will); Bickler v. Scully, 527 N.W.2d 399 (Wis. Ct. App. 1994) (per 
curiam) (unpublished decision affirming trial court’s determination that letter from father to trustee 
of trust holding jewelry, among other items, was inadmissible hearsay, because statement in letter 
that $5,000 broach was “worth more than all the other jewelry [in trust] put together” and that 
daughter who did not receive broach should “get the rest of the jewelry” lacked indicia of 
reliability). 
 175.  See cases cited in note 16 supra.  But see In re Hoffman’s Estate, 2 N.W.2d 442, 445 
(Mich. 1942) (finding that a series of letters between decedent and grandson, who was sole 
beneficiary of decedent’s will until decedent executed revocation days before her death, “might be 
considered, but not to establish the fact of [son’s] undue influence” in procuring that revocation).   
 176.  See cases cited in note 16 supra. 
  
2014] LETTERS NON-TESTAMENTARY 619 
bear upon the letter writer’s intent
177
 or feelings.
178
  Courts also frequently 
examine and discuss evidence that has been proffered—here, last letters—
before or without deciding the issue of whether that evidence is admissible 
in the first place.
179
  In short, case law provides a broad selection of raw 
material to be analyzed because homemade letters make frequent 
appearances, especially in older cases, even if they end up not being 
admissible or relevant.
180
 
One motivation that surfaces in these letters is a perception that 
including specific wishes, ideas, emotions, and explanations in formal 
documents will complicate or even undermine the probate process.
181
  This 
                                                          
 177.  See Lowenthal v. Rome, 471 A.2d 1102, 1114–15 (Md. Ct. Spec. App. 1984) (describing 
how lower court found testator’s letter to his brother explaining that his revised will “pertains to all 
my property in Spain which accordingly goes to you” to be “the single most important exhibit in 
evidence pertaining to the Decedent’s intent”); In re Briggs’ Estate, 134 S.E.2d 737, 741–42 (W. Va. 
1964) (“Where a will on its face appears to be in due form and in accordance with statutory 
requirements, the authorities are divided on the question whether parol or extrinsic evidence may be 
admitted on the question of the presence or the absence of testamentary intent.  On the other hand, 
the authorities are practically unanimous to the effect that if a writing is not in the usual form of a 
will, and if on its face it is ambiguous on the question of the presence or absence of testamentary 
intent, extrinsic evidence, including statements of the alleged testator, is admissible on that 
question.”).  Of course, arguably the most famous of such letters is the one that appears in Mutual 
Life Ins. Co. v. Hillmon, 145 U.S. 285 (1903), which gave rise to the hearsay exception for a 
“present intent to act.”  For a fascinating book that looks at the unique aspects of this famous letter, 
see MARIANNE WESSON, A DEATH AT CROOKED CREEK: THE CASE OF THE COWBOY, THE 
CIGARMAKER, AND THE LOVE LETTER (2013). 
 178.  See, e.g., Shulman v. Shulman, 193 A.2d 525, 529–30 (Conn. 1963) (because letter was 
properly authenticated, it was admissible for the purpose of showing the feelings of the testator 
toward the will contestants). 
 179.  See Rice v. Allen, 28 N.W.2d 91 (Mich. 1947) (reversing trial court’s application of 
constructive trust by relying on letter admitted into evidence because “where fraud is alleged, much 
latitude is allowed in the admission of circumstantial evidence” including “the letter and other 
testimony”); Deborah S. Gordon, Reflecting on the Language of Death, 34 SEATTLE U. L. REV. 379, 
410, 425–27 (2011) (discussing multiple cases); see also Burger v. Comm’r, 12 B.T.A. 1391, 1393 
(1928) (“It is also very doubtful whether the letter would be admissible, over objection, to show the 
testator’s intention . . . but inasmuch as it had been set out as a part of the petition, and the 
respondent has admitted the existence and finding of it and its terms as pleaded, it was apparently 
intended by the parties that we should consider it as a part of the case.”); Brown v. Tuckerman, 157 
N.E. 626, 627 (Mass. 1927) (“The letter was inadmissible in evidence had objection been made . . . 
[b]ut having been admitted without objection, it is to be weighed with the other evidence.”); In re 
Estate of Shepherd, 823 N.W.2d 523 (Wis. Ct. App. 2012) (allowing attorney’s testimony to 
determine whether surviving spouse effectively exercised power of appointment when surviving 
spouse’s will was silent as to exercise but predeceased spouse required there be specific mention of 
the power).  To the extent that letters are offered as homemade property dispositions, courts quote 
them at length as supra Part II demonstrates. 
 180.  Two other ways letters appear in case law is to direct how tangible personal property will 
be distributed, see Deal v. Huddleston, 702 S.W.2d 404, 406 (Ark. 1986), and to address decedent’s 
remains.  See Bennett v. Gibson, No. 385419, 1996 WL 532374, at *2 (Conn. Super. Ct. Sept. 11, 
1996).  
 181.  See, e.g., In re Sack’s Estate, 199 P.2d 420, 421–22 (Cal. Dist. Ct. App. 1948); In re 
 
