Probate Standing

David Horton* October, 2024

Few topics in civil justice have sparked as much criticism as the standing doctrine. The U.S. Constitution and some of its state counterparts require plaintiffs to allege that they suffered an “injury-in-fact” that the defendant caused and that a court can redress. A veritable ocean of commentary argues that this requirement [is confusing, ahistorical, and unmoored from its objectives.

Yet a different manifestation of the standing doctrine has long lurked in obscurity. Standing issues are also common in state probate courts, where the transmission of assets from the dead to the living can affect a variety of parties. But in sharp contrast to the vast literature on standing in general civil litigation, probate standing has never received sustained scholarly attention.

This Article explores this unique nexus of civil procedure and decedents’ estates. First, it demonstrates that probate standing principles have long been a tangled mess. For hundreds of years, probate judges have tried to control their dockets by limiting the right to file petitions and objections to people who are “interested” in the outcome. However, “interest” is a slippery concept in a field where rights are often contingent. Indeed, the impact of an inheritance dispute can hinge on unknown variables, like future births, deaths, the validity of estate planning documents, or the result of other litigation. Thus, courts reach wildly different conclusions about basic probate standing matters. Second, the Article argues that the costs of the standing mandate outweigh the benefits. For starters, the leading rationales for the standing doctrine—ensuring that claimants litigate zealously and preventing courts from ruling on issues that are better addressed by elected officials—do not apply to a system that is often inquisitorial and features questions about private rights, not social policy. Even worse, the standing mandate closes the probate courthouse door to assertions of grave misconduct. Thus, the Article concludes that probate judges should presumptively grant standing to anyone who might gain something from their claim. Third, the Article uses this insight to propose solutions to festering standing puzzles in will contests, creditor’s claims, lawsuits for elder abuse, fiduciary litigation, and other forms of estate-related conflict.

Introduction

Wyoming courts recently confronted a “case of first impression aris[ing] under unimaginably unjust circumstances.”¹ In 1989, Andrew Johnson was convicted of burglary and assault in Cheyenne.² After he had served twenty-four years in prison, a DNA test exonerated him, and he was released.³ In 2017, he filed a § 1983 claim in federal court against the police officers who had investigated the crime.⁴

Here is where things became complicated: One of the defendants, a detective named George Stanford, passed away while Johnson was incarcerated.⁵ Stanford’s property had apparently never passed through probate, the court-based transfer of wealth from the dead to the living. However, when Stanford was alive, he would have been entitled to be indemnified by the state of Wyoming for liability incurred in the line of duty.⁶ Thus, Johnson tried to reach into this deep pocket by filing a petition in probate court to appoint a personal representative for Stanford and a creditor’s claim against the estate seeking “unknown amounts to be awarded in [the] federal action.”⁷ Wyoming objected, arguing that Johnson lacked standing to initiate the probate process for a long-dead stranger.⁸

The two courts evaluating these issues saw them through different prisms. The probate judge sided with Wyoming, reasoning that because Johnson could not prove that he would win his pending § 1983 lawsuit, his interest in Stanford’s estate was “speculative.”⁹ But Johnson pursued the dispute up the ladder to the Wyoming Supreme Court, which held that the probate court’s ruling was exactly backwards.¹⁰ The state high court declared that the probate judge should not even have considered Wyoming’s standing arguments because, ironically, the state itself lacked standing.¹¹ Yet the court struggled to explain why. It admitted that Wyoming was “interested” in Stanford’s probate matter in the sense that the result of that case might increase its damage exposure.¹² But it nevertheless concluded that Wyoming’s real interest lay “in its defense of the [§ 1983] action, not in the probate court[].”¹³

***

On June 10, 2009, Richard Swenson, an elderly resident of Bradford County, Pennsylvania, executed a will that left his property to his neighbor, Nancy Kitchin.¹⁴ Swenson’s nieces, who were his closest surviving family, contested the document.¹⁵ They claimed that Swenson suffered from dementia and that Kitchin had abused a power of attorney she held to act on Swenson’s behalf by gifting 140 acres of his farmland to herself.¹⁶ They asked the probate judge to strike down the will on the grounds of duress, fraud, incapacity, and undue influence.¹⁷

However, the probate court never considered the merits of these allegations. Swenson had also made wills benefitting Kitchin and excluding his nieces on April 11, 2008; February 6, 2009; and June 2, 2009.¹⁸ At least one of these wills seemed suspicious: The April 2008 document purported to give assets to Swenson’s brother who had died the previous year.¹⁹ Yet both the probate judge and a Pennsylvania appellate court found that Swenson’s prior wills created a force field around the June 10th will.²⁰ As these courts observed, to inherit from Swenson through intestacy, the nieces would need to invalidate four separate wills.²¹ In turn, since their interest in the estate was “remote,” they lacked standing.²²

***

Joshua and Jezra Lickter sued their father, Robert, for allegedly abusing their 91-year-old grandmother, Lois.²³ Joshua and Jezra argued that Robert—the primary beneficiary of Lois’s trust—had tried to maximize the size of his inheritance by denying her “essential medical care with the purpose of preserving her assets.”²⁴ According to their complaint, Robert withheld Lois’s medications, isolated her, lied to her healthcare agent, and forced her to move to a less expensive nursing home where she later died.²⁵ Joshua and Jezra sought relief under California’s Elder Abuse and Dependent Adult Civil Protection Act (“Elder Abuse Act”), which allows plaintiffs to sue on behalf of the estate of a deceased senior who was mistreated during life.²⁶

Yet a California appellate court found a fatal flaw in Joshua and Jezra’s lawsuit. Lois’s trust only left Joshua and Jezra $10,000 each.²⁷ The fact that they received a lump sum rather than a fractional share was dispositive because damages recovered under the Elder Abuse Act go to the victim’s estate rather than to the plaintiffs.²⁸ Therefore, the court noted, even if Joshua and Jezra won at trial thereby enriching Lois’s estate, they would still inherit the same fixed amount of $10,000 from her trust.²⁹ And because Joshua and Jezra had no financial interest in the outcome of their own claim, they did not have standing to pursue it.³⁰

***

These disputes involve a unique strand of a notoriously problematic doctrine. In civil litigation, standing is synonymous with Article III of the U.S. Constitution. Article III limits the federal judicial power to “[c]ases” and “[c]ontroversies.”³¹ Accordingly, in federal court, plaintiffs must show they suffered an “injury-in-fact” that the defendant caused and that a court can redress with a favorable decision.³²

This gateway requirement has inspired decades of criticism. For starters, the U.S. Supreme Court’s opinions on the subject are “widely regarded to be a mess.”³³ Scholars bemoan “the metaphysics of injury in fact”³⁴: the Court’s incoherent views on whether a plaintiff has standing when a defendant angers them,³⁵ saddles them with nominal damages,³⁶ or subjects them to an increased danger of future harm.³⁷ In addition, the standing rule’s normative underpinnings have been a moving target. The Justices once opined that the principle improves the quality of judicial decisionmaking by ensuring that plaintiffs have enough skin in the game to litigate zealously.³⁸ But more recently, the Court has abandoned that notion and insisted that the standing requirement “is built on a single basic idea—the idea of separation of powers.”³⁹ Seen through this prism, standing keeps judges in their lane by mandating that they dismiss complaints about social policy that should be directed to elected officials.⁴⁰ Finally, it is an open secret that activist courts on both sides of the political divide manipulate the doctrine to reach results that reflect their view of a case’s merits.⁴¹ For these reasons, there are “[h]undreds of law review articles” on the topic.⁴²

However, another deeply unsettled version of the standing doctrine has flown underneath the scholarly radar. Standing issues are also common in probate court, where the passage of assets from the dead to the living can affect a variety of people, such as the decedent’s spouse, descendants, distant relatives, friends, and creditors. These parties often fight tooth and nail for reasons that are emotional, not financial. Thus, for centuries, probate judges have been grappling with the complex interplay between justiciability and harm. But in sharp contrast to the vast literature on Article III standing, no commentator has addressed probate standing in detail.⁴³

This Article explores this neglected, mind-bending, and oft-litigated subject. It makes six contributions. First, it describes the common law of probate standing. Starting in the 1700s, probate judges tried to prevent proceedings from devolving into an unruly scrum by limiting the ability to participate to “interested persons.”⁴⁴ However, the meaning of this phrase proved to be elusive. Some courts adopted a precursor to the injury-in-fact element by requiring parties to contend that they had a pecuniary stake in the litigation (the “property” theory).⁴⁵ But others found that a decedent’s intestate heirs always have standing to contest a will (the “status” view).⁴⁶ Thus, as a California Supreme Court Justice complained in the mid-twentieth century: “No standard could be more vague and lacking in definition. What sort of interest must there be, and in what?”⁴⁷

