The Equitable Doctrine of Election III
Bill Long 12/9/05
Coming to Today
Now we are ready to see where the equitable doctrine of election is in our day and see if it has any meaning to it or can be improved. Let's use a 1995 case from Illinois, Williamson v. Williamson (657 NE2d 651), to illustrate the problem. As the court said:
"The sole issue in this case is whether the equitable doctrine of election applies to validate the devise of property which had been held by the testator and one of his children in joint tenancy and which the testator therefor had no right to devise."
Robert Williamson (Sr.) died in 1991. Before his death he held in joint tenancy with one of his sons (Joseph) some real estate. Thus, by operation of law, it would go in its entirety to Joseph at Robert's death. Yet Robert's will divided what he thought was his 2/3 share in the jointly-held property to his other five children (he believed that his son Joseph was entitled to 1/3 share of the jointly-held property). He then divided the rest of his property among the six children. Joseph received a check for $18,000, which he cashed, representing 1/6 share of the remaining assets of the will. But, he also knew that as a matter of law he should hold the entire real estate holdings which Robert had wanted all six children to share. Thus, Joseph wanted to receive both the $18,000 and the property in its entirety.
The common law doctrine of election described in the first of these essays, highlighted by the Latin maxim "quod approbo non reprobo," would have forced Joseph to make a decision. If he took under one provision of the will, he couldn't contest the other provisions. Thus, if he contested the property division, he couldn't have received the $18,000 in cash. Simple as that. But, Joseph argued that this was not the law. Indeed, there was a statute which required jointly-held property to vest in the other person once one of the joint tenants died. Why should he have to elect (choose) whether he wanted the property or the $18,000? As the court said, regarding Joseph's argument (actually it was Joseph's estate that was arguing by now, since he died in 1992):
"Joseph's estate argues, however, that the doctrine should not apply here because no Illinois court has ever ruled that it applies to property held in joint tenancy and that such a holding would be against the public policy of Illinois because it would allow a testator, contrary to statute, to abrogate the rights of a surviving joint tenant" (657 NE2d at 653).
In this case of first impression the court held that the equitable doctrine of election should not be extended to force a joint tenant to make an election when the testator has improperly devised property which he did not own (because it vested in the joint tenant). Thus, even though other courts had extended the doctrine of election in this way, Illinois decided not to do so. The court rested its holding on the intent of the testator.
"For example, in the case at bar, Robert Williamson, Sr. clearly intended that respondent share in the residue of his estate. But, if the doctrine is applied, respondent must sacrifice property he owns in order to keep the gift from the residue of the estate" (Id. at 655).
Reflecting on the Problem
But if we reflect for a moment on what Robert Sr. was trying to do with his will, we begin to see the intractability of the problem. At first, he had owned real estate in joint tenancy with his wife. They decided to bring one of the sons into the partnership, so that the property would just keep being passed on, without probate or tax repercussions. Thus, there were, at one time, 3 joint partners. When Robert's wife died, there were but two. Robert thought that he then owned 2/3 of the property. When he drew up his will, he wanted to bequeath what he thought was his 2/3 of the property to the five other children (he believed that Joseph "owned" 1/3 of it). He thought that he was doing all of this legally. Five children would split 2/3 of the property and Joseph, because he "owned" 1/3 interest as joint tenant, would get 1/3. Then, in the other portions of the will, the cash was divided equally among the six children. It seemed, if we were going to divine the "intent of the testator," that Robert was trying to divide the proceeds of his estate as equally as possible, without doing all kinds of complicated math. That was his intention.
The problem, hwoever, was that he had misunderstood the nature of a joint tenancy (where were the lawyers in all this? I smell a malpractice suit.), and all of the real property became Joseph's at Robert's death. The result is a very inequitable division of the property. Joseph not only gets all the real estate but cashes a big check to boot. The other five siblings only get the amount that Joseph got in his check. Joseph gets all the real estate. How can this be fair?
If a court wanted to honor the "intent" of the testator, it would have either tried to divide up the real estate or more evenly divide the cash amounts in the will. But courts are reluctant, for good reason, to get into rewriting wills.
Conclusion
Thus, the Illinois court did two things. It decided that the doctrine of election or "approbate not reprobate" did not apply in the case of a testator's devising jointly held property, but it didn't as it were "make equal" the portions of the beneficiaries. Is there any way out of the bind thus created? Crago, in the article cited in the first essay, would suggest the following statutory wording for legislatures to consider:
"Except where a contrary intention is shown, no election shall be held to arise from the purported disposition by will of property of which the testator had at the time of his death no power of disposition."
This suggestion would codify the decision of the Illinois court, and we can understand it perfectly. It would lead to clarity in judicial decision-making, even though it might not honor that most central of all principles for the law of trusts and estates: the intention of the testator. Dang, why don't they ever live long enough to be able to tell you their intent when the will is probated?
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