Clifton D Bryant & William E Snizek. Handbook of Death and Dying. Editor: Clifton D Bryant. Volume 2. Thousand Oaks, CA: Sage Reference, 2003.
The will is a source of public information that offers an accurate estimate of the value of an estate and hence of socioeconomic status, provides genealogical and kinship insights, and offers sociometric preference information concerning the family or kinship group. It may disclose the personality or attitudes of the deceased, dramatically benefit the heirs, and impose special obligations on those receiving material legacies. Finally, the very presence or absence of a will speaks indirectly to the social class, life style, and values of the deceased.
The ubiquitousness of death dramatically interrupts the process of ownership and culturally mandates the institutionalization of efficacious procedures for the destruction, orderly transfer, or legally approved distribution of the goods and properties of the deceased. Thus, within our society, individuals prior to their deaths are socially empowered to specify the recipients and the conditions of receipt of their possessions through a testamentary disposition. When such a testamentary disposition is written and of legal form it is referred to as a “will.”
While numerous sociologists, including the authors of texts on research methods, have long recognized the importance and utility of employing secondary sources in the conduct of sociological research, the last will and testament appears to be the single most neglected document in sociological research.
People, Property, and Death
Death everywhere dramatically interrupts individual property ownership and utilization. Inasmuch as property, whether material or nonmaterial, invokes a network of social relationships and bestows various responsibilities and prerogatives upon different persons in this relationship web, it frequently constitutes a cohesive element in the social system. Ownership rights are in turn delimited by socially imposed obligations and often result in stabilized-status relationships, along with institutionalized interactional patterns. The fabric of social relationships engendered by property not only encompasses individuals contemporary to the social system but may invoke conjugal or other collateral kin ties, as well as cross generational lines, and might on occasions also include the dead and the not yet born. Even “individual” property, in a sense, involves corporate interest and concern. The ownership of a given item or parcel of property may, for example, constitute an obligation of stewardship bridging several generations.
Since death terminates property stewardship, many societies make deliberate contingency arrangements concerning the goods and the property left by the deceased; they institutionalize efficacious procedures for the disposition, orderly transfer, or socially equitable distribution of such goods and property. Failure to establish such procedures rigidly could easily result in controversy over the property and competition, if not conflict, to determine its new ownership or disposition. Such an eventuality would clearly be disruptive to the social enterprise, and the unnecessary rivalry might be dysfunctional to the viability of the family or kinship unit as a cohesive social system. There may additionally be an overriding concern that the property itself continue in productive use for the common good with minimal interruption, hence the requisite need for some structured or institutionalized mechanism whereby a chain of ownership may be legitimized.
In some instances, appropriate arrangements for this property contingency of death are dictated specifically, as well as generally, by the society or social group as a whole. Dispositional variations include the destruction of the deceased’s personal property, burning being a popular mode. In other instances, particularly among persons of exceptionally high status, in times past, personal property was often interred with the deceased. In other societies, elaborate distribution systems for the real and personal property of the deceased have existed which may permit even distant kinsmen to acquire ownership of a small portion of the estate. In a few societies even a single head of livestock might be butchered and various specific cuts of meat apportioned onto different relatives in a rigidly prescribed distribution pattern. Among primitive peoples, spouses do not generally inherit through such an arrangement, but rather the property tends to be distributed along kinship and clan lines (Hoebel 1966:433).
In other cultural settings the general framework for the disposition of the deceased’s property are determined by the group, but within this framework, the individual, prior to his or her death, may be socially empowered to specify recipients and conditions of receipt. Such an arrangement, termed testamentary disposition (Hoebel 1966:432-33), is subject to great variations of applicability in regard to property and recipients, as well as of conditions and circumstances that dictate the so-called rules of inheritance. Testamentary disposition may be oral and informal or written and formalistic. On latter occasions, it is called “making a will.” Hoebel (1966:) has asserted that “the power of testamentary disposition probably exists in most primitive societies, although this matter has not been subjected to systematic investigation” (p. 432). It would appear, however, that the practice of making a will is more common in modern than in folk or primitive societies.