Second, the Article critiques the property and status perspectives. It argues that the property view raises more questions than it answers. Indeed, it can be hard to predict whether a prospective litigant will receive assets from the estate if they win. The problem is that inheritance rights tend to be contingent: Whether someone will profit from their claim can depend on factors that are unknown at the time of filing. For instance, as with Andrew Johnson’s effort to collect § 1983 damages in George Stanford’s estate, a creditor’s rights can hinge on the outcome of other litigation.⁴⁸ Alternatively, as the battle over Richard Swenson’s will demonstrates, a party who contests an estate plan may only inherit if they also nullify other legal documents.⁴⁹ Thus, countless courts have abandoned the chore of determining whether a party has a property right in play and instead resolve claims on policy grounds.⁵⁰ Yet the alternative to the property theory—the status view—is even more deficient. There has never been any doubt that heirs can challenge a will that disinherits them. However, courts that have adopted the status perspective leap from this sensible premise to the bizarre conclusion that heirs can always attack a will—including wills that make them better off. Accordingly, the status theory allows heirs to sue “to right a wrong done entirely to someone else or just to make a point.”⁵¹

Third, the Article shows that this confusion continues to plague modern law. Since the mid-twentieth century, many jurisdictions have passed statutes that define an “interested person” as “[a]n heir, devisee, child, spouse, creditor, beneficiary, and any other person having a property right in or claim against . . . the estate.”⁵² Yet as several courts have noted, the text of this provision “presents a classic ambiguity.”⁵³ On the one hand, it seems to codify the property theory by insisting that litigants try to vindicate “a property right” in the decedent’s assets. But on the other hand, it appears to endorse the status view by listing individuals who automatically enjoy standing based on their relationship to the decedent. Therefore, courts in different states—and sometimes the same state—disagree about elementary topics, including who can try to open an estate, contest a will, collect a debt, or remove a fiduciary.⁵⁴

Fourth, the Article surveys three trends that are pushing this doctrinal turmoil to the fore. For starters, revocable inter vivos trusts have become the primary estate planning device.⁵⁵ Unlike wills which trigger a one-time transfer, trusts span generations and, as a result, create tiers of contingent beneficiaries and spawn standing issues.⁵⁶ Meanwhile, states are creating powerful civil claims for elder abuse that can be filed on behalf of the estate of a deceased senior citizen.⁵⁷ Crucially, several jurisdictions regulate standing in trust and elder abuse litigation by importing the “interested person” standard from probate.⁵⁸ Finally, a unique body of law is on a collision course with probate standing principles. Although we think of courts as “tribunals for the resolution of concrete disputes between adverse parties,” states are allowing probate judges to break this mold by adjudicating issues that no litigant has raised.⁵⁹ To date, no court or commentator has tried to explain how this “self-driving” function and the standing requirement fit together.

Fifth, the Article outlines what the law of probate standing is and should be. It starts by demonstrating that statutes that define “interested person” do not adopt the status view. The best reading of the legislative texts is that all parties, including heirs, must attempt to gain money or some other valuable entitlement. In addition, because policymakers adopted these laws with little fanfare, they almost certainly did not intend to adopt the extreme minority position of the status view. Thus, as the Court of Appeals of Oregon correctly held, it takes “more than generalized grievances or status as a family member in order to be . . . an ‘interested person.’ ”⁶⁰ But the Article also urges probate judges to use the standing doctrine sparingly. Not only does the rule keep serious claims out of court, but it can also be weaponized. For instance, as Richard Swenson’s estate reveals, wrongdoers can create a tripwire for contestants by coercing a testator into signing multiple wills.⁶¹ In addition, the rationales for Article III standing—maintaining the adversarial nature of litigation and guarding the turf of the legislative and executive branches—do not apply in a system where courts can raise issues sua sponte and the cases do not affect the public. Thus, the Article argues that any claimant whose rights might be affected by a case should presumptively be an “interested person”—an approach that it calls the “liberal” theory of probate standing.

Sixth, the Article explains how the liberal theory can improve results in cases. Courts should implement this thesis by dividing probate litigants into three camps—directly interested, indirectly interested, and uninterested parties. Some parties are directly interested—and have standing—because they are guaranteed to obtain relief if they win on the merits. But many people are indirectly interested. These individuals can only allege that they may gain a valuable right from the case. For example, Andrew Johnson was indirectly interested in George Stanford’s estate because he would only be a creditor if he was victorious in his § 1983 lawsuit;⁶² Richard Swenson’s nieces were indirectly interested in contesting his June 2009 will because they would need to strike down his other instruments to take via intestacy.⁶³ Contrary to the approach in many states that demands that claimants have “a real, beneficial interest, not simply an expectancy or an inchoate right,”⁶⁴ the liberal theory recognizes that closing the probate courthouse door is an extreme measure. Thus, it almost always permits indirectly interested parties to proceed to the merits. And lastly, some litigants are uninterested because prevailing will net them nothing. Uninterested parties lack standing. But as noted, in extraordinary cases, probate courts can self-drive and entertain claims in the absence of an “interested person.”⁶⁵ This safety valve would be valuable in cases like Joshua and Jezra Lickter’s, which feature both serious allegations and a hypertechnical standing defect.⁶⁶

A few points of clarification may be helpful at the outset. Although probate courts are part of state judicial systems, many of them must satisfy Article III standing rules. This point is counterintuitive because Article III governs federal courts and no state constitution has a “[c]ases” or “[c]ontroversies” requirement.⁶⁷ Nevertheless, about half of the states have adopted federal justiciability principles.⁶⁸ Thus, as I will discuss, lawmakers and courts must be sensitive to the demands of Article III when calibrating probate standing principles.⁶⁹

Standing issues in probate are also complex because the process takes several forms. The first is the overarching administration of the decedent’s possessions.⁷⁰ Cases usually begin in this noncontentious posture, where the judge monitors the personal representative as they give notice of the death, pay the estate’s debts, and convey the property to survivors.⁷¹ The parties—the decedent’s heirs, beneficiaries, and creditors—receive notice of all pleadings and hearings but often do not appear, allowing the matter to conclude without conflict.⁷² Conversely, if disputes arise, the probate court pauses the estate administration to settle the disagreement.⁷³ Because probate judges conceptualize contested issues as a discrete case within a case, the fact that somebody is a party to the estate administration does not mean that they have standing to participate in the litigation. And, because probate courts can also self-drive, they enter a hazy zone between administration and litigation.

Finally, civil procedure boasts a richer collection of justiciability doctrines than probate procedure does. For example, in general civil litigation, a court might dismiss a case on the grounds of ripeness (if the facts are not developed)⁷⁴ or mootness (when the problem that provoked the dispute no longer exists).⁷⁵ Likewise, Article III standing doctrine contains many subelements, like the principle that an injury-in-fact must be “concrete” (it needs to have happened)⁷⁶ or “imminent” (very certain to occur).⁷⁷ But probate courts have a reductionist tendency to lump all such issues together as “standing” and answer them by deciding whether a party is an “interested person.”⁷⁸ Because my goal is to describe and reform inheritance law, I use its vocabulary. At the same time, I flag places where probate standing should borrow from the more sophisticated regime of general civil caselaw.

The Article contains three Parts. Part I offers background on probate standing. It demonstrates that the legal system has struggled for centuries to regulate access to probate litigation. Part II examines three new developments—the rise of trusts, the adoption of elder abuse laws, and the self-driving function of probate courts—that are making this dissensus more important. Part III is positive and normative. It first argues that “interested person” statutes do not adopt the status perspective. It then articulates and defends the liberal theory that instructs probate courts to assume that a party whose rights might be impacted by a matter is “interested” in it. Finally, it brings these insights to bear on entrenched splits in authority about standing in will contests, creditor’s claims, elder abuse cases, battles over fiduciaries, and other inheritance-related disputes.

I. Probate Standing

This Part describes the history of the probate standing doctrine. It shows that standing emerged as a discretionary rule that allowed probate judges to close their doors to individuals who were not sufficiently “interested” in a case. It then reveals that courts adopted two different definitions of what it means to be “interested”—the status and property theories. Finally, it explains that the widespread passage of statutes that define the phrase have only compounded the confusion.

A. Common Law

Courts have long allowed “interested persons” to participate in probate cases.⁷⁹ This Section surveys their wildly inconsistent attempts to apply this standard.