  
620  KANSAS LAW REVIEW [Vol. 62 
advice may stem from attorneys, who advise clients to “to leave 
testamentary statements with their loved ones, out of the will, so as not to 
clutter the will with unnecessary features”
182
 or from the testator’s own idea 
about how the law operates. 
In Sack’s Estate, for example, nine days after executing a holographic 
will, the decedent wrote a letter addressed to his sister, which was 
subsequently found in the decedent’s safe deposit box.  Fearing that what he 
“exactly . . . wanted” would “complicate the will,” the decedent used the 
letter to explain that the will should “stand as written” but that the 
“simpl[e] . . . letter of instructions” should guide the “disposition of [his] 
estate.”
183
  Although the decedent left his “entire estate” to his sister “for 
obvious reasons,” he went on to instruct his sister as to limitations on her gift 
as follows: “[A]fter you have received the property I wish you would give a 
part to A and B and a larger share to my daughter if you consider her worthy 
of it.”
184
  The question with which the court wrestled was whether the last 
letter imposed any limitation on the gift to the sister.  If the decedent’s use of 
the word “wish” were interpreted to be a “request,” the letter would have no 
legal effect; if the language demonstrated the decedent’s intent to modify the 
gift, the sister would have fiduciary (although highly discretionary) 
obligations towards the decedent’s daughter.
185
  Ignoring the testator’s 
proffered concerns about not wanting to complicate the original document, 
the Sack court found the testator to have intended that the property pass to 
his sister absolutely and without restriction because “the terms of the gift in 
the will were explicit” but the “terms of the letter were qualified and 
uncertain.”
186
  The letter writer, for his part, was able to share his concerns 
                                                          
Loud’s Estate, 161 P.2d 49, 50, 53 (Cal. Dist. Ct. App. 1945).  Cf. Bennett, 1996 WL 532374, at *1 
(in dispute over decedent’s remains, describing how decedent, who was given option to sign will or 
non-binding letter, chose letter); Rice v. Allen, 28 N.W.2d 91, 92 (Mich. 1947) (decedent used a 
deed and “letter of wishes” rather than a will because, plaintiffs alleged, she “was advised by [her 
attorney] that it would be less expensive to convey her property” in this fashion). 
 182.  T.P. Schwartz, Testamentary Behavior: Issues and Evidence about Individuality, Altruism 
and Social Influences, 34 SOC. Q. 337, 347 (1993); see also Karen J. Sneddon, The Will as Personal 
Narrative, 20 ELDER L.J. 355, 407 (2013) [hereinafter Sneddon, Personal Narrative] (quoting 
FRANK GERD OPTON, DECEDENTS’ ESTATES, WILLS, AND TRUSTS IN THE U.S.A. 26 (1987)) (“One 
author stated, ‘[t]he law does not forbid such expressions of sentiment, nor does it require it.  It 
seems preferable to limit the contents of a Will to the cold facts.’”). 
 183.  In re Sack’s Estate, 199 P.2d 420, 421–22 (Cal. Dist. Ct. App. 1948). 
 184.  Id. (emphasis added). 
 185.  Id. at 423 (“The case thus presents the frequent one in which a testator leaves the estate to a 
devisee without restrictions but later ‘requests’ the devisee to make other disposition of part of the 
devise.”). 
 186.  Id.; see also McKinsey v. Cullingsworth, 9 S.E.2d 315, 316, 318 (Va. 1940) (finding 
August 29 letter to nephew stating “I want you to have my home and every thing [sic] and you and 
 
  
2014] LETTERS NON-TESTAMENTARY 621 
with his sister without tying her hands.  His choice of “utterance,”
187
 the 
simple and accessible homemade letter, provided him with the platform for 
communicating those desires. 
In re Loud’s Estate provides another example of a letter writer who 
sought to reach out to his recipients past the legal documents.
188
  Although 
the testator, a practicing attorney, drafted the will himself, the court did not 
hesitate to accept that document as a holograph, undoubtedly because the 
testator used recognizable will rhetoric and form, including separate articles 
that authorized payments of debts, named executors, bequeathed a specific 
sum of money, devised real property, and distributed the residuary estate.
189
  
The testator chose, however, to write a “further holographic instrument . . . 
bearing the same date as the will.”
190
  This “last letter” was addressed to the 
writer’s two brothers and told them that they had “both been good brothers 
and we have had a wonderful mother.  It all goes to have made life worth 
while.”
191
  Along with asking the brothers to have his “old ashes scattered to 
the four winds” or, upon objection, “do with my remains as you will.  After 
all it can’t make much difference to me,” the testator also asked the brothers 
to “see that Margaret,” the beneficiary of the cash bequest, received the 
money promptly because she had “been a good friend for a number of years 
and it is my hope and wish that she shall never be in want.”
192
  Offering this 
letter as a codicil, Margaret argued that the last letter established a trust by 
which the brothers were commanded to keep Margaret free from want.
193
  
