Probate-Error Costs

Mark Glover

Document Type

Article

Abstract

Because a will's authenticity is never certain, courts sometimes make incorrect determinations regarding whether a purported will is a genuine expression of the decedent's intent. When the court incorrectly admits an inauthentic will to probate, a false-positive outcome occurs. Conversely, when the court incorrectly denies probate of an authentic will, a falsenegative outcome occurs. Because false-positive outcomes grant probate of inauthentic wills and false-negative outcomes deny probate of authentic wills, both can be characterized as "probate errors. Probate errors are inevitable, and consequently policymakers must decide how to balance the risk of false-positive outcomes and falsenegative outcomes. With the aim of aiding policymakers in this decision, this Article uses decision theory to systematically analyze how the risk of probate errors should be balanced. Decision theory suggests that, to identify the proper goal of a decision-making process, one must compare the error costs of false-positive outcomes and false-negative outcomes. If error costs are symmetric, then the decision-making process should be designed to minimize the total risk of error. However, if error costs are asymmetric, then the decision-making process should be designed to minimize the more costly type of error. This Article argues that probate-error costs were previously asymmetric, with false-positive outcomes being more costly than falsenegative outcomes. It therefore explains why the law's conventional method of will authentication minimizes the risk offalse-positive outcomes at the expense of an increased risk of false-negative outcomes. More importantly, it argues that probate-error costs have changed so that they are now more symmetric. The recognition of this shift suggests that the goal of will authentication should be increased accuracy and therefore that reform of the conventional law is needed.

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