• Electronic Wills in North Carolina

    North Carolina has not yet adopted electronic wills. Senate Bill 307, introduced in March 2023, would have enacted the Uniform Electronic Wills Act in 2025 but died in committee. For now, wills in North Carolina still require physical signatures and witnesses.

    Some states, like Colorado and North Dakota, have adopted the Uniform Act, while others, like Florida and Indiana, have created their own versions. Meanwhile, New Hampshire and Oregon explicitly prohibit electronic wills.

    In Models of Electronic-Will Legislation, 56 Real Prop. Tr. & Est. L.J. 121 (2021), Adam J. Hirsch argues that states should experiment with different legislative models rather than adopt uniform laws. Given North Carolina’s move toward remote notarization, it seems likely the state will revisit electronic wills, but what approach it will take remains uncertain.

  • Culture Note: Mickey 17

    Interesting latest movie by Bong Joon Ho. Robert Pattinson plays a clone on a distant planet, raising classic questions about identity, class exploitation, and the ethics of cloning, somewhat in the spirit of Parasite. The identity problem nods to Derek Parfit (and ship of Theseus): what exactly makes Mickey 17 different from Mickey 18? What makes a “Mickey” at all? If each version differs slightly, at what point do we stop calling it the same person (Mickey)?

    On the surface, the film critiques cloning and exploitation, showing how artificial representations of human existence can devalue human dignity. But a Straussian reading suggests the opposite: Mickey chose this. He volunteered, presumably was paid, and his participation led to vaccines that allowed human expansion across planets. The movie doesn’t go into detail of why people are leaving Earth, but perhaps these vaccines were critical to survival? Mickey never fully rebels against cloning itself, suggesting, perhaps, that artificial representations of humans might be necessary for survival of the species.

    Some interesting takeaways for the future of AI-human interaction. Good movie.

  • Recent Article: Last Will & Testament of King Edward VI

    I did not know this story, but William Kelleher and Christina Smith have a fantastic article in the January/February 2025 issue of Probate & Property titled “My Lady Jane, a King’s Will, and Undue Influence on a Testamentary Instrument” about King Edward VI’s Devise for the Succession, a controversial document signed shortly before his death in 1553.

    Determined to preserve the Protestant Reformation, Edward sought to prevent his Catholic half-sister Mary from inheriting the throne, and just weeks before his death at age 16, he named his cousin, Lady Jane Grey, as his heir. However, Jane reigned for only nine days before being deposed by Mary I. Given recent historical analysis, the Devise might not have been considered valid under modern legal standards, not only due to Edward’s minority but also because of potential undue influence by John Dudley, Duke of Northumberland, who had much to gain politically. This story was recently fictionalized in the Amazon Prime series My Lady Jane, though I have not seen the show. Interesting history.

  • January 2025 Digest

    The end of 2024 brought several noteworthy developments in North Carolina’s estate planning and probate law, particularly regarding undue influence and posthumously conceived children. In this digest, I’ll summarize recent North Carolina Court of Appeals cases and share a brief review of two newly published law books.

    Recent North Carolina Caselaw

    • In re: Hobbs (No. 24-301, Unpublished, December 31, 2024)
      • Summary: Decedent executed a new Will leaving all property to one child, deviating from a previous Will that divided assets equally among five children. This one child also held a fiduciary position (agent under a power of attorney).
      • Key Takeaways:
        • Fiduciary Presumption: When a fiduciary benefits from a new Will, there may be a presumption of undue influence. Such presumption can be overcome.
        • Relevant Evidence: Courts may consider post-execution events (including photographs) as evidence to determine the presence of undue influence at the time of signing.
    • Abitol v. Clark (No. 24-478, December 3, 2024)
      • Summary: I previously discussed this case here. This case involved a decedent who had an estate plan for his only child at the time, but a second child was posthumously conceived. The dispute revolved around whether the second child was entitled to inherit under the existing estate documents and relevant statutes.
      • Key Takeaways:
        • Importance of Defining “Children”: Estate planning documents should explicitly define key terms like “children” to avoid future confusion.
        • Legislative Gaps: The legislature may need to address inheritance rights more thoroughly for posthumously conceived heirs.

    Recently Published Books

  • The Legal Puzzle of Daniel and the Lion’s Den

    The story of Daniel and the lion’s den often focuses on Daniel’s faith in God. But an interesting and less explored aspect of the story is King Darius’s conception of law. At the heart of the story lies a puzzling question: Why didn’t Darius revoke his decree when he realized it would condemn Daniel?

    Legal Theories: Command vs. Social Rules

    In modern legal philosophy, two major theories offer insight into this puzzle. John Austin’s Command Theory of Law holds that law is simply whatever the sovereign decrees. By contrast, H.L.A. Hart’s theory suggests that law is more than simple commands; it serves as a system of rules embedded in social practices, guiding behavior predictably.

    King Darius’s Legal Dilemma

    Darius decreed that anyone praying to another god would be thrown into the lion’s den, a decree that “could not be changed, according to the law of the Medes and the Persians.” Yet when he realized Daniel’s fate, Darius tried all day to save Daniel. If Darius wanted to save Daniel, why didn’t he simply issue a new decree revoking the old one?

    One explanation lies in the social constraints of law. If a king reversed his decrees too often, it could undermine respect for the law and the king’s authority. This principle of irrevocability may have served to preserve the authority of the king and the stability of the legal system. This suggests Darius may have viewed law through Hart’s lens, as more than just a sovereign’s command.

    Contradictions in Darius’s Actions

    After Daniel survives the lion’s den, Darius issues a second decree, commanding reverence for Daniel’s God. Isn’t this arguably a reversal of his earlier decree? Daniel presumably will no longer be thrown into the lion’s den when he prays. If Darius believes he could issue this second decree, why didn’t he do so earlier to save Daniel?

    This possible contradiction suggests that Darius switched back and forth between these two views of law. At first, he acted as if constrained by Hart’s notion of law as a stable, socially embedded system. Later, he embraced Austin’s idea of “law as whatever the king commands.”

    Conclusion

    The story of Darius and Daniel reveals a common debate in legal philosophy about the nature of law. Arguably, King Darius switches back and forth between differing conceptions. The story of Darius and Daniel challenges us to reconsider our own notions of law. Is law simply the command of authority, or does it derive legitimacy from deeper principles such as justice and stability?

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