The brothers responded that the letter’s language simply expressed the 
decedent’s hopes about his friend and so was non-binding.  The court agreed 
with the brothers, fearing that to read fiduciary obligations into this personal 
language would “create a precedent the dangers of which are too obvious to 
require comment.”
194
  Although the letter writer’s words to his siblings 
therefore did not alter their legal obligations towards Margaret, the 
homemade letter evinced the testator’s priorities, including his emotional 
connection to his family.  Chosen by a lawyer who knew that the letter 
                                                          
you take care of [niece] the best you can” to be a holographic will in favor of nephew and 
unrestricted by any obligations towards niece, notwithstanding letter written ten days earlier that 
“expressed an intention” to leave the same property to niece). 
 187.  See supra note 78 and accompanying text. 
 188.  161 P.2d 49 (Cal. Dist. Ct App. 1945). 
 189.  Id. at 50–51. 
 190.  Id. at 50. 
 191.  Id. at 50–51. 
 192.  Id.  
 193.  Id. at 51–52. 
 194.  Id. at 52.  
  
622  KANSAS LAW REVIEW [Vol. 62 
would have no binding effect, the humble writing allowed the testator to 
express how his life was made worthwhile through his relationships and 
bonded the writer to these family members. 
Like the Loud testator, the authors of many of the letters that appear in 
case law, although not explicit about their reasons for writing, end up 
providing private and emotional narratives to the recipients that shed light on 
the writers’ decisions about how they hoped their respective legacies would 
be handled.
195
  The testator in Russell v. Russell,
196
 for example, explained to 
his daughter that he had “worked hard all [his] life . . . to add to the wealth 
of this family with no compensation,” and the testator in Hecht v. Everett, 
addressed a “last letter” to his children, including his two living children and 
any posthumous offspring he hoped would be created through sperm he 
froze and bequeathed to girlfriend, to “leave you with something more than a 
dead enigma that was your father.”
197
  The expositions that appear regularly 
through letters non-testamentary add a rich and personal dimension to the 
lives the letter writers enjoyed and allow the specific recipients of those 
letters to understand fully how those lives were lived.
198
 
Choosing the genre, to accompany a more formal expression of 
testamentary intent, provides each letter writer with an opportunity to speak 
directly to her recipient about the plans she has made and, in that way, to 
build the recipient’s understanding and empathy.  Even (or especially) where 
the writer’s words are unusual, they provide a fuller picture to the recipients 
about what the writer was thinking as she anticipated her death.  Hecht again 
                                                          
 195.  See, for example, the letters quoted supra in footnotes 10, 12, and 42 and in text 
accompanying notes 42–48, 50–54, 63–69, and 77–78. 
 196.  197 S.W.3d 265, 269 (Tenn. Ct. App. 2005). 
 197.  20 Cal. Rptr. 2d 275, 277 (Cal. Ct. App. 1993).  The Hecht facts are particularly interesting 
not only because they involve the ownership of the decedent’s sperm after his death, but also 
because, in addition to the “last letter,” the decedent’s will contained a section that was called 
“Statement of Wishes” which set forth the decedent’s “intention” that “samples of my sperm will be 
stored at a sperm bank for the use of Deborah Ellen Hecht, should she so desire, it is my wish that, 
should [Hecht] become impregnated with my sperm, before or after my death, she disregard the 
wishes expressed in Paragraph 3 above [pertaining to disposition of decedent’s “diplomas and 
framed mementoes,”] to the extent that she wishes to preserve any or all of my mementoes and 
diplomas and the like for our future child or children.”  Id. at 276–77. 
 198.  See, e.g., In re Morey’s Estate, 82 P. 57, 59–61 (Cal. 1905) (describing last letter from wife 
to husband, stating that she wished him to be “first in all respects and plans, pleased, satisfied and 
always comfortably restful” and last letter from husband to his executors stating “I leave many dear 
friends whom I love and respect.  We hope to meet on the other side of the dark river.  Goodbye to 
all.”); see also McNeill v. McNeill, 87 S.W.2d 367, 367 (Ky. 1935) (describing typewritten but 
homemade letter to sister from decedent, which was denied probate for lack of testamentary 
formalities, as “replete with affection for the addressee, as well as all other members of the writers 
family”; the letter “also volunteered kindly and considerate advice,” “draws a picture of the writer,” 
and “revealed that hers had been a life of helpfulness and self-denial”). 
  
2014] LETTERS NON-TESTAMENTARY 623 
provides a potent example.  In his letter non-testamentary, Mr. Hecht shared 
childhood memories and family history with his children.
199
  He also used 
the letter to shed light on his decision to die, explaining that he wanted to 
end his life “like I have lived it -on my time, when and where I will, and 
while my life is still an object of self-sculpture-a personal creation with 
which I am still proud. In truth, death for me is not the opposite of life; it is a 
form of life’s punctuation.”
200
  The last letter provided his children, if not a 
court, with an understanding of his state of mind. 
Where a letter writer lacks confidence in how her formal property 
disposition will work, she may use a letter non-testamentary to bolster or 
explain her plan to the recipient, even if she does not intend to modify it.
201
  
