What We Leave Behind: Legacies and The Law of Wills - Part 1: History

Episode 1 cover

The following is a rough transcript of this podcast episode together with sources imbedded as links:

My name is Nathan Green, and I am a practicing lawyer.

This podcast is about a hidden side of the world and how tiny, seemingly inconsequential changes in it, fundamentally shape our societies. The law of wills determine the difference between us living in dystopian horrors where the wealthy control every inch of society, and the world we actually inhabit where wealth is dynamic and moves from person to person, family to family, society to society, as generations pass. You have surely heard the phrase “the rich get richer”. Do you believe it? -- Maybe you do, maybe you don’t. But you probably do not want to live in a world where the rich can use their wealth to get richer and richer and squeeze everyone below them into poverty and servitude. And you probably also recognize that being rich does tend to give advantages to people in terms of making even more money. Yet we don’t live in some kind of capitalist dystopia where the rich control everything, own everything, and the poor have no chance of success. Why don’t we? Why is it that the captains of industry of the late 1800’s and early 1900’s do not have families that today control the world? Where did the Ford’s go? Where did the vanderbilts go? Where did the carnagees go?

The answer is that under western estate law – even without the estate tax that is in the news so much - no matter how large the fortune, typically will law results in the fortune being redistributed to society within three generations, and the best part is – the system is designed to make that happen without anyone realizing it. Henry Ford’s descendants are well off, but it was a tiny detail of law that stopped them from owning the world.

This podcast is the first in a multi-part series on the law of wills. This one, the introduction, is going to focus on the history of wills because how we arrived at our current system is a fascinating topic to me and I hope that makes it fascinating to you.

In the second part you are going to hear about the rule against perpetuities and how it constantly is saving society. In the third part you will hear about some of the other social policy concerns that go into wills and you will hear a bit about the competing roles of the courts. In the final part of this series we are going to talk about some hypothetical will provisions designed to get around some of these old, and vitally important rules.

A word of warning. I am going to be talking about history, I am going to be talking about what the courts might do, I am going to be talking about the state of the law not just in Ontario Canada where I am a licenced lawyer, but around the world. Yet I’m not an academic or historian, I’m not a lawyer in those other jurisdictions, and I am not here to give legal advice. So, to be clear: This is not legal advice!



This is not legal advice

The information here in any form is for entertainment purposes only.

You should not rely on or take or fail to take any action based upon this information.

Never disregard professional legal advice or delay in seeking legal advice because of something you heard here.

This is not legal advice.

This is not legal advice.



You probably already know what a will is: a set of instructions for what happens to your stuff after you die. That sounds boring. And you know what the majority of people’s estates consist of five hundred bucks in a bank account and an apartment full of junky furnature that needs to be hauled to the dump. That is boring. But there is another side to this that goes to immortality, a legacy, something that you will be remembered by. A lot of people work hard their whole lives with the singular goal of leaving something to their children, making sure their children have the opportunities they never did. Other people expend their lives building a business that is meant to survive them and carry on forever performing a valuable service. There is a family in Japan that for 46 generations has owned and operated the same hotel, each generation improving on it and leaving it better than it was for the next. Whether it is a deliberate choice or not people spend their lives in the same way they would spend money and what they get in return is what the will deals with.

As we go through these topics I will keep coming back to that theme, immortality, and how, because that drive is different from other human needs and desires, the law of wills is unique compared to them.

I am going to argue that wills, as a branch of law, is the oldest. You would probably think that criminal law is older, as people have been doing terrible things to one another for eternity. You might even think that property law must be older as you need property to be able to pass it on in a will.

We have a very limited number of written records that go back more than twenty five hundred years, and what we have of those records is extremely fragmentary.

So how can I say that Will law is the oldest law? In part its because of what we think of the law as.

One side note: any time you let someone define a key term in an argument you are in trouble. I hope I am going to sell you on my definition of the law, but a lot of arguments you will hear in society are fake arguments based on a faulty definition of some key core concept.

Imagine the world three thousand years ago. You are the peasant of some king or strongman. Your property consists of exactly what that person says your property consists of. The criminal laws are whatever the king, emperor wants them to be from one moment to the next. As a peasant you might find from one day to the next you are in a different country without even realizing it, and certainly no one went to your village to explain the new legal order and criminal laws you will have to obey. But you already know what the rules are, they are the same as they have always been, “Whatever the local authority wants you to do, do it.”

This is actually a surprisingly simple rule to follow. Pay whatever is asked of you in taxes (and on the plus side no need to do returns), keep your mouth shut, and if you ever see anything you think might be of some interest to the powers that be, report it to them, and don’t do anything else that might require them to involve themselves such as disturbing the peace. The Russians have a saying “the nail that stands up gets hammered”. That’s basically all you need to know: justice is arbitrary, brutal, yet applied only when the ruler feels there is a need for it.