Today in the United States, testamentary disposition is not without limitations. The testator may not easily disinherit children, spouse, or other heirs; at least the surviving spouse is protected from disinheritance in most states. The so-called interests or rights or dower, or “curtsey,” provide that each spouse has an “estate” in the real property of the other and that some portion of this estate continues after the death of the other and is guaranteed against sale, gift, or other conveyance by the other before death without the consent of the spouse. Beyond the guarantees of dower and curtsey, a great many variations of prerogatives and constraints, in regard to inheritance and disinheritance, exist depending on the particular state.
Rheinstein (1947:375-390) suggests that in general, statutory legislation in the various states tend to follow distinctive legal strands. The tradition of English common law fostered liberal prerogatives on disinheritance, although some states have adopted community property arrangements which vest both spouses with joint ownership of property during life and thus ensure an indefeasible share in such property to the surviving spouse upon the death of the other. The laws of Louisiana, which grew out of the French Napoleonic Code, ensure a larger guaranteed portion of the estate to the surviving spouse, children, or even in some instances surviving parents, than is the instance in other states. The Territory of Puerto Rico also does not derive its inheritance laws from common law. In addition to the general inheritance laws in every state, other kinds of legislation, such as homestead laws, serve to delimit the prerogatives of testator in regard to heirs. Similarly, the testator is often further constrained in terms of conditions and circumstances of his or her testamentary disposition.
Rheinstein (1947) also points out that “nowhere is a testamentary provision valid where its enforcement would be shocking to public morals” (Pp. 375-390). Nevertheless, in our society, in spite of legislative regulation and a labyrinth of legal constraints, not to mention religious and social constraints, pressures, and customs, individuals possesses much latitude and discretionary prerogatives in determining during their lifetime, their desires for the disposition, distribution, or transfer of their personal and real property upon death. For the most part, one can die secure in the knowledge that his or her wishes, regardless of their singularity or idiosyncratic persuasion, may well be effected and enforced after his or her demise, as a result of the institutionalized mechanism of that most unusual and significant personal document, the last will and testament.
The Singular Nature of Wills as Social Documents
Although the last will and testament is, as we shall see, interesting in its sociological function and research potential, it is also absorbing in the unusual variation of its form, content, and intent. As noted by Menchin (1963), Farmer (1968), and others, wills have assumed almost every conceivable size and shape. They have, for example, been written on bridge score cards, pages of cook books, hospital charts, dance invitations, a petticoat, an empty eggshell, the fender of a tractor, and even the white-washed wall of a jail cell. The longest will ever probated ran to four volumes and 1,066 pages (copies of the will cost $400), and the smallest on record consisted of three words, “All to Mother,” scratched on the identification disc of a British soldier in letters so tiny that a microscope was needed to read the message.
As a general rule, spouses, offspring, relatives, and kinsmen are named as heirs in wills. Yet, upon occasion, many other types of heirs have been named, sometimes to the exclusion of family and kin. Included here have been dogs, cats, and assorted other animals, museums, schools, hospitals, cities, different charities, showgirls, under-privileged groups, and in some instances complete strangers (who might perhaps have to compete for their legacy in some way). One Englishman, for example, left funds to pay for a group of Irishmen to be assembled at his graveside each year on the anniversary of his death. The Irishmen, so assembled, were to be supplied with liquor and weapons, and would, therefore, he believed, become drunk and violent, destroying each other, thereby assisting in the worthwhile process (as he saw it) of exterminating the Irish race.
In certain instances, wills have been used to extract all manner of bargains and arrangements from heirs. Some wills have conditioned legacies on the cutting of hair, beards, and moustaches. Other wills have dictated the choice of residence, school, occupation, hobby, attire, and even spouses. Such conditional, or in some cases vindictive, wills would seem especially to often involve spouses. The poet Heinrich Heine, for example, left all of his fortune to his wife, but only on condition that she remarry. He conditioned his bequest in that fashion, so he said, in order that “then there will be at least one man to regret my death” (Menchin 1963:79).
Wills have been known to leave as legacies, lands, livestock, slaves, personal property of value, and often personal property of no value, save sentimental. Also left have been poems, letters, songs, recipes, debts, advice, patents, refreshments for the wake, expressions of love and hate, and not infrequently, various manifestations of the beauty of nature as enjoyed by the deceased such as birds, trees, scenery, and so on.