This technique is precisely the one that Robert Kaufmann used when he 
wrote to his brothers to explain his will and ask that they respect it.  By 
using this more direct form of address, rather than a mediated legal structure, 
the letter writer may perceive herself to be more powerful and perhaps freer 
to invoke the recipient’s understanding and empathy.  Kaufmann’s letter did 
not necessarily indicate a lack of trust in the legal system but did show that 
Kaufmann reposed greater, albeit misplaced, trust in his brothers not to 
mount a challenge to the formal documents. 
Another reason writers appear to choose the letter non-testamentary 
genre to convey their last wishes is the writers’ frustration with existing 
legal rules.  Consider, for example, In re Benton’s Estate, in which the letter 
writer sought to avoid a “dangerous” situation and admonished the recipient, 
his brother, “Not a soul but yourself to know of the contents of this letter.”
202
  
The situation that the letter writer and ultimately the decedent feared and 
wished to avoid was his wife’s legal right, should she survive him, to elect to 
take a one-third outright share of the property he owned on death.
203
  The 
wife would then be free to use or pass on the property as she wished, 
including to the letter writer’s ill-favored stepson.
204
  Because “in no event 
                                                          
 199.  20 Cal. Rptr. 2d 275, 277 (Cal. Ct. App. 1993). 
 200.  Id. 
 201.  See, e.g., Estate of Robbins, 544 N.Y.S.2d 427, 429 (Sur. Ct. N.Y. Cnty. 1989) (observing 
purpose of letter written by the decedent to her son as “explain[ing] her motives in making the will 
and her somewhat bitter feelings towards her daughter”); Cornell v. Cornell, 334 A.2d 888, 891 & 
n.6 (Conn. 1973) (letter from testator to sister explaining that testator was only providing for wife as 
mandated by law and was “now leaving the house and all of the furnishings to you, not for her use.  I 
am leaving one-third of my estate in trust, she to have the income from same for her life & then the 
principal to you.  You will get more besides.”). 
 202.  84 N.E. 1026, 1027 (Ill. 1908). 
 203.  Id. at 1028. 
 204.  Id.  
  
624  KANSAS LAW REVIEW [Vol. 62 
was it the wish or desire of the decedent that the stepson should have any 
part of his estate,” he used a letter to “take[] his brother into his close 
confidence and tell[] him his secret thoughts and wishes” outside and apart 
from the existing testamentary documents.
205
  The Benton court used the 
letter as evidence that other gifts by the decedent were made in 
contemplation of death and therefore subject to inheritance tax; the letter, 
however, helps to show the decedent’s desire for privacy, his knowledge of 
inheritance law, and his trust in family which helped to reach his goal of 
“plac[ing] his estate . . . in the hands of those whom he desired to enjoy it 
after his death.”
206
 
A letter writer may also choose the informal genre because she hopes to 
avoid what she sees as a restriction on the use of formal documents, even if 
that restriction was self-imposed.  In Jackson v. Tibbling, for example, the 
plaintiff, a widow, refused to revise her will because she wanted to adhere to 
an agreement she had with her deceased husband not to change their 
reciprocal wills after the first death.
207
  Having no descendants, the widow 
planned to leave a piece of real property to her husband’s friend, should the 
friend survive her; if the widow outlived the friend, however, she wanted the 
property to pass to some distant relatives.
208
  Although the widow refused to 
make the formal change to her estate planning documents so as not to break 
the promise to her husband, she did not hesitate to deed the property to the 
friend, based on his return promise that he would leave it to her in his will, 
and to write a letter explaining that she had done so hoping that the friend 
and his wife “will make [my home] their home.”
209
  In other words, the 
widow saw the use of a letter non-testamentary as somehow morally 
distinguishable from changing her formal will.  When the friend instead left 
the property to his own family, the widow sued.  Finding that the friend 
breached his promise and shared a confidential relationship with the widow, 
the court imposed a constructive trust on the property for the widow’s 
benefit.
210
  Although the court did not specifically rely on the letter as 
evidence of the relationship that gave rise to the breach, the letter 
demonstrated the widow’s real wishes for her property and the trust she 
                                                          
 205.  Id.  
 206.  Id. at 1028; see also Hahn v. United States, 123 F. Supp. 767, 769–70 (S.D. Ohio 1954) 
(denying tax refund to daughter where recorded deeds showed transfer of mother’s real property to 
daughter but daughter’s letter written on recording date described ownership as a trust, reasoning 
that letter was “a mere self-serving declaration”). 
 207.  310 S.W.2d 909, 912 (Mo. 1958).   
 208.  Id.  
 209.  Id. at 913. 
 210.  Id. 
  
