You are here

53 U. Louisville L. Rev. 393 (2015)
Is It Time For Irrevocable Wills?
Alex M. Johnson, Jr*
Abstract
      Almost everyone knows that inter vivos trusts can be made revocable or irrevocable.1 And the reference to “inter vivos” as opposed to “testamentary” trusts is intentional. Testamentary trusts become effective only upon the death of the settlor by establishing a valid trust in his or her will and, as a result, are by definition irrevocable upon creation (the testator cannot die again nor can he or she undo his or her death to somehow later repudiate the creation of the trust). Hence, it is more precise to say that inter vivos and testamentary trusts may be made irrevocable, but only inter vivos trusts may be made revocable.       Compare, however, wills that become effective only upon the death of the testator. By definition and in every jurisdiction, wills are ambulatory documents and can always be revoked prior to death. Indeed, there is no way for a putative testator to make an irrevocable will, meaning that there is no legal method by which an individual can commit to execute a will that is going to be effective upon that individual’s death. In a legal regime that has as one of its primary goals the validation of the will maker’s freedom of testation or disposition, it is somewhat surprising that individuals have no option to commit their future selves to a will executed by their present self.
* James C. Slaughter Distinguished Professor of Law, University of Virginia Law School. I thank my Spring and Fall 2013 Trusts and Estates classes who spent several class hours discussing with me the pros and cons of irrevocable wills.