1. England

Standing issues were rare at common law. To be sure, courts recognized that “the action should be brought in the name of the party whose legal right has been affected.”⁸⁰ The concept that policed this terrain was known as locus standi,⁸¹ or “place of standing.”⁸² However, locus standi was not an obstacle for plaintiffs with private law claims. Under the ancient writ system, a party who sought relief for a wrong that we could classify today as a tort or a breach of contract needed to shoehorn their allegations into one of a few existing templates.⁸³ If the facts fit the appropriate mold, the case would proceed to trial.⁸⁴ Accordingly, in private law matters, the standing inquiry was subsumed within the question of “whether positive law created a cause of action.”⁸⁵

Public law disputes were different. In the early eighteenth century, British courts allowed citizens to use the prerogative writs of mandamus, prohibition, and certiorari to challenge illegal governmental action.⁸⁶ Although the historical record is murky, some prerogative writs may have been filed by “strangers,” in the sense that “the plaintiff had no personal interest or ‘injury-in-fact.’ ”⁸⁷ For my purposes, however, the key point is that the invocation of one of these writs triggered a special rule that empowered judges to deny standing in their “sound discretion.”⁸⁸

The rules of probate standing emerged against this backdrop. Ecclesiastical courts, which had jurisdiction over will contests,⁸⁹ found themselves grappling with locus standi dilemmas that did not usually arise in private law litigation. The issue was intractable for several reasons. First, matters involving decedents’ estates are in rem: Rather than merely adjudicating a dispute between the plaintiff and the defendant, they retitle property and are “good against the world.”⁹⁰ This means that a probate ruling can impact scores of parties, such as the decedent’s spouse, children, far-flung relatives, neighbors, and creditors. Second, probate takes place against the psychologically fraught backdrop of death. Thus, even survivors who have no money riding on a case brawl with bare knuckles for emotional reasons.⁹¹ Accordingly, to keep the process moving, ecclesiastical courts limited standing to those who were “interested” in the decedent’s assets.⁹²

Most judges construed “interest” broadly. Frequently, a person’s stake in an estate does not yet exist and will only come into being if some future event occurs. Perhaps they will inherit if another person dies first, marries, has children, executes their own will, or exercises a power of appointment. When faced with contingencies, ecclesiastical courts bent over backwards to find standing and deemed “the bare possibility of an interest” to be sufficient.⁹³

For example, in 1756, in Wright v. Rutherford, John Price, a lawyer, executed a will that left his property outright to his sister, Jane Wright.⁹⁴ Eventually, John made another will that revoked the first will and put his assets in trust for Jane’s benefit.⁹⁵ After John died, his half-sister and one of his intestate heirs Mary Rutherford challenged the second instrument.⁹⁶ Jane replied that Mary lacked standing, noting that even if Mary set aside the later will, the likely result would be to revive the prior will, which also excluded Mary.⁹⁷ The court was not persuaded.⁹⁸ It reasoned that as the case unfolded, the first will might prove to be void and, therefore, would not eliminate Mary’s ability to inherit through intestacy.⁹⁹

Not every asserted interest could open the probate courthouse door, but judges did not exclude a party unless their connection to a matter was quite remote. Brotherton v. Hellier provides a rare example of such a fact pattern¹⁰⁰: The testator left his assets to his minor son, rather than to his spouse.¹⁰¹ When the spouse contested the will, the court appointed a guardian to represent the son.¹⁰² However, the son’s grandmother also sought to defend the will.¹⁰³ The grandmother argued that she was “interested” in the litigation because she was the son’s intestate heir and would inherit from the son if he received property from the testator and then died before she did.¹⁰⁴ The court denied standing with little analysis.¹⁰⁵ But implicit in the decision is the idea that the event that would give the grandmother a cut of the estate—her grandchild predeceasing her—was exceedingly unlikely to occur.

In sum, British probate courts held that “all persons whose interests may by any possibility be adversely affected should be given an opportunity to be heard.”¹⁰⁶ Yet as I discuss next, the picture clouded across the Atlantic.

2. America

In the nineteenth century, U.S. courts began to grapple with probate standing. Several jurisdictions passed statutes that allowed interested persons to litigate.¹⁰⁷ However, because these laws “d[id] not define the nature of the interest which the plaintiff must have,”¹⁰⁸ courts tried to flesh out the concept. This Section describes and critiques the two primary ways they did so.

The Property Theory

Most courts adopted the property theory of probate standing.¹⁰⁹ It taught that a party could sue if they were threatened with “being stripped of [their] . . . right[]” to assets from the estate.¹¹⁰ The paradigmatic example was an heir whose expected inheritance was eliminated by an allegedly unenforceable will:

Upon what is the right of an heir or other person in interest to contest a will fundamentally based? Manifestly, upon the illegal deprivation occasioned to [them], the illegal loss to [them] of property or property rights, by giving recognition to an instrument depriving [them] of those rights, which instrument for one or another cause, is illegal, invalid and void.¹¹¹

A corollary of the property theory was the idea that hearing claims that sought relief for hurt feelings or ideological grievances would derail the probate process.¹¹² Thus, to keep estate administration on track, courts held that “[a]n interest resting on sentiment or sympathy, or any other basis other than gain or loss of money or its equivalent, is insufficient.”¹¹³

However, the property perspective had an Achilles heel. Because inheritance rights are often conditional, it can be unclear whether a party’s claim, if successful, will entitle them to more of the estate.¹¹⁴ Accordingly, the property view offered little assistance to courts in cases that featured these kinds of contingencies. Instead, judges were forced to decide these disputes by evaluating factors such as procedural efficiency and fairness.¹¹⁵

One area of profound discord involved testators who made multiple wills—the issue that reared its head in Wright v. Rutherford.¹¹⁶ Courts clashed over whether an heir had standing to contest the testator’s last will when they took nothing under one or more earlier wills. Some judges held that the previous will or wills deprived the heir of an interest in the estate.¹¹⁷ For example, the Louisiana Supreme Court reasoned that resolving a challenge to several wills would be cumbersome:

[I]f the plaintiff should succeed in annulling the last will, the plaintiff would have to bring another suit to annul the next preceding will, when probated; and, if the plaintiff should succeed also in annulling that will, he or she would have to bring another suit to annul the next preceding will, when probated, and so on down the line; and, if the plaintiff should eventually come to a valid will, all of his or her victories—and all of the time and trouble given to the litigation—would be in vain.¹¹⁸

But other courts were willing to forgo procedural elegance to avoid harsh results.¹¹⁹ They reasoned that until a probate judge had ruled that a previous “will” satisfied the formalities required to execute a testamentary instrument and was free from incapacity and undue influence, the will was “merely a ‘scrap of paper.’ ”¹²⁰ In turn, as the Kansas Supreme Court observed, it would be inequitable to presume that the earlier will-like writing was enforceable and then use it “to the prejudice of an heir who has never had a chance to question its validity.”¹²¹ These cases illustrate that judges purporting to embrace the property perspective ended up resolving disputes on prudential grounds that had nothing to do with property rights.

Courts also tied themselves into knots trying to apply the property theory to contests filed by creditors of an heir. Suppose a testator’s child is heavily indebted: The testator, then, signs a will disinheriting the child to shield the testator’s assets from the child’s creditors. Can the child’s creditors contest the will so that the child can take through intestacy and the child’s creditors can be repaid?

The property theory denied standing to “general” creditors (those who merely had a contractual right to collect from the heir).¹²² For example, in Shepard’s Estate, Harriet Shepard’s son, Henry, was insolvent.¹²³ Harriet left her property to Henry’s wife and children, rather than Henry, to “protect[] it from seizure by his creditors.”¹²⁴ Henry’s creditors argued that the signature on Harriet’s will had been forged.¹²⁵ The Pennsylvania Supreme Court refused to allow Henry’s creditors to pursue the claim, reasoning that they had no property right in Harriet’s estate and that allowing “stranger[s]” to sue would open the litigation floodgates.¹²⁶

Yet the property theory produced arbitrary results when applied to a different kind of creditor. Some creditors had taken the extra steps of obtaining a judgment against the heir and a lien on any real property that the heir acquired in the future.¹²⁷ These “judgment lien creditors” arguably did have an interest in the testator’s estate: The lien allowed them to force a sale of the land and thus bore a close resemblance to a property right.¹²⁸ Therefore, several state supreme courts allowed judgment lien creditors to challenge a will that disinherited the heir because the lien would “attach to the property on devolution to the heir if the will [was] invalid.”¹²⁹ This talismanic reliance on liens made sense from a property perspective, but it also drew absurd distinctions between creditors. A judgment lien creditor would lack standing if they had the misfortune of attacking a will that conveyed personal property or land that was not subject to the lien.¹³⁰

Finally, the property theory did not help courts determine whether a decedent’s administrator or executor could contest a will that named someone else as fiduciary. At the end of the probate process, fiduciaries were (and are) entitled to fees from the estate.¹³¹ Did these fees qualify as an “interest” that entitled fiduciaries to challenge a will that removed them from office? It would be an understatement to say that courts did not speak with a single voice on the matter.