2014] LETTERS NON-TESTAMENTARY 625 
placed in the letter recipient notwithstanding her reluctance to include those 
wishes in a formal will.
211
  The simple form of the letter offered her a moral 
freedom that she could not find elsewhere.
212
 
B. Letters of Wishes 
One of the most interesting examples of the last letters genre is the so-
called “letter of wishes,” which is used primarily when property is to be 
distributed over time rather than simply upon the owner’s death.  Ordinarily, 
the vehicle to effectuate this arrangement is a trust.
213
  By conveying 
property in a trust, which is administered and distributed by one or more 
trustees rather than outright, the property owner places distributional 
discretion in a person, persons, or entity other than the beneficiaries.
214
  The 
choice of fiduciary and the guidance conferred on that fiduciary become 
important, especially when the trust is designed to be long-term rather than 
simply to last until a beneficiary reaches majority.  One challenge of a long-
term trust,
215
 though, is maintaining flexibility to deal with changed 
circumstances after the trust becomes irrevocable.
216
  From a drafting 
                                                          
 211.  Id. 
 212.  Informal letters have also played a role when the letter writer lacked the legal right to 
execute official documents.  A vivid and entertaining example of such letters is provided in 
Campbell v. Taul, 11 Tenn. 548, 551 (1832), an early nineteenth century case that involved a twenty-
one-year old female who died in childbirth, intestate; the decision explains “[a] will she could not 
make,” because the Married Women’s Property Act had not yet been passed.  Id. 
 213.  Thomas P. Gallanis, The New Direction of American Trust Law, 97 IOWA L. REV. 215, 217 
(2011) (“The most vivid definition of a trust is the one advanced by Oxford University professor 
Bernard Rudden, who explained that a trust is ‘essentially a gift, projected on the plane of time and 
so subjected to a management regime.’” (quoting John P. Dawson, Bernard Rudden, Gifts and 
Promises, 44 MOD. L. REV. 610, 610 (1981) (book review))). 
 214.  If the settlor of the trust, for example, wanted to leave all of her property to her descendants 
(children and their children) but did not want these (young, inexperienced) beneficiaries to have 
immediate access to it, interposing a trustee who can manage and distribute the property addresses 
the settlor’s concern about unbridled use and premature exhaustion of the funds.  Often beneficiaries 
serve as co-trustees, but are subject to fiduciary duties that would not apply if they held and managed 
the property outside the trust vehicle.  Although the settlor may play an active role in trust 
administration, by serving as trustee or retaining the right to change or revoke the trust, the law 
recognizes as a key point the time at which the settlor parts with dominion and control over the trust 
property, either on death or when the trust becomes irrevocable.  See Treas. Reg. § 25.2511-2(b) 
(1983) (gift is complete for transfer tax purposes when “donor has so parted with dominion and 
control as to leave in him no power to change its disposition, whether for his own benefit or for the 
benefit of another”). 
 215.  Professor Friedman provides a helpful characterization of such trusts as either “caretaker,” 
meaning that they are designed to terminate when the beneficiaries are able to care for themselves, 
and “dynastic,” meaning that the settlor’s primary motive is “to perpetuate and control the estate as 
long as possible.”  See FRIEDMAN, supra note 137, at 113. 
 216.  Charles D. Fox IV, How “Revocable” Is “Irrevocable”? Obtaining Flexibility in 
 
  
626  KANSAS LAW REVIEW [Vol. 62 
perspective, the less restrictive the trust instrument, the more leeway a 
trustee has to deal with unanticipated future circumstances; moreover, 
flexible investment and distribution standards mean less vulnerability to a 
claim by the beneficiary that the trustee misbehaved.  On the other hand, by 
reposing absolute discretion in a trustee, the property owner must “trust” that 
the fiduciary will get to know the beneficiaries and their needs and serve 
those beneficiaries appropriately over trust’s duration.
217
  Even leaving aside 
the so-called “dead hand” effect—that is, the property owner’s desire to 
control the future—real concerns arise, especially when an institutional 
trustee, like a professional trust company or a megabank, employs numerous 
trust officers to manage wealth for people with whom they have had little to 
no contact.
218
 
The “letter of wishes” is one way to strike a compromise between 
including explicit and binding preferences in the trust agreement, on the one 
hand, and allowing a trustee complete and absolute discretion, on the 
other.
219
  These letters non-testamentary give property owners a way to 
convey the stories and rationales underlying their planning to the letter 
recipients, their “trusted” designees.  A letter that supports this analysis is 
quoted at length in Edelman v. Merrill Lynch Bank and Trust Co.
220
  The 
Edelman case pitted the remaindermen of a trust established by their 
Argentine grandmother against the trust’s Cayman Islands trustee and New 
Jersey investment manager, alleging that the defendants had breached their 
fiduciary duties by making questionable asset allocations and investments 
that had eroded the trust’s value.
221
  Originally funded in 1992 with $3.5 
                                                          
