No abstract

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An ageing population combined with decades of economic growth has correlated with a rise in inheritance disputes. While many of these disputes involve wills, non‐probate instruments known as ‘will substitutes’ that operate during the donor's lifetime but also transfer specific assets upon death are playing a significant role. To date, the academic literature has not adequately addressed how undue influence claims against will substitutes have been, or should be, resolved. Our case survey reveals two distinct doctrinal approaches taken by the English courts to resolve these claims. The first approach treats will substitutes as estate‐planning instruments on par with wills; the second focuses on the lifetime operations of will substitutes. We argue that the first ‘testamentary’ approach is preferred to the second ‘lifetime’ approach. The testamentary approach not only better promotes testamentary intent and respects relational norms, it also decreases the risk of discrimination and paternalism against elderly people.

We model civil litigation as a simultaneous contest between a plaintiff and a defendant who have monetary and emotional preferences. The litigants’ emotional variables capture a non-monetary joy of winning and relational emotions toward each other. A contest success function (CSF) describes the litigants’ respective probabilities of success based on their endogenous litigation expenses and exogenous relative advantages. The model does not specify a functional form for the CSF. Instead, it accommodates any CSF that satisfies general and intuitive assumptions, which capture frequently-used functional forms. A cost-shifting rule allows the winner to recover an exogenous proportion of her litigation expenses from the loser. There exists a unique Nash equilibrium with positive expenses. In equilibrium, negative relational emotions (but not a positive joy of winning) amplify the effects of cost shifting, and vice versa. Thus negative relational emotions and positive cost shifting have a similar strategic role, and one can be a substitute for the other. If the litigants’ relative advantages are sufficiently balanced, then more cost shifting (or more negative relational emotions) increases total expenses in equilibrium.