The Sociological Significance of the Will
Among other things, the will may be viewed as an institutionalized patterned device for affecting one’s purposes against the grain of traditionalized family and kinship obligations. In the absence of the will, the individual has little or no prerogatives in regard to his or her property after death. Thus the will allows one to modify the rigid rules of descent and to exercise individual intent in economic disposition rather than to have his or her estate subject to the slavish mandate of consanguine tradition. The delegation of such discretionary power by society to the individual is thought to have advantages of both social and economic nature, but such freedom is not without hazard to a general system of social accountability. The will is an instrument of, and manifestation of, individual freedom vis-à-vis the collective consanguine entity. It is an assertion of personal volition that may reinforce or run counter to the collective consciousness and represents in the latter instance a sanctional device for the partial subversion of social incumbency. When viewed in this way, the will represents a mechanism, legitimated by the state, for moderated deviance from traditional inheritance norms.
The will, while it represents a mechanism for the evasion of social control at one group level, also represents an important mechanism of social control at another level. Through the will and its leverage of economic power, the individual can, before his or her death, exert control over the behavior of the would-be heirs, and even after death, the deceased person can continue to exercise significant control over the legatees, inasmuch as the legal entity of the will ensures surrogate surveillance or monitoring. Thus patriarchal, matriarchal, or parental control over offspring can be effected, sometimes even for generations.
Interestingly enough, it appears that in some instances, the motivation for drawing the will, or even for the purchase of life insurance, is primarily based on this desire to continue the exercise of control over family members or whoever the heirs are, after death. Vance Packard (1958), for example, reported on this desire for control on the part of prospects for life insurance. He reported one authority as saying,
In many instances… our projective tests revealed the respondent’s fierce desire to achieve immortality in order to control his family after death. These men obtain insurance against obliteration through the knowledge that they will continue to dominate their families; to control the family standard of living, and to guide the education of their children long after they are gone. (P. 70)
If the will is not successful as an instrument of social control, it may be more forceful as a vindictive mechanism of sanction. It was reported recently, for example, that the former wife of actor Edward G. Robinson made out her will and left an errant son one baby picture, one baby chair, and one tea set, “because of his unbearable conduct to me” (Scott 1974:2).
The will may, on occasion, be an unintentional instrument of social control. It may have implications for the living, in that it may afford traumatic beneficences to the heirs, with telling import for their social lives, thus effecting significant change, if not influence on their mode of behavior. The social control of the will is not always affected through economic sanctions, however. The will may, for example, impose special obligations and conditions of stewardship on those receiving even material legacies of modest value, either formally as a legal condition of bequest or because of emotion and sentiment. Love, affection, respect, or even guilt, may intensify the sentimental value of a bequest, and/or strengthen the obligating requirement of the testamentary wishes of the deceased. To inherit grandmother’s pearl brooch or grandfather’s favorite shotgun may make emotionally mandatory the compliance with the explicit or perceived implicit dictates, desires, or whims of the testator. Social control based on status striving, particularly that attendant to sibling rivalry may also be involved. To be the recipient of some bequest of even modest value may represent the destroying of symbolic favor by the deceased and thus constitute a status coup among brothers and sisters, thereby carrying behavioral obligations which cannot be avoided.
Although the will is executed in life, it is often not announced or its contents made public until the death of the testator. In this sense, although ambulatory, it may be thought of as a communication from the grave and support the concept of the social status of the dead. The fact that our courts and other legal apparatus undertake assiduously to enforce the will tends to legitimize this social status. It is interesting that a significant amount of legal effort is exerted to defend the wishes of the dead, even if they run contrary to the wishes and well-being of the living.
Finally, the last will and testament may represent, sociologically, an extension and revelation of self. When the will is finally read, it constitutes the last expression of the individual, with absolute finality. Testators as a general rule are more frank and revealing in death than they were in life; the will affords them the opportunity to sum up fully and freely the essence of their lives in their bequests and requests after death. The idiosyncratic persuasions and singular values carefully guarded in life may be openly flaunted in the will. As a result the will may well stand as a new and perhaps a more insightful indicator of the personality of the person than any other manifestation exhibited in life. A colleague, for example, told of a relative, who while seemingly a rabid racist in life, did in fact leave a substantial sum to the NAACP in his will. Adolph Hitler, who seemed little concerned with middle-class proprieties in life, felt compelled to explain in his private testament his decision to marry his mistress, Eva Braun, a short time before their suicide. Furthermore, in his testament, he specified that such of his belongings as were necessary be given to his relatives in order that they be able to maintain a petty bourgeois household. According to his biographer, Hitler also specified that “his relatives be permitted to live according to petty bourgeois standards, for at heart he was himself petty bourgeois” (Payne 1973:554). Death is inevitable and the will offers the opportunity for a final communication to those left behind. There would accordingly seem to be minimal motivation for deception, reticence, or even diplomacy in such a communication.