Irrevocable Trusts, 33 OHIO N.U. L. REV. 943, 944 (2007) (“It is difficult if not impossible to 
address all of the possible changes that will occur during the existence of the trust.”). 
 217.  Richard C. Ausness, The Role of Trust Protectors in American Trust Law, 45 REAL PROP. 
TR. & EST. L.J. 319, 320 (2010) (“[V]esting greater powers and discretion in trustees can also 
increase the risk that a trustee will fail to carry out the settlor’s intent.”). 
 218.  Another mechanism for controlling trustee discretion is granting broad trustee removal 
rights either in the trust instrument or by statute, but even a permissive right of removal requires 
thought.  See Sitkoff, supra note 167, at 663–64 (“The difficulty, then, is setting the threshold for 
trustee removal high enough so that the trustee can carry out the settlor’s wishes (including the 
protection of future beneficiaries) in the teeth of a contrary preference of the current beneficiaries 
without setting it so high as in effect to sanction shirking or mismanagement.”). 
 219.  G. Warren Whitaker, Classic Issues in Family Succession Planning, 17 PROB. & PROP. 32, 
32, 37 (2003) (“If clients want to give specific instructions to future trustees regarding the 
management of the trust, they should be encouraged to do so in a nonbinding, precatory letter of 
wishes. . . .  In this way the client can satisfy his need to kibbitz and cajole from beyond the grave 
without robbing the fiduciary of discretion, as mandatory directions in the trust agreement would 
do.”). 
 220.  No. L-7233-06, 2009 WL 425906, at *1 (N.J. Super. Ct. App. Div. 2009) (per curiam). 
 221.  Id. at *2–4.  
  
2014] LETTERS NON-TESTAMENTARY 627 
million in liquid assets, the trust was governed by a document that directed 
the trustee to pay all income and discretionary principal to the settlor during 
her lifetime.  On the settlor’s death, the trustee had absolute discretion to 
make income and principal distributions to the settlor’s son and his wife; any 
property remaining on the death of the survivor of the son and his wife was 
to be distributed to the settlor’s grandchildren, the plaintiffs.
222
  Although the 
formal trust instrument did not contain additional or more specific directions 
about what was meant by the term “discretion,” the document specifically 
recognized that the trustee “would manage and invest the trust in accordance 
with any written instructions it might receive from [the settlor] or if it 
received none, as its sole discretion indicated” and “conveyed very broad 
powers upon defendant Bank with respect to investing and managing the 
trust assets.”
223
 
Revealed in the settlor’s separate letter to the trustee was the fact that 
the settlor’s son, Alberto, a scientist and physician, had suffered from 
paranoid schizophrenia for years, had never supported himself or his family, 
and would be unlikely to do so in the future.
224
  Written three years after 
signing the trust agreement, this guidance memorandum also expressed the 
settlor’s “concerns” and purposes for the trust and described to the trustee 
how she wanted the trust assets administered and distributed to effectuate 
those purposes.
225
  In other words, the letter set forth the settlor’s views on 
distributions, reasons, and investments.  For example, instead of the absolute 
discretion to distribute principal that the trust instrument contained, the letter 
explained the settlor’s desire that the income distributions to her son “be 
limited to thirty percent (30%) of the trust income” to serve her “wish that 
some of the capital eventually be distributed to Alberto’s children.”  The 
letter also asked the trustee to “take into consideration Alberto’s and his 
family’s other sources of income, their specific needs, and the need to 
maintain the trust for the long term period described herein,” and described 
how Alberto, although a “physician dedicated to clinical research,” had 
“never really had the responsibility of earning his own money for his 
support.”
226
  The settlor established the trust, her letter explained, so that 
“there may always be funds available for the maintenance and general 
welfare” of Alberto and his family.  The letter contained very specific 
instructions about distributions after Alberto’s death too, including that his 
                                                          
 222.  Id. at *1.  
 223.  Id. 
 224.  Id. at *1–2. 
 225.  Id. at *1. 
 226.  Id. at *2. 
  
628  KANSAS LAW REVIEW [Vol. 62 
wife, also a schizophrenic in treatment, was not to receive payments if she 
and her husband were estranged or divorced, and that Alberto’s children 
would receive outright distributions at ages twenty-five and thirty.
227
 
As a result of the settlor’s concerns that the trust last for a long time, the 
trustee had invested primarily in fixed-income securities which generated 
income but resulted in little growth to the trust corpus.
228
  Following the 
settlor’s death, the trustee and investment company diversified the fund but 
ultimately experienced a decline in value, which led to the lawsuit that found 
its way to the New Jersey Superior Court and was described in the appellate 
division’s 2009 unpublished per curiam opinion.
229
  Although the Edelman 
decision focuses primarily on whether the court had personal jurisdiction 
over the Cayman Islands trustee and whether New Jersey was the 
appropriate forum for suit,
230
 the non-binding last letter that the court quotes 
at length is useful as it provides insight into some of the purposes served by 
letters of wishes.  While the Edelman settlor gave the trustees absolute 
control in her formal trust, the letter indicates a very directed and specific 
purpose that motivated the settlor’s estate planning.  One might wonder why 
such information and direction was not included in the trust document if it 
motivated the settlor to create the trust, explained how to prioritize the 
competing beneficiaries’ interests, and justified the trustees in their 
investment decisions.  Certainly “absolute discretion” provides the trustees 
with even broader ambit; and yet that legal language, so valuable to protect 
the trustees from liability and to allow future flexibility, is somehow less 
complete until the letter is read as an accompaniment.  On the other hand, 
reading the letter makes clear how the settlor of the trust decided to face her 
approaching death and reconcile how her absence would affect the people 
for whom she had cared during her life: Alberto, his wife, their children.  
Both helpful in describing the writers’ purposes to a recipient and perplexing 
because those purposes were deliberately omitted from the binding 
documents, letters of wishes are just that: vehicles for letter writers to define 
their desires. 
No published case holds a trustee to a standard set forth in a letter of 
wishes and, to make sure this rule continues to hold, Bove and others who 
recommend their use also caution that the letters should be explicitly non-
                                                          
 227.  Id. at *1–2. 
 228.  Id. at *2. 
 229.  Id. at *3.  
 230.  The appellate court reversed the trial court’s dismissal of the motions to dismiss on 
jurisdictional and forum non conveniens grounds, finding that additional discovery was needed.  Id. 
at *10. 
  