Imagine appearing before the famous and just King Soloman to ask for justice. If he said the solution to a dispute was to cut a living child into two halves what would your reactions be? A modern person with our understanding of laws would ask what kind of crazy law says you can cut kids in half, the idea is so outlandish to us that we would assume he was joking. But as an ancient peasant you wouldn’t say “Hold on, that is crazy, no one would ever order that. He’s joshing us.” To our ancestors that was a totally plausible order from a judge – even a well-regarded one. Justice was arbitrary, capricious, and based completely on the whims of the decision maker.

But we don’t consider that kind of system a legal order. What we think of as law, be it Will law, criminal law, or property law, is a set of rules that everyone, especially the government, follows.

If you want to be a cynic, you might say that laws are a set of rules that the government usually follows so long as it doesn’t have a reason not to. But even the cynics would likely agree that at its core the laws are a set of rules that are usually followed – even by the government because they have been written to give the public advanced guidance on what the government considers its best interests in certain situations. The point is that even for the cynic we have a system based on predictability.

What does this have to do with Wills? Because wills have to be predictable. When the king died it was vitally important to have a set of rules in place that were known in advance and generally respected, laws in other words. And, since the biggest rule was the will, the intent, of the king, the king’s will was a very important document to be treated in a legal manner. Today the primary rule courts apply to wills is to try and find the intent of the person who died.

So as soon as you have some kind of society, you immediately have a need for what we would understand to be true laws, regarding succession. That’s why I say it was the first law.

Now the historical records does show the Romans and Greeks with wills and set rules governing them, and interestingly the roman rules for wills seem like rules designed for rulers. For example a Roman will was not a written document, it had to be spoken in public in front of an assembly of people.

Two notes, first roman civilization spanned thousands of years. It is easy to think of it as a flash in the pan that happened about 2,000 years ago and that was that, but its laws did change over time, and I am talking about the oldest roman laws we know about. Second on my website www.thisisnotlegaladvice.com you will find a page for this podcast with links and references to my sources as well as a rough text transcript of this podcast.

Back to old roman wills that had to be spoken. If you imagined what a king would need to do to leave the kingdom behind you realize papers can be forged and most people are illiterate in any event. If the king makes a public pronouncement of intent that is locked in, no matter what. On the other hand if every merchant and such is making a will that way people are going to forget. The person needs to be important enough that people are going to remember that will for years and years.

When we start talking about going back further in time we have almost nothing to rely on, and so it is pure speculation, yet we do know there were kings, emperors, strong men, and those people needed a way to pass the kingdom on, regardless of whether there was any other kind of legal order in place and we know there were endless disputes as to who the “rightful” ruler was which is, on its face, an appeal to some kind of set of rules, laws.

One thing about will law that distinguishes it from other areas of law is that most branches of law have always had the same objective, and will law has changed. Take criminal law. Since the dawn of time we have always thought our next door neighbor was a jackass and bashing his head in with a rock would greatly improve our lives. Society has always tried to prevent that. Since time immemorial we have always wanted to own land (either individually or collectively as tribes, countries, empires) and property law has been about defining the boundaries of what we own and what we can do with it.

But over time what people have, generally, wanted to do with wills has changed. If you went back to Rome, sat someone down in his family’s mask room where casts of the faces of his dead relatives stretching back generations were displayed, and asked him what his estate objective was, he would say “the glory and honor of my family”. Romans cared about money, but honor for their family was really the important thing. Many great roman families would go into dreadful levels of debt to get public office or other positions of renown (and then use those positions to get enough money back to repay their debts). What can I say, it was a bad system that encouraged war and corruption. If you went to the middle ages and asked what the estate objectives were the answer would be to buy your way into heaven (though dressed up with a bit more religious respect than that). If you went to England in the 17 and 18 hundreds and asked that question of a lord you would get an answer that money is power and they wanted to concentrate their wealth into one heir who could advance the family’s power. And if you asked someone that question today the typical answer would be that they want to ensure their children have the best lives possible. For most people that means evenly dividing their estate between their kids. But Bill Gates isn’t going to leave his children his money saying “You’ve got to make sure they have a sense of their own ability and what they’re going to go and do.”

If you sat down Bill Gates, a rich man from the middle ages, a 18th century lord, and a Roman in a room to discuss their estate plans they would all think everyone else there was certifiably insane, short sighted, or stupid.

This change in our objectives with wills also brought with it a change in the law around wills. Your typical law school is going to pick up the thread of will law in the English laws of the 1800’s. It was a great time because it was an intersection of hyper religious times, a very Dickensian and brutal view of wealth and power, and a modern impulse towards taking care of your children.