The Use of Testamentary Disposition
Among social scientists, historians traditionally have been the prime users of information contained in testamentary dispositions. Due, in part, to their training in the use of documentary materials and the ethnographic approach, historians have been able to extract from wills various insights as pertain to such diverse topics as land tenure policies, successional rights and obligations, and ecclesiastical domination. In this latter regard, one has only to recall that during medieval times it was considered sinful to die intestate, and that the church often acted as the principal probate agent and executor of wills. Hence, for example, Shakespeare’s reference to the testamentary precariousness of Shylock’s positions, as a manifest usurer, in the Merchant of Venice.
Since the initial study of Britt (1937), various psychologists, such as Shaffer (1970), have turned their attention to wills as presenting an important source of insights into the human personality. Seminal to their interest in the will is the belief that one’s property, and hence its anticipatory disposition contingent upon death, represents an extension of one’s personality. To quote Shaffer (1970),
Psychological evidence, some research, and some speculation combine to suggest that the testamentary experience is a relatively hopeful confrontation with death. Property is part of personality, and personality is involved with property in the life of wills client. His seeing death in relation to property and the survival of property-personality robs death of some of its stark power. (Pp. 77-78)
The will then, viewed in psychological terms, may be seen as aiding the individual to reconcile his or her eventual demise by ensuring some measure of immortality, peace of mind, and the exertion of power over one’s descendents.
While numerous sociologists, including the authors of various methods texts, generally recognize the rich potential attendant upon the use of “secondary sources,” the last will and testament remains virtually unrecognized and untapped as a source of sociological data. In this regard, a survey of some 21 texts currently used in various sociological research methods courses, reveals no mention of the “will” as a source of research data. Whether through oversight (or blindness), or perhaps owing to the rather provincial identification of wills and related documents with the historical or neo-idealist perspective, the fact remains that the testamentary disposition represents an important primary and ancillary source of information worthy of recognition and utilization by sociologists.
Possible Use of Testamentary Data in Sociological Research
Prior to discussing applications of testamentary data in sociological research, some mention of the exact nature of the information contained in the will or probate record is in order. To be found in the will are data concerning the decedent’s date of death; sex; marital status; residence; a list of the next of kin, beneficiaries, and their exact relationship, if any, to the deceased; and the total assets of the “estate” and their distribution as prescribed by the deceased. Additional information concerning the decedent’s age, occupation, and place of birth can readily be obtained from the death certificate. All such information, it should be noted, is kept on permanent file at the country court-house or a similar location and is readily open to scrutiny by the general public as a matter of public record.
As concerns the many and varied sociological uses which may be made of these data, it appears helpful to orient the discussion which follows around the notion of principal, as opposed to ancillary or auxiliary, data sources. That is to say, the information contained in testamentary documents may be viewed as either the principal initiator of, or supplemental to, a particular research undertaking depending upon the problem under investigation.
Implicit in the employment of testamentary information as a principal data source are various studies that have as their focus the investigation of whom, why, and under what circumstances individuals are most likely to be motivated to have a will drawn up. To date, only two studies, that of Britt (1937) and Sussman, Cates, and Smith (1970), have delved into such questions. While the findings of Britt (1937) are largely inconclusive, save the observation that individuals who die testate are generally of high socioeconomic status, those of Sussman et al. (1970) are considerably more detailed and systematic. Thus, while Sussman et al., find the existence of wills presently to be largely a middle- and upper-class phenomenon, there are indications that the lower classes are turning to wills as well and that the percentage of individuals dying testate continues to rise within our society (Sussman et al. 1970:64). In this regard, Sussman et al. find the decedent’s age, rather than socioeconomic status, to be the best predictor of whether or not an individual has drawn up a will. To quote Sussman et al. (1970),
In analyzing the data by age, it was found that occupational status was associated with testacy for gainfully employed individuals. At age 60, the association between occupational status and testacy was not statistically significant…. Nearly three-fourths of the sample of decedents age 60 and over were testate, which adds further support to the belief that there are a few apparent differences between the testate and intestate after age 60. (Pp. 76-77)
While age appears to be an important factor in differentiating individuals of a testate-intestate persuasion, a rather surprising proportion of individuals were found to contract wills at a rather early age. Two-thirds (66.6%) of the 453 persons surveyed by Sussman et al. as having a will, were found to be 45 years of age or younger. In addition, all indications are that the elapsed time between date of will and death is increasing (Sussman et al. 1970:66).