2014] LETTERS NON-TESTAMENTARY 629 
binding.
231
  Letters of wishes, even in this quasi-legal, peripheral state, can 
be extremely useful, however.  Although they do not set the standard by 
which outsiders (courts or beneficiaries) evaluate trustee conduct, the letters 
nevertheless offer the writers a vehicle to communicate their purposes, 
goals, and rationales to those they “trust.”  The letters become the voice of 
the settlor after she is gone.  Like Kauffman and More, Mrs. Edelman used a 
letter non-testamentary to share with the trustee her frank views on what 
needed to be done to help her son’s family. 
V. CONCLUSION 
Property owners appear to understand that letters non-testamentary offer 
them a powerful way to convey their ideas about their impending deaths to 
specified recipients who will hear, understand, remember, and potentially 
effectuate those wishes.  The genre does not anticipate a reply, because the 
simple act of writing is a way to confront this impending separation.  And 
third parties—courts for example—are not relevant to this exchange, which 
is uniquely between writer and recipient. 
Testators may and sometimes do use their wills to “testify” about far 
more than simply who should receive property and in what amounts.  
Indeed, there is a growing body of scholarship documenting past narratives 
in formal wills and expressive potential for future formal documents.
232
  But 
in general, lawyer-drafted estate planning documents do not reflect that 
individuality, and much of the creativity comes from homemade wills that 
reflect individual voices.
233
 
A letter non-testamentary can serve multiple purposes for the writer.  
Rather than a pronouncement or a testimonial, a letter is intimate and 
humble.  At a moment when people cannot be together, letters bridge 
divides, not only between locations, but also between living and dying.  
Primarily a means of facilitating understanding and prolonging interaction, 
the genre is used by writers who are explicitly or implicitly navigating 
                                                          
 231.  While research on the actual use of these letters by practitioners is an area for further study, 
that “letters of wishes” have not given rise to litigation in the form of beneficiaries claiming that 
trustees abused their discretion supports the idea that the letters are an effective way to provide the 
settlor’s input without unduly constraining the trustees. 
 232.  E.g., Jane B. Baron, Intention, Interpretation, and Stories, 42 DUKE L.J. 630, 646 (1992); 
Gordon, supra note 179, at 410; Daphna Hacker, Soulless Wills, 35 L. & SOC. INQUIRY 957, 981 
(2010); Horton, supra note 28, at 78–85; Sneddon, Personal Narrative, supra note 182, at 369–409; 
Karen J. Sneddon, Speaking for the Dead: Voice in Last Wills and Testaments, 85 ST. JOHN’S L. 
REV. 683, 684–85 (2011).  
 233.  See, e.g., Hacker, supra note 232, at 975. 
  
630  KANSAS LAW REVIEW [Vol. 62 
perceptions about the restrictions that attend formal documents and finding 
liberation in the letter’s form.  As More faced his executioner, Koofi faced 
her war-torn Afghanistan, Kaufmann faced his metaphoric closet, and 
Edelman faced her child’s debilitating illness, each used a letter non-
testamentary to convey his or her unique vision to selected recipients.  Like 
letter writing, law is primarily a social and communal activity and 
endeavor,
234
 so it makes sense that letters are in some ways the law’s 
ancestors and companions.  Yet the genre remains unique, and its usefulness 
cannot be discounted, even as the law’s role in recognizing its value is not 
always clear or neatly described. 
Additionally, as messy as letters non-testamentary have been in the past, 
they are likely to continue to complicate inheritance law in the future, too.  
Just as the United States Post Office has announced its plan to reduce its 
services and outposts,
235
 classic letter writing seems old fashioned, outdated, 
and unworthy of much interest.  But people today are communicating with 
each other even more than ever, through online and digital forums.  
Consider, for example, the Facebook application called “If I Die,” which 
allows users to record a video that will go to designated recipients 
automatically once the speaker’s death is verified.
236
  One user referred to 
her “If I Die” recording as her “her last digital will and testament” and 
another praised the application as an opportunity for people to leave an 
“intimate video message for their kids . . . to tell them one last time how 
much they loved them.”
237
  Like the hand or typewritten letters of days gone 
by, it is only a matter of time until modern missives, in the forms of e-mail 
messages, Tweets, status updates, and texts, start to appear in inheritance 
law cases.
238
 