For example you could have a case where there was some rich lord with three children. He has a first born male heir, a middle child, a son, and a daughter who wants to become a nun. Hi concern was to ensure the position and status of their family and money was power to them. So his will would leave everything to his eldest son. But what if the son died before him or at the same time? So he sets up the second son as the back up beneficiary. But what if both his sons die? Say there is an illness that kills all three and only the daughter survives. Nuns take a vow of poverty, they cannot own property so he can’t leave the fortune to her unless he wants to see her give it away. So he sets up a trust where his daughter is the beneficiary for her life, and if she happens to have a male child one day, that child gets everything. What happens when he dies though? The middle child, a man from a rich family, gets nothing. That is a pretty bitter pill for the middle son, and the courts to swallow. And what if the daughter actually does inheret and the money goes into a trust for her. She decides she doesn’t want to be a nun, marries, and has three daughters, but no sons. Her husband is going to need a dowry for those girls to get married and challenging his wife’s trust seems like a pretty good way of doing it.

And, you may have noticed, you may have not, what about this guy’s wife? Is she supposed to live off the charity of her child? What if her first born son doesn’t like her, what if *gasp* she is the rich lord’s second wife and the son is not biologically her’s.

So there was a lot of conflicting values. In later podcasts in this series we are going to explore how the courts dealt with some of those conflicts, but the theme, the argument will be that there is some kind of judicial attempt over a long enough period of time to find ways to deal with conflicts in a way the court sees as fair.

Any time we talk about old common law, and the development of law we have to remember to keep our modern biases in mind. Common law evolves in a Darwinian manner where a rule is tried, and if it works well it is kept and improved on, and if it works poorly it is changed and a new attempt made. The result is that what we have today is the genesis of thousands of years of trial and error and it is far too easy to have grown up in a world with the wheel, and look back at a society that used sleighs and ask “why didn’t you just have wheels!” The law’s evolution is a technological evolution.

For example Roman wills conveyed only the property the person had when the will was made. If they bought a house after making the will, the will wouldn’t, couldn’t, deal with that new house. Obviously this is inferior to a will that can deal with property as it stands at the time of death. This seems perfectly obvious to us, just as it might be perfectly obvious to us that a knife, fork, and spoon are all extremely useful utensils – but someone had to invent them. Someone had to make the case for a fork in an age where everyone had grown up, and had been eating their whole lives, without forks. And by the way that person was Byzantine princess, Theodora Anna Doukaina who brought the fork to the western world and had some very nasty things said about her in the process. There are a lot of old legal rules that you can’t help but ask “why not just do it the way we do?” To which the answer is that they just hadn’t figured it out yet.

Our ancestors in two thousand years from now are going to look back on us and ask why we didn’t just think to X, Y, of Z, and the person who does think of that simply, and obvious in retrospect, X, Y or Z is going to be a billionaire.

In any even these ancient rules did change over the course of time. An evolution over thousands of years.

But one of the reasons that the law of wills is so interesting is that many other areas of law are on evolutionary paths controlled by economics or innate human ideas about fairness. The law of wills rests much more firmly in the hands of judges and legislators to shape society into whatever they desire it to be.

Consider this: murder, rape, theft, all have to be illegal. It doesn’t matter how much power you have as a ruler, president, king, queen, you try to have a society that doesn’t prohibit those things and you will not have a society. Most likely the people will rise up against you and remove you, but if you manage to hold onto power despite the will of the people, your society will simply crumble under you and you will be left the king of a wasteland.

Other laws are forced upon us as well. You have to have enforceable contracts and property rights. If you don’t have those things and another country does that other country will become wealthy, their wealth will turn into military power, and they will either conquer you, or your people will see what a good life is being enjoyed in this other country and demand change leading to revolt, emigration, and either societal change or collapse. Look at Venezuela today. You simply cannot exist as the country with an inferior economic system compared to your neighbors.

But what about wills?

Let me ask you. If you were the king of America and your number 1 issue was to make the country a fair place, what would you do? If you asked me that question on the day I graduated from law school I would have said that my number 1 issue would be dealing with the war on drugs and the massive social problems that iron fisted prohibition had created. I would have also talked about the income tax system, and the terrible state of urban schools.

But consider this, in the United States the average black person has saved $19,000 to pass on to their relatives when they die and the average white person has saved $130,000. When you inherit 19,000 you spend it. You pay off your bills, you repair your car, maybe you go on a vacation. When you inherit 130,000 you pay off your mortgage, you buy stocks, you invest it to be grown. If we just allowed this difference in inheritance to continue it would snowball forever and in a hundred generations whites would have not only that extra money, but the interest on that money over that whole time. And that is nickel and dime stuff in the greater scheme of things. What about the so called 1%ers who might pass on millions or billions to their children?

If wills are about immortality, are we immortalizing the unfairness of our system for the future? Do we want the intentions of some 15th century religious fanatic to carry on perpetually to today?

In the next podcast in this series we are going to explore the common law rule most responsible for us not living in a world completely owned and operated by the 1% - the rule against perpetuities. In the third segment we will talk about public policy in the law of wills and in the fourth we are going to imagine some hypothetics that try to bypass those rules. My very civilized wife called these my horribly uncivilized ideas.

I hope you have enjoyed this podcast and you listen to the next in this series but, more than anything else, please remember that This is not legal advice.