Given various of the demographic trends associated with the act of establishing a will, several rather interesting sociological questions arise as to the motivation behind, and the functions served by such behavior. For example, to what extent does the fact that two-thirds of the inheritors studied by Sussman et al. (1970:171) were found to have “accurate knowledge of their inheritance prior to the death of the decedent,” portend the existence of an “exchange” relationship as operative between decedent and benefactors prior to death? Have wills generally come to represent unobtrusive indicators of “reciprocity” and/or “role reversal,” between the caring and the cared for in our society? To what extent can instances of disinheritance, or the unequal distribution of inheritance among equally related claimants, be viewed as indication of a loosely integrated or strained family structure? How do inheritances affect the attitudes, behaviors, and general life styles of heir’s vis-à-vis the general amount and nature of the inheritance received? More specifically, under what types of circumstances are inheritances considered “windfalls,” in contrast to “sacred trusts,” by various beneficiaries? In summary, these and other questions await investigation by those researchers employing testamentary documents as a principal source of data. Using such information buttressed by questionnaires or interviews with survivors of the decedent may well afford potentially valuable insights into a wide array of topics which have hitherto been neglected in such diverse areas as the sociology of death and bereavement, the family, role theory, and intergenerational mobility, just to name a few.
Quite apart from their use as a primary data source, testamentary documents can prove equally useful to the researcher when employed in a supplemental manner, as in a triangular data-gathering strategy. In this regard, the detailed and accurate delineation of an “estate’s” net worth found in the will, could prove invaluable in determining a family’s socioeconomic status, as in a community power study. Of similar utility to the community studies specialist are the sociometric preferences and kinship ties revealed in a uniquely unguarded and accurate manner through bequests found in the will. Finally, testamentary data can be used by researchers of varied interests to identify a potential directory of sample subjects stratified on any one, or a combination, of the variables whose information is found therein.
Pragmatic and Methodological Data Concerns
Testamentary documents commend themselves for use by social scientists in light of their easy and permanent accessibility, accuracy, and the general avoidance of social “risk” to the respondent, now deceased.
As pertains to the first of these points, it will be recalled that testamentary documents, to include the entire estate file comprised of the will and death certificate, are matters of public record and as such are readily accessible at the appropriate county court house or similar depository. Furthermore, it should be pointed out that such information remains on file permanently, thus not precluding studies of rather sweeping intergenerational scope. Finally, while the use of testamentary data does incorporate somewhat systematic bias, in that many decedents die intestate, all indications are that intestate deaths are diminishing in this country. Most recent figures place the percentage of the population who die intestate at approximately 30 percent (Sussman et al. 1970:63). Be this as it may, the less than total correspondence between decedents and testamentary data, once recognized, need not hinder and can in fact initiate and augment sociological research of countless variety as noted earlier.
Owing to the demands of legal accuracy, inheritance taxes, and the like, all information contained in the testate record is highly accurate and precise. The decedent’s assets and liabilities are copiously indexed and appraised, as are the genealogical linkages of inheritors delineated. Perhaps most important to the notion of accuracy, however, is the fact that the will represents perhaps the most candid and forthright form of communication known, and thus avoids certain reactive or sensitizing weakness present in other measures and data sources.
Finally, prudent utilization of testamentary materials would appear to minimize the dangers of “social risk” to the respondent, which have recently been of concern to a growing number of social scientists and governmental funding agencies. Yet caution must be exercised by those who would avail themselves of such information so as to avoid displacing these same risks to the survivors of the decedents. In the final analysis, testamentary information like that contained in all documentary materials awaits the creative and responsible talents of those social scientists who would choose to utilize it.