                                                          
 234.  As James Boyd White explains, law is a rhetorical endeavor that “is at once a social 
activity—a way of acting with others—and a cultural activity—a way of acting with a certain set of 
materials found in the culture.  It is always communal, both in the sense that it always takes place in 
a social context and in the sense that it is always constitutive of the community by which it works.”  
James Boyd White, Law As Rhetoric, Rhetoric As Law: The Arts of Cultural And Communal Life, 52 
U. CHI. L. REV. 684, 691 (1985).  He continues by observing that “the lawyer and the lawyer’s 
audience live in a world in which their language and community are not fixed and certain but fluid, 
constantly remade, as their possibilities and limits are tested.”  Id.  This fluidity means that “law is 
an art of persuasion that creates the objects of its persuasion, for it constitutes both the community 
and the culture it commends.”  Id.  
 235.   See, e.g., Ron Nixon, Trying to Stem Losses, Post Office Seeks to End Saturday Letter 
Delivery, N.Y. TIMES, Feb. 7, 2013, at A15. 
 236.  Marc Ellison, Now the Dead Can Send Facebook Messages Too, SALON (June 16, 2013, 
11:00 AM), http://www.salon.com/2013/06/16/if_i_die_facebook_app_erases_digital_footprint 
_post_ mortem_partner/. 
 237.  Id. 
 238.  See Crinquand, supra note 6, at 5 (describing the modern era as “a time when letters have 
 
  
2014] LETTERS NON-TESTAMENTARY 631 
To date, this field has been slow to acknowledge what role, if any, 
digital communications will play.
239
  As the modern equivalent of letters 
non-testamentary, these informal but intimate communications are likely to 
raise the same issues about testamentary impact and utility as the old-
fashioned writings have raised for hundreds of years.  And as years of cases 
show, even the most trifling and untraditional writings seep into and 
influence judicial decisions and, as importantly, property owners’ conduct.  
Understanding the tenacious human desire to communicate in writing about 
an impending separation and how this desire has intersected with traditional 
doctrine can prepare us to deal with the potential roles modern letters 
ultimately may play.  Moreover, by acknowledging the value in these 
communications but recognizing their corresponding limits, we can allow 
writers and recipients to reap the benefits of the genre while retaining the 
safe harbor that formal documents provide. 
 
                                                          
been superseded by e-mails, and diaries by blogs”). For articles about how various courts have 
opined on the effect of digital communications at death, see Brad Dicken, Judge Rules That a Will 
Written and Signed on Tablet is Legal, CHRONICLE-TELEGRAM, June 27, 2013, 
http://chronicle.northcoastnow.com/2013/06/25/judge-rules-will-written-signed-on-tablet-is-legal; 
Rae Wilson, Will done on iPhone before owner took his life ruled valid, DAILY EXAMINER, Nov. 7, 
2013, http://www.dailyexaminer.com.au/news/will-done-iphone-owner-took-his-life-ruled-
valid/2077241/; and SMS Not a Valid Last Will and Testament: Court, THE LOCAL: SWEDEN’S 
NEWS IN ENGLISH (Mar. 26, 2014), http://www.thelocal.se/20140224/sms-not-valid-last-will-and-
testament-court. 
 239.  See Gerry W. Beyer & Claire G. Hargrove, Digital Wills: Has the Time Come for Wills to 
Join the Digital Revolution?, 33 OHIO N.U. L. REV. 865, 881 (2007) (“Although our evidence law 
has evolved to recognize the value of both audio and video recordings, wills law in the United States 
has yet to accept a will created and stored by such electronic medium as satisfying the writing 
requirement.”); Christopher J. Caldwell, Should “E-Wills” Be Wills: Will Advances in Technology 
Be Recognized for Will Execution?, 63 U. PITT. L. REV. 467, 467 (2002) (“The law of wills has 
universally been slow to accept change.”); Joseph Karl Granta, Shattering and Moving Beyond the 
Guttenberg Paradigm: The Dawn of the Electronic Will, 42 U. MICH. J.L. REFORM 105, 110 (2008) 
(“[V]irtually all . . . states [other than Nevada] have refrained from statutorily allowing videotapes or 
other electronic media to substitute for a written will.  The result is that in our ‘digitized’ and 
“electronic” society where computers, PDA’s, and e-signatures rule the day, the judicial system is 
nonetheless called upon to determine what constitutes ‘writing’ and a ‘signature’ for purposes of 
wills statutes.”).  But see Scott S. Boddery, Electronic Wills: Drawing a Line in the Sand Against 
Their Validity, 47 REAL PROP. TR. & EST. L.J. 197, 198 (2012) (“Probate law—despite its 
historically protracted evolution—has recently experienced a push towards adopting the 
conveniences attendant to this electronic age.”); John A. Conte, Jr., Is the ‘Smartphone Will’ in Our 
Future? (Or Is It Already Here?), 208 N.J.L.J. 43, 43 (2012) (providing anecdotal evidence of 
difficulties associated with electronic wills and describing current trends in courts’ acceptance of the 
same); James W. Martin, I Want to Sign an Electronic Will, 55 No. 3 PRAC. LAW. 61 (June 2009) 
(describing growing effectiveness of electronic wills in multiple states).