For starters, although some courts tried to apply the property perspective, they could not agree on whether being paid for services from the estate was a property right. Supreme courts in Minnesota and New York saw no difference between fiduciaries and beneficiaries; they reasoned that both classes of people had standing because they suffered a financial hit when they were cut out by an allegedly unenforceable will.¹³² However, the Iowa Supreme Court disagreed, opining that fiduciaries do not inherit anything but, rather, are merely “a channel through which the property passes.”¹³³ And other courts gave up trying to fit the issue’s square peg into the property view’s round hole—instead, they tried to discern whether the decedent would have wanted the fiduciary to sue. For example, courts in California and Washington allowed fiduciaries to contest wills that altered the previous instrument’s dispositive provisions, but not documents that merely named a different fiduciary:

Some times [sic] it happens that a later will makes no change at all in the disposition of the testator’s estate, but merely nominates a different executor. In such a case, why should the estate be burdened by will contest proceedings for the sole purpose of determining which of two rival claimants shall be permitted to act as executor?¹³⁴

Likewise, the Maryland Supreme Court denied standing because the fiduciary “was unknown to the testator until the day next preceding the execution of the will.”¹³⁵ Thus, in both this context and others, the property theory did not give courts the tools necessary to resolve recurring fact patterns.

The Status Theory

Alternatively, a handful of judges adopted the status theory: A litigant’s “interest” was based entirely on their relationship to the decedent. It generally arose when one of the testator’s heirs engaged in the paradoxical act of attacking a will that left them an amount of money that equaled or even exceeded their intestate share. Although the instrument did not seem to harm the contestant, courts applying the status perspective allowed the lawsuit to proceed because they believed that heirs always had standing to challenge a will.¹³⁶

Consider Benton’s Estate¹³⁷: A wife alleged that her husband’s will was void because of incapacity and fraud.¹³⁸ The will’s proponent asserted that the wife lacked standing because the will left “her a larger share of the estate than she would take as an heir.”¹³⁹ The California Supreme Court brushed aside this argument on the grounds that “[i]t is only necessary to say that [the wife] shows herself to be an heir at law of [the] decedent.”¹⁴⁰ In this way, the status view gave parties who might not have suffered an injury-in-fact access to probate court.

The status perspective was the minority approach for several reasons. For one, some of the opinions that used it could be read as resting on alternative rationales. In these cases, a factual ambiguity prevented a mathematical comparison of the contestant’s share under the will with the sum they would take in its absence.¹⁴¹ Benton’s Estate was no exception: The opinion never put a dollar amount on the wife’s potential inheritance through intestacy, and it even remarked that “it is immaterial that the will attacked possibly gives her a larger share of the estate than she would take as an heir at law.”¹⁴² Thus, Benton’s Estate and its ilk did not necessarily endorse the proposition that heirs are always “interested” in will contests. Instead, because it was conceivable that the heir could profit from the lawsuit, these opinions can be seen as applying the adage that “the bare possibility of an interest[] is sufficient to entitle a party to oppose a testamentary paper.”¹⁴³

Additionally, leading authorities for the status view glossed over an important nuance. To anchor the claim that heirs have standing to contest a will, they cited cases holding that heirs have standing to contest a will.¹⁴⁴ Nevertheless, they misunderstood why these decisions held so. Almost always, the relied-upon opinions determined only that heirs could try to annul a will that deprived them of property by leaving them less than their intestate share.¹⁴⁵ In these matters, the heirs had standing not because they were heirs, but because they would gain assets if they prevailed.¹⁴⁶ Courts that endorsed the status theory failed to recognize that even though heirs can seek to overturn an instrument that reduces their inheritance, that does not mean that they can contest any will.

Finally, the status theory was not a comprehensive theory of probate standing; it only governed the discrete issue of will contests filed by heirs. So even if a court had adopted the status perspective, it would need to fall back on the property theory to resolve other standing issues.¹⁴⁷

In sum, well into the twentieth century, probate standing law was in shambles. The next Section explains how more recent efforts to codify these principles have backfired spectacularly.

B. Codification

Today, many jurisdictions have passed statutes that define “interested person.” This section reveals that these laws have perpetuated, rather than resolved, the clash between the property and status theories. If anything, their legacy has been to bolster the once-marginal status perspective.

In recent decades, probate standing legislation has spread across the country. The catalyst was the 1969 promulgation of the Uniform Probate Code (UPC).¹⁴⁸ Section 1-201(23) of the model law outlines who can participate in litigation:

“Interested person” includes heirs, devisees, children, spouses, creditors, beneficiaries, and any others having a property right in or claim against a trust estate or the estate of a decedent . . . . The meaning as it relates to particular persons may vary from time to time and must be determined according to the particular purposes of, and matter involved in, any proceeding.¹⁴⁹

The UPC has been amended several times, and although the substance of this definition has remained largely the same, its numbering has changed. See Unif. Prob. Code § 1-201(23) (Unif. L. Comm’n 2019). The UPC definition appears to be based on early probate standing statutes in Florida and Texas. See Dana v. Drumright (In re Dana’s Estate) 190 So. 52, 53 (Fla. 1939); Allison v. F.D.I.C., 861 S.W.2d 7, 10 (Tex. App. 1993).

Twenty-six states have adopted this provision or language much like it.¹⁵⁰

Section 1-201(23) has heightened the confusion that plagued the common law. The root of the problem is the final clause of the first sentence: “[A]nd any others having a property right in or claim against a trust estate or the estate of a decedent.” One plausible reading of the statute is that this language “modifies all nouns in the series ‘heirs, devisees, children, spouses, creditors, beneficiaries and any others.’ ”¹⁵¹ Read this way, simply falling within one of the enumerated classes is not sufficient. Instead, no matter who you are, the key question is whether you have a “property right” or “claim” at stake in the litigation.¹⁵² This seems to restate the property view.

Price v. Lotlikar, an Oregon appellate decision, shows how this reading works.¹⁵³ Phillip Chin signed a will leaving his property to his sister, Penny Gertsch and, thus, disinherited two other siblings, Faye Lotlikar and Shirley Ma.¹⁵⁴ After Chin died, his nephew, Darby Price, served as executor and completed the probate process.¹⁵⁵ Two days after the final distribution, Lotlikar and Ma filed a petition to reopen the case, alleging that they had discovered that Price had stolen assets from the estate.¹⁵⁶ The probate court held a trial and ruled in Lotlikar and Ma’s favor, remarking that “Price [had] ‘r[u]n from bank to bank trying to empty’ . . . Chin’s accounts.”¹⁵⁷ But the court of appeals reversed on the grounds that Lotlikar and Ma lacked standing to object to Price’s conduct.¹⁵⁸ The appellate panel explained that the mere fact that Lotlikar and Ma were Chin’s “heirs” did not make them “interested person[s].”¹⁵⁹ Instead, because they received nothing under Chin’s will, they had no “property interest or claim” that would be affected by forcing Price to reimburse the estate for the embezzled assets.¹⁶⁰

However, one can also reasonably read § 1-201(23) to adopt the status theory. Again, here is the text, with the key clause italicized: “ ‘Interested person’ includes heirs, devisees, children, spouses, creditors, beneficiaries, and any others having a property right in or claim against . . . the estate . . . .”¹⁶¹ Perhaps the mandate that a party have a right in or claim against the estate only governs “any others”—the text it precedes. Seen this way, “interested persons” are heirs, devisees, children, spouses, creditors, beneficiaries, and the catchall category of “any others having a property right in or claim against . . . the estate.”¹⁶²

This status-centric reading kicks the probate courthouse door off its hinges. Like its common law forebearer, it allows certain parties to sue “even if they do not have a pecuniary interest in the estate.”¹⁶³ In Aguirre v. Bosquez, for example, Ignacio Aguirre disinherited his wife, Minnie.¹⁶⁴ After Ignacio died, a Texas appellate court held that Minnie could demand an accounting from the executor because simply being the decedent’s “surviving spouse is one of the ways to qualify as an interested person under the Probate Code.”¹⁶⁵

Similarly, in Estate of Schlenker, Levi Schlenker executed a will that left nothing to his daughter, Imogene, and named his son, Troy, as executor.¹⁶⁶ After Levi died, Imogene challenged the will on the grounds of incapacity and undue influence.¹⁶⁷ Troy argued that Imogene lacked standing; Levi had signed three previous wills that also excluded her.¹⁶⁸ The Illinois Supreme Court disagreed, noting that Imogene was Levi’s heir and that “[t]he text of th[e] statute specifically includes heirs in the definition of ‘interested persons.’ ”¹⁶⁹ Accordingly, the court concluded that if a party has the proper relationship to the decedent, then “[w]hat [they] stand to receive under the challenged will or any prior wills is irrelevant.”¹⁷⁰

In some jurisdictions, there are cases on both sides of the interpretative divide. For instance, despite Aguirre, other Texas appellate courts require probate litigants to allege that they have experienced some kind of injury.¹⁷¹ In an even starker example, the Montana Supreme Court gave its imprimatur to the property reading in 2015—but in 2017, without citing its earlier opinion, it employed the status theory.¹⁷²

More than two hundred and fifty years after the law of probate standing emerged, it remains chaotic. Part II explains why this lack of clarity has become a pressing problem.

II. Recent Developments

This Part highlights trends that reinforce the need for a consistent approach to probate standing. It first shows that uncertainty about the meaning of “interested person” is spilling into the probate-adjacent fields of trust and elder abuse litigation. It then discusses a nascent line of cases that allows probate courts to resolve conflict independently—a power that poses an existential threat to the standing mandate.

A. Revocable Trusts

Since the dawn of the nonprobate revolution in the 1970s, a rising number of Americans have made revocable trusts the centerpiece of their estate plan.¹⁷³ This Section shows that litigation over these devices takes place in § 1-201(23)’s shadow.

A primer on how trusts function as “will substitutes” can frame this discussion. Estate planners recommend that their clients bypass the glacial probate process by creating a revocable trust.¹⁷⁴ Probate only governs rights and items that a decedent owns in their individual capacity.¹⁷⁵ Thus, a settlor can avoid probate by conveying their property to a trustee who manages and distributes it as directed.¹⁷⁶ Even if the settlor enjoys complete dominion over the trust—such as reserving the power to revoke it and naming themselves the sole lifetime beneficiary—they no longer own the corpus and therefore have no possessions that qualify for probate.¹⁷⁷ When the settlor dies, the trust becomes irrevocable, and the trustee distributes the assets to the remainder beneficiaries as the settlor has instructed.¹⁷⁸

Revocable trusts tend to create standing issues relating to fiduciary litigation.¹⁷⁹ For one, trustees are active investors, and their financial decisions have a profound effect on the value of the trust.¹⁸⁰ Accordingly, anyone who is or may be entitled to trust funds has incentives to sue, monitor, or remove a poorly performing trustee. But at the same time, these people often only have ephemeral rights in the corpus. For example, during the settlor’s life, the remainder beneficiaries are not certain to inherit anything because the settlor might revoke the trust or consume its assets.¹⁸¹ Even after the settlor’s death, the trustee may have discretion to select beneficiaries, choose how much to give, or withhold disbursements.¹⁸² Finally, settlors often use revocable trusts to create contingent interests for future generations.¹⁸³ Thus, standing issues stemming from revocable trusts have flooded courts.¹⁸⁴

Because a plurality of states regulate trust standing under § 1-201(23), the haze that has long hung over access to probate court is creeping into the trust context.¹⁸⁵ The most striking illustration is a recent case called In re Rhea Brody Living Trust, which devolved into a tug-of-war between the Michigan Court of Appeals and the Michigan Supreme Court.¹⁸⁶ Rhea Brody created a revocable trust, naming herself trustee and lifetime beneficiary, her husband Robert successor trustee, and her children Jay and Cathy contingent beneficiaries.¹⁸⁷ Decades later, Rhea’s mental acuity declined and Robert took control as trustee.¹⁸⁸ Cathy sued, alleging that Robert had breached his fiduciary duties by selling trust property to Jay and Jay’s family.¹⁸⁹ The probate judge agreed with Cathy, unwound the deals, and removed Robert as trustee.¹⁹⁰

All hell broke loose on appeal. Robert and Jay claimed that since the trust was revocable and Cathy was a contingent beneficiary, she had no inheritance rights and could not show that Robert’s actions harmed her.¹⁹¹ In 2017, a Michigan appellate court rejected this argument by reading the state’s version of § 1-201(23) to adopt the status theory.¹⁹² In the appellate panel’s eyes, the case was clear-cut: Cathy was an “interested person” because “[t]here is no dispute that [she] is Rhea’s child.”¹⁹³ In 2018, the Michigan Supreme Court issued a one-paragraph order remanding the case to the appellate court “for reconsideration of its standing analysis.”¹⁹⁴ Back in the court of appeals, the Michigan Bar’s Estate Planning Section filed an amicus brief warning that the status perspective would have dire consequences:

[The] determination that a “child” . . . is always an interested person with standing to commence trust proceedings before the probate court . . . can be expected to interfere seriously with the administration of private citizens’ estate planning and trust administration. In light of this published decision, “children” . . . can be expected to rely on [the opinion] to pursue trust-related litigation which would not have been permitted prior to [that] decision.¹⁹⁵

Nevertheless, the appellate court stuck to its guns.¹⁹⁶ After resolving the dispute on other grounds, it reiterated that “children” have standing in trust litigation without regard to whether they “ha[ve] a property right in or claim against a trust estate.”¹⁹⁷ Finally, in 2019, the Michigan Supreme Court published an unusual ruling denying review but vacating the lower court’s endorsement of the status theory as “unnecessary to resolv[e] this case.”¹⁹⁸

In sum, § 1-201(23) no longer applies just to probate litigation. Instead, the statute’s nebulous definition of “interested person” has migrated into the realm of trust disputes. As I discuss next, the same shift is occurring in elder abuse cases.

B. Elder Abuse

Since the 2000s, states have created potent civil claims for financial elder abuse. This Section explains why the most aggressive of these laws employ the “interested person” standard to determine standing, creating the potential for confusion.

In the past two decades, lawmakers in approximately twenty jurisdictions have created a private right of action against anyone who misappropriates a senior’s property.¹⁹⁹ This legislation seeks to combat financial elder abuse, which has become the “crime of the 21st century.”²⁰⁰ The U.S. is awash in a “silver tsunami”²⁰¹ in which 83.7 million people will soon be sixty-five or older.²⁰² This cohort has accumulated $30 trillion in wealth²⁰³ and will experience high rates of Alzheimer’s and dementia, making them vulnerable to manipulation.²⁰⁴ Thus, states have added sharp teeth to their financial exploitation statutes, such as allowing plaintiffs to recover punitive damages and attorneys’ fees²⁰⁵ and subjecting perpetrators to the “abuser rule,” a novel penalty that bars them from benefitting from their victim’s estate by deeming them to have already died.²⁰⁶

However, standing doctrine has limited the impact of these ambitious laws. Elder abuse is a tort.²⁰⁷ Like all torts, it is “personal to the victim,”²⁰⁸ which means that the only plaintiffs who can raise the issue are (1) the elder (during their life) or (2) the elder’s personal representative (on behalf of the estate after the elder dies).²⁰⁹ This creates a loophole. Often, the predicate for a financial elder abuse claim is that the defendant pressured a senior into making them a beneficiary of a will or trust.²¹⁰ In these cases, the wrongdoer usually maximizes their control over the inheritance process by also coercing the senior into naming them as personal representative.²¹¹ Then, after the victim passes away, the only person with standing to sue for elder abuse—the abuser—is most certainly not going to exercise that privilege.²¹²

Recently, two states have tried to fill this gap by expanding the class of parties who can attempt to recover damages for the estate of a deceased elder abuse victim. California and Illinois, both of which boast fast-growing senior populations,²¹³ have conferred standing upon “interested person[s]” to pursue these claims.²¹⁴

The choice between the property and status interpretations of § 1-201(23) can have a major impact on the viability of financial elder abuse lawsuits in these states. California began as a status jurisdiction state but then moved into the property camp.²¹⁵ The property position can doom some elder abuse complaints for seemingly arbitrary reasons. For example, in several cases—including Lickter v. Lickter, which I discussed in the Introduction—California courts have determined that an elder abuse plaintiff lacks standing because they inherit a fixed share, rather than a percentage, of the assets.²¹⁶ Even if these claimants won damages for the estate, they would take the same lump sum and therefore “ha[ve] no ‘interest’ . . . that could be negatively or positively affected by the elder abuse claim.”²¹⁷ Conversely, Illinois is a status jurisdiction.²¹⁸ It allows the decedent’s heirs to pursue financial elder abuse allegations even if the only thing they can obtain from the case is a sense of personal satisfaction.

To review, § 1-201(23) has become the touchstone for determining standing in some financial elder abuse cases. The next Section discusses the tension between the “interested person” requirement and the inherent power of probate judges.

C. Self-Driving Probate Courts

A final complication is the fact that probate courts can adjudicate disputes on their own. This practice is gaining momentum but coexists uneasily with the standing doctrine.

Probate courts have long defied basic intuitions about judicial power. We think of judges as machines that run on the fuel of argument supplied by rival litigants.²¹⁹ But as noted, probate courts do not operate this way.²²⁰ Most estate administrations never become adversarial;²²¹ others feature a dynamic that is almost inquisitorial.²²² Parties file a variety of ex parte requests: to validate a will, to appoint a fiduciary, to reclaim property for the estate, to identify the decedent’s heirs, to authorize the sale of land, to allow a preliminary distribution, to approve an accounting, and so on.²²³ The fact that such a pleading is unopposed does not mean that it will be granted. Instead, the probate court acts as a gatekeeper, assessing the facts and the law and denying relief when warranted.²²⁴

A budding line of authority suggests that probate judges can go even further. For one, rather than refusing to rubber stamp an ex parte petition to which nobody has objected, they can spot and pass judgment on some issues independently. For instance, several states allow probate courts to remove dishonest fiduciaries “in the absence of any motion.”²²⁵ As the Massachusetts Supreme Court explained, this authority stems from the fact that probate judges act as guardians of the estate:

Suppose a [p]robate [c]ourt should learn that an administrator has embezzled money and has become thoroughly untrustworthy. The persons entitled as distributees, let us suppose, are residents of a distant country, are without experience in affairs, and have no counsel or representative here. In such a case it would be a reproach to the law if the [p]robate [c]ourt were compelled to remain inactive until some interested person should appear and file a petition . . . .²²⁶

In addition, a few recent appellate opinions suggest that probate courts possess the inherent power to reject wills that are tainted by incapacity or undue influence.²²⁷ For example, in Estate of Sobol, a party contested a will despite admitting that he had no “interest in the outcome” and did “not stand to inherit one iota of any asset.”²²⁸ A California appellate court remarked in dicta that “nothing prevents the probate court on its own motion from raising the undue influence challenge.”²²⁹ That notion would dramatically expand probate judges’ inherent power: Unlike the ex parte matters they currently resolve, which tend to be simple and usually can be decided on the papers, incapacity and undue influence claims require full-blown trials.²³⁰

Probate judges’ ability to operate autonomously raises fundamental questions that, so far, no court or scholar has even tried to answer. For starters, the self-driving mode is hard to reconcile with the standing mandate—it is not clear how probate judges’ authority can be both constrained by § 1-201(23) and also “not limited to circumstances where it is petitioned by interested parties.”²³¹ Moreover, the ability to forgive a lack of standing seems incompatible with the well-known principle that such a defect is “jurisdictional” and, thus, “cannot be cured.”²³² Finally, standingless litigation might be constitutionally suspect in the many states that follow Article III’s justiciability requirements.²³³

To conclude, probate courts appear to have the power to rule on matters that no “interested person” has raised. So far, however, there has been no attempt to fit this doctrinal piece into the larger probate standing puzzle.

***

Section 1-201(23) now governs standing in disputes over revocable trusts and next generation elder abuse statutes. Meanwhile, a separate line of cases implies that the standing mandate is a mere default rule that probate courts can simply ignore. These developments underscore the need for reform. Thus, the next Part takes the law of probate standing down to the studs and reconstructs it.

III. Rethinking Probate Standing

This Part evaluates what the law of probate standing is and should be. It makes three claims. First, § 1-201(23) does not adopt the status theory. Indeed, the law’s text and background belie the notion that some people are inexorably interested in probate litigation.²³⁴ Instead, parties must have a personal stake in the outcome of a case to participate in it. Second, under what I call the “liberal”²³⁵ theory, probate courts should assume that disputants with contingent interests have standing. Third, dividing probate litigants into groups and subjecting each to a separate rule can solve the standing dilemmas that divide courts.

A. Statutory Interpretation

Probate standing is “a creature of statute,”²³⁶ so any analysis of the issue must begin with § 1-201(23). This Section argues that the provision does not adopt the status theory.

Judges in the status camp focus on § 1-201(23)’s text. They see its first sentence as a catalogue of litigants who are “[i]nterested person[s]”: “heirs, devisees, children, spouses, creditors, beneficiaries, and any others having a property right . . . or claim” in the case.²³⁷ By reading this language to give each named party “an unconditional right to challenge [a] will,”²³⁸ these courts claim to give the statute’s “words their ordinary and usually accepted meaning.”²³⁹ For instance, in Barrera v. Vanpelt, the Arkansas Supreme Court allowed an heir to challenge an estate plan that gave her more than her intestate share because “nothing in [§ 1-201(23)] . . . requires that the contestant’s interest must be detrimentally affected by the will.”²⁴⁰

The last-antecedent canon of construction supports the status theory. This workhorse canon instructs courts that “a qualifying phrase ordinarily modifies only the noun . . . it immediately follows.”²⁴¹ The last-antecedent principle “reflects the basic intuition that when a modifier appears at the end of a list, it is easier to apply that modifier only to the item directly before it.”²⁴² When trained upon § 1-201(23), the last-antecedent canon would limit the crucial words “having a property right in or claim against . . . the estate” to the preceding category of “any others.”²⁴³ Therefore, exactly as the status theory posits, “[i]nterested person[s]” would include “heirs, devisees, children, spouses, creditors, beneficiaries” and the miscellaneous group of “any other[]” parties who happen to possess a property right or claim.²⁴⁴

But for three reasons, the status interpretation of § 1-201(23) is unpersuasive. First, on closer inspection, this reading chafes against the statute’s text. Under the status view, each of the listed parties in § 1-201(23)—from the decedent’s “heirs” to the decedent’s “beneficiaries”—can attack a will. Yet that cannot be true for one of the enumerated groups: a decedent’s “creditors.” As noted in Section I.A.2.a, courts split over whether the creditors of an heir can contest a will that disinherits the heir.²⁴⁵ However, there is no doubt that a decedent’s creditors lack standing to contest a will.²⁴⁶ A decedent’s creditors get repaid before the personal representative distributes the estate to anyone else, which means that they are made whole “whether [a] will [i]s probated or not.”²⁴⁷ Yet the status reading of § 1-201(23) would inexplicably turn settled law on its head by allowing a decedent’s creditors to challenge a document that has no impact on their ability to collect the debt.

In addition, the status theory is hard to square with § 1-201(23)’s final sentence. The status view is a “bright-line rule,”²⁴⁸ but § 1-201(23)’s last provision emphasizes flexibility.²⁴⁹ The statute ends by stating that the meaning of “interested person[] . . . as it relates to particular persons may vary from time to time and must be determined according to the particular purposes of, and matter involved in, any proceeding.”²⁵⁰ If the specified people enjoyed standing per se, there would be no need to give courts leeway to make these case-specific determinations.

Second, two other canons of construction cut against the status perspective. One is the series-qualifier canon, the inverse of the last-antecedent canon. The series-qualifier rule teaches that “[w]hen several words are followed by a clause which is applicable as much to the first and other words as to the last, the natural construction of the language demands that the clause be read as applicable to all.”²⁵¹ Courts favor the series-qualifier canon over the last-antecedent canon if “the listed items are simple and parallel,”²⁵² which is true of § 1-201(23)’s parade of nouns: “[H]eirs, devisees, children, spouses, creditors, [and] beneficiaries.”²⁵³ Accordingly, under the series-qualifier canon, all of these parties must possess “a property right . . . or claim.”²⁵⁴

The constitutional avoidance canon also undercuts the status theory. Under this rule, “if a statute is susceptible of two reasonable constructions, one of which would raise constitutional difficulties and the other of which would not, [courts] adopt the latter construction.”²⁵⁵ Reading § 1-201(23) to embody the status perspective would create a dilemma for states that interpret their constitutions to follow federal standing rules. Many jurisdictions—including nearly all those that have adopted the status theory—hold that “[s]tanding requires some injury-in-fact to a legally cognizable interest.”²⁵⁶ Conversely, the status view authorizes a party to sue because of their identity, irrespective of whether they have been harmed. Rejecting the status theory, thus, spares judges from having to explain why it passes muster under state constitutional law.

Third, context strongly suggests that neither the architects of the UPC nor the state lawmakers who passed § 1-201(23) intended to adopt the status perspective. At common law, the status view allowed a decedent’s heirs to only attack a will.²⁵⁷ However, § 1-201(23) governs the full spectrum of probate standing issues, from objections to the opening of an estate or petitions to surcharge a fiduciary.²⁵⁸ Therefore, reading the statute to allow the listed parties to assert any claim—rather than just a will contest—would be a breathtaking extension of the status theory. Further, one of the UPC’s goals is “to make uniform the law among the various jurisdictions”²⁵⁹—given this objective, it is implausible that policymakers intended to embrace the status perspective, which had long been a fringe position.²⁶⁰

In sum, § 1-201(23) does not adopt the status view. The next section continues to unpack the meaning of “interested person” by pivoting from statutory interpretation to normative considerations.

B. Policy

This section considers what the probate standing doctrine ought to be by comparing its advantages and drawbacks. It concludes that dismissing filings by uninjured parties is defensible—but probate judges should otherwise bend over backwards to hear cases on the merits.

Any discussion of the objectives of the probate standing mandate must begin by observing that it does not serve the same purposes as its Article III counterpart. As noted, the Supreme Court claims that the standing requirement maintains the separation of powers.²⁶¹ Supposedly, by barring plaintiffs from asserting the kind of generalized grievances that are better addressed through legislation or executive action, the rule prevents courts “from undertaking tasks assigned to the political branches.”²⁶² But probate filings do not seek relief for widely disbursed harm. Instead, they hinge on fact-specific topics such as the decedent’s mental capacity or the propriety of a trustee’s business decision. Denying standing can hardly be justified on the grounds that a complaint features “abstract questions of wide public significance [that] . . . other governmental institutions may be more competent to address.”²⁶³

Admittedly, this feature is not unique to probate. The separation of powers theory of standing rings hollow when applied to any assertion of private rights.²⁶⁴ When courts resolve, say, a negligence or adverse possession case, they fulfill their constitutional duty to “decide on the rights of individuals”²⁶⁵ and therefore “do[] not threaten the power of Congress or of the President.”²⁶⁶ And yet, courts continue to demand that these disputes satisfy Article III.²⁶⁷ Accordingly, the fact that probate matters do not raise separation of powers concerns only goes so far.

However, alternative reasons for requiring standing in private rights litigation also do not apply neatly to probate. Consider the Court’s rationale that the standing rule encourages zealous advocacy and enhances the quality of judicial decisions.²⁶⁸ That logic might explain why a private rights plaintiff must be personally affected. Arguably, inviting bystanders into court would transform the steel-eyed solemnity of trials into a carefree “debating society”²⁶⁹—but this ship sailed long ago in probate. Indeed, as discussed above, the probate system values adversarialism less than other tribunals and even permits its judges to make a variety of determinations that no party has requested.²⁷⁰ Given this tradition, an inflexible principle that goes out of its way to ensure that probate cases feature dueling litigants would make little sense. Likewise, private law scholars have defended the standing doctrine on the basis that it preserves the freedom of the injured party.²⁷¹ As Timothy Liau puts it, “giving to anyone else the standing to decide whether to enforce your rights would be to put [them] in charge of you.”²⁷² Yet because probate disputes are in rem,²⁷³ parties are often forced to tolerate other people litigating claims that impact them. For instance, if nine children would prefer not to contest a parent’s will, they are powerless to stop the tenth child from doing so and will be bound by the result of the litigation.²⁷⁴ For these reasons, the policy foundations of probate standing are especially shaky.

Still, there are solid arguments in favor of excluding parties who could not possibly be affected by the outcome of a dispute. Doing so conserves resources: Because death is relentless, probate judges need to keep the conveyor belt moving—they cannot get sidetracked by claims filed by random people with nothing to gain. Similarly, litigation can be disastrous for estates. Not only does it bring the probate process to a halt, but it forces the personal representative to incur attorneys’ fees. As the D.C. Circuit observed, the standing mandate minimizes these costs and delay and, thus, likely effectuates the preferences of most decedents:

The reason for requiring an interest to set aside a will to be shown, before an attack upon the will may proceed, is that the estate of a decedent ought not be subjected to the trouble and expense of an attack, except by one who, if the attack prove successful, would have some legal claim upon the estate.²⁷⁵

Moreover, there are reasons to be skeptical of litigants who have not suffered demonstrable harm. Some of them, apparently, have axes to grind and scores to settle. Injury-free lawsuits typically arise out of vicious family quarrels, which suggests that their goal is to conscript the legal system into resolving grudges.²⁷⁶ In these cases, there are often other parties who are “interested” in the outcome and yet remain on the sidelines, raising questions about the lawsuit’s motivations.²⁷⁷ Arguably, it makes sense not to commit the finite capital of the judiciary and the estate to providing a forum for vendettas.²⁷⁸

At the same time, though, requiring litigants to be injured can give safe harbor to individuals who exploit seniors. In several of the opinions I have discussed, the standing rule handed victories to parties who had been accused of misconduct.²⁷⁹ Perhaps the most vivid illustration is Price v. Lotlikar, where a trial court found after a three-day hearing that the decedent’s nephew had misappropriated his elderly uncle’s car, house, and, on the very day the uncle died, had “ ‘r[u]n from bank to bank trying to empty’ [the uncle’s] accounts.”²⁸⁰ Nevertheless, because the plaintiffs did not take anything under the decedent’s will, they were not affected by the embezzlement, and the nephew escaped scot-free.²⁸¹ Thus, insisting that litigants be personally affected has the potential to shield wrongdoers from liability.

And crucially, going further and holding that parties who may be injured lack standing can be very problematic. For one, it runs the risk of dismissing meritorious claims based on the mere prospect that an earlier estate plan will be found valid, one beneficiary will outlive the other, or a related case will come out a certain way. Unlike plaintiffs in general civil litigation, who can refile an unripe claim once the uncertainty is resolved, parties in inheritance disputes do not have that luxury.²⁸² Instead, because the probate court’s distribution of the estate “is conclusive against the world,” people in these matters have one shot to make their voices heard.²⁸³

Also, in some contexts, dismissing a case on standing grounds undercuts the “guiding principle of American inheritance law”: honoring a decedent’s intent.²⁸⁴ The U.S. is uniquely solicitous of a testator or settlor’s wishes; almost every wills and trusts rule “derives from the premise that an owner is entitled to dispose of [their] property as [they] please[] in death as in life.”²⁸⁵ This premise means that litigants often simultaneously try to advance their own interests and a decedent’s rights.²⁸⁶ For instance, overturning a will or trust on the grounds of fraud, duress, incapacity, or undue influence restores a testator or settlor’s authentic estate plan.²⁸⁷ Likewise, removing a crooked or incompetent fiduciary achieves something that the decedent likely would have wanted to do while alive. When the probate standing doctrine keeps these claims out of court, it can thwart the decedent’s desires.

Even more troubling is the fact that some standing problems can be engineered. As noted, in some states, a contestant cannot challenge a will or a trust if there is a prior instrument under which they take nothing.²⁸⁸ But anyone who can manipulate an owner into making them the sole beneficiary of an estate plan can just as easily manipulate the owner into making them the sole beneficiary of two estate plans.²⁸⁹ Once they have done so, the second will shields the first. Similarly, a fiduciary can eliminate a beneficiary’s right to sue by paying them their inheritance. When the beneficiary receives the funds, they “no longer ha[ve] an interest in the estate that c[an] be affected by the proceeding.”²⁹⁰ In these ways, wrongdoers can create standing issues out of whole cloth.

For these reasons, a robust probate standing doctrine would be unwarranted. The rule is on its firmest footing when it bars claims filed by bystanders. But even then, it can violate the decedent’s intent and allow misconduct to go unpunished. Thus, once a litigant shows that their rights might be affected, probate courts should generally hear their claims. The next Section offers a blueprint for how courts can implement this analysis.

C. The Liberal Theory

This Section outlines the liberal theory of probate standing. It starts by refining our sense of what it means to possess a “property right” or “claim.” It then divides probate parties into three classes, argues that each should be governed by a different rule, and explains how this rubric can clarify several splits in authority.

1. “Property Right” or “Claim”

For centuries, courts have protested that the concept of having an “interest” in a case “may mean almost anything.”²⁹¹ Unfortunately, § 1-201(23) does not advance the proverbial ball by requiring litigants to have a “property right” or “claim.”²⁹² This subsection makes four points that bring these fuzzy concepts into focus.

First, the gravamen of the probate standing test is whether a party’s rights will be affected by litigation, not the overarching administration of the decedent’s assets. Although judges often frame the question as whether someone is “interested in the estate,” that is misleading.²⁹³ Consider an heir who receives more under a will than they would in intestacy. They undeniably have a “property right” in the estate since they are guaranteed to inherit something. But that does not mean that they would have standing to try to overturn the will—a claim that would make them worse off. We only reach the correct result if we focus on the dispute and ask whether a party’s rights “could be impaired, defeated, or benefited by the proceeding.”²⁹⁴

Second, the substantive law influences whether a party is “interested” in a case. Although the merits and standing are discrete, they also overlap in two crucial ways. One occurs when a plaintiff tries to invoke a rule that does not allow them to sue. When legislatures pass statutes, they typically limit the class of people who have a private right of action.²⁹⁵ For example, in most states, only a decedent’s personal representative can pursue an elder abuse claim on behalf of the estate.²⁹⁶ If a party does not meet the criteria—say, they are merely the decedent’s child and not their fiduciary—they have no “right to judicial enforcement of a legal duty.”²⁹⁷ Some courts might describe this as a merits-based decision that a litigant has failed to state a claim upon which relief can be granted,²⁹⁸ but many others describe it as a lack of “statutory standing.”²⁹⁹ Similarly, in some settings, the underlying law shapes what constitutes an injury-in-fact. For instance, because contract doctrine privileges economic values, no one would argue that the outrage felt by the victim of a broken deal is actionable harm.³⁰⁰ Conversely, the Establishment Clause prevents the state from making citizens feel alienated due to their religion,³⁰¹ and so an atheist’s anger at a city erecting a Ten Commandments monument satisfies Article III.³⁰² In these ways, the merits exerts a gravitational pull on standing.

Third, on a related front, although courts in probate cases often declare that a party’s stake “must be . . . pecuniary,”³⁰³ that maxim paints with too broad a brush. Instead, as discussed above, “[w]hether a plaintiff has standing depends on whether the law gives [them] standing.”³⁰⁴ Just as emotional distress is an injury-in-fact in a suit for violating the Establishment Clause,³⁰⁵ some inheritance-related claims do not require a party to “demonstrate that she suffered, or will suffer, a monetary loss.”³⁰⁶ For example, the no further inquiry rule allows beneficiaries to obtain rescission of a contract that is tainted by a conflict between a trustee’s personal and professional interests.³⁰⁷ The doctrine applies even if the estate broke even or came out ahead on the exchange.³⁰⁸ Likewise, fiduciaries can be removed for reasons ranging from “drunkenness”³⁰⁹ to fear that they will make “the administration of the estate difficult, ineffective, or unduly protracted.”³¹⁰ To be “interested” in a removal petition, a beneficiary simply needs to cite one of these time-honored grounds for removal—they do not need to allege that winning will increase the size of their inheritance.³¹¹

Fourth, even the chance to gain a trivial benefit should count as an “interest.” In the Article III milieu, an “identifiable trifle”³¹²—losing a penny³¹³ or receiving a single spam text message³¹⁴—is an injury-in-fact. However, in probate, some judges ignore this principle and require litigants to have a “substantial interest” in a case.³¹⁵ For example, they refuse to allow people who receive a nominal sum under a will to attack a later instrument that disinherits them.³¹⁶ This strict rubric is misguided. For starters, it reads words into the statutory definitions of “interested person.”³¹⁷ Indeed, § 1-201(23) simply focuses on whether a litigant has a “property right” or “claim” on the line—not a “property right” or “claim” of a sufficient magnitude.³¹⁸ Moreover, a higher threshold raises thankless line-drawing issues about filings that seek modest sums or hard-to-quantify benefits like forcing a fiduciary to account.³¹⁹ Thus, courts should abandon the “substantial interest” standard.

Accordingly, an “interest” must be in the outcome of the litigation, fluctuates with the substance of the dispute, and can be de minimis. The next subsection uses this definition to draw distinctions between probate litigants.

2. A Taxonomy of Interests

Probate courts can use this refined definition of “interest” to separate parties into three groups: those who are directly interested (and have standing), indirectly interested (and presumptively have standing), and uninterested (who lack standing). This subsection details this rubric, applies it to several thorny issues, and explains where probate courts’ self-driving mode fits in.

Directly Interested Parties

Some individuals are directly interested in a dispute because they will obtain a valuable right immediately if they succeed. Directly interested parties have standing, and any judge who finds otherwise commits reversible error.

There are a few straightforward examples of directly interested parties. The most intuitive, perhaps, is an heir who tries to attack a will that disinherits them.³²⁰ Since a victory at trial will permit the heir to take through intestacy—full stop—the heir is directly interested in the contest. Likewise, a current beneficiary of a will or trust is directly interested in fiduciary litigation. It does not matter whether the individual only receives a small sum from the estate or cannot prove financial harm. Instead, because the underlying law deems them to be injured by the fiduciary’s actions, they have an interest that is “substantial, direct, and immediate.”³²¹

More counterintuitively, probate courts should recognize that parties who sue on behalf of a decedent under the new elder abuse laws are often directly interested. Recall that these statutes include the abuser rule, which treats people who exploit a senior as if they are deceased for the purposes of distributing the senior’s assets.³²² Properly understood, the abuser rule has the potential to allow plaintiffs who would otherwise lack standing to bootstrap their way into court. Because someone must survive a decedent to inherit from them, the abuser penalty deletes wrongdoers from their victims’ estate plans and, thus, can transform a plaintiff with a remote interest into a plaintiff with a direct interest.³²³

Consider Estate of Lowrie³²⁴: Laura Lowrie executed a trust that gave $10,000 to her granddaughter, Lynelle Goodreau and named her as contingent beneficiary—the rest of her property went to her son, Sheldon.³²⁵ After Laura died, Lynelle accused Sheldon of committing elder abuse by forcing Laura to make gifts to him during her life.³²⁶ Sheldon responded that Lynelle was not an “interested person” because even if she won, she would inherit the same “bequest in the amount of $10,000.”³²⁷ The California Court of Appeals rejected this argument, noting that if Lynelle proved her allegations, the abuser law would kick in, give Sheldon’s share to Lynelle, and, thus, allow her to receive property that was wrongly transferred out of the estate.³²⁸ As Lowrie illustrates, the abuser remedy expands the class of elder abuse claimants who are guaranteed to obtain relief if they prevail.³²⁹

b. Indirectly Interested Parties

Other people are indirectly interested—there is no straight line between their claim and the relief they seek. Instead, they have “a hypothetical interest based on ‘uncertain future events.’ ”³³⁰ These litigants should usually have standing.

To see what makes an interest indirect, consider a variation on the disinherited heir illustration above. Suppose, now, that the heir contests the will that omits them (“Will 2”), but the testator had signed a prior will (“Will 1”) that also left nothing to the heir. The existence of Will 1 means that the heir is only indirectly interested in the attack on Will 2. Even if the heir prevails, the probate court might apply the doctrine of dependent relative revocation (“DRR”) to reinstitute Will 1. DRR revives a revoked will if doing so better effectuates the testator’s intent than continuing to treat the will as revoked.³³¹ Thus, because the beneficiary can only inherit if they jump through extra hoops—either persuading the probate judge not to apply DRR or proving that Will 1 is also void—they are indirectly interested in the challenge to Will 2.

The liberal theory assumes that indirectly interested parties have standing. As I have argued, excluding people whose rights might be impacted usually does more harm than good.³³² For example, if the heir in the scenario above contends that Will 2 was the product of fraud, undue influence, or elder abuse, denying standing could allow antisocial conduct to distort the testator’s intent. That claim deserves airtime even if resolving the entire dispute could require additional litigation over DRR or the validity of Will 1.³³³

Yet probate courts can also find that the presumption of standing has been rebutted. That might occur when the allegations do not involve misconduct, seek to undermine the decedent’s wishes, and would necessitate extensive proceedings. Imagine that the claimant in our illustration is not an heir but rather someone who would be named administrator of the decedent’s intestate estate, and that they argue that Will 2 is unenforceable because one of the witnesses signed the wrong page.³³⁴ Given the lower stakes (the litigant seeks fiduciary fees, not inheritance rights), the fact that the lawsuit might thwart the testator’s desires (the contest is predicated on a mere formality), and the need for another round of hearings even if the contestant succeeds, its benefits may not outweigh its burdens.

Allowing probate judges to have discretion—albeit guided discretion—on this topic makes sense. For one, indirectly interested parties range from those who are practically certain to be impacted by litigation to those whose stake is a theoretical possibility. Thus, an elastic test is a good fit for an issue that resists generalizations. Moreover, discretion has deep roots in the law of probate standing. The doctrine surfaced at a time when judges had leeway over the topic of locus standi.³³⁵ Even later, when courts claimed to be applying the property theory, their reasoning seems better described as case-by-case balancing of the factors I identified above.³³⁶ By acknowledging the pliability of the rule and the relevant variables instead of hiding behind the fig leaf of the property theory, the liberal theory would produce better reasoned and more consistent results.

c. Uninterested Parties

Finally, there are uninterested individuals—those who, for whatever reason, seek to participate in litigation that does not affect their rights. Subject to a caveat I discuss below, uninterested people lack standing.

A classic instance of an uninterested party is a friend who challenges the testator’s only will. That person has no stake in overturning the instrument because they take nothing in intestacy.³³⁷

Likewise, other litigants are uninterested because they lack statutory standing. The substantive law, including a jurisdiction’s probate or trust code, often limits the class of claimants who can enforce a right.³³⁸ Recall the issue that sparked the back-and-forth between the Michigan appellate and supreme courts in In re Rhea Brody Living Trust: Does a remainder beneficiary of a revocable trust have standing to sue the trustee?³³⁹ In many states, the answer can be found in a widely adopted Uniform Trust Code provision that says that when a trust is revocable, “the duties of the trustee are owed exclusively to[] the settlor.”³⁴⁰ Thus, whether conceptualized as the absence of standing or failure to state a claim, remainder beneficiaries cannot pursue fiduciary litigation until the settlor dies and the trust becomes irrevocable.

Some filings by tort defendants should also fail on statutory standing grounds. Because inheritance issues can be pivotal in § 1983 and personal injury litigation, defendants in those matters sometimes try to appear in related probate proceedings. For example, if a decedent is tortiously killed, their personal representative can elect to bring a survival lawsuit on behalf of the estate and a wrongful death claim that compensates the decedent’s heirs for their own mental anguish and financial loss.³⁴¹ Defendants try to nip these allegations in the bud by objecting to the nomination of a personal representative who is likely to sue or challenging the appointment of someone who has already litigated.³⁴² Nevertheless, as a few perceptive judges have noticed, the underlying law does not allow defendants to intervene in these cases.³⁴³ Instead, unless the personal representative is incompetent, only parties who themselves are eligible to serve as personal representative can oppose a petition to appoint someone else.³⁴⁴ Because tort defendants do not fall within this group, they lack statutory standing to pursue these claims.

d. Self-Driving Revisited

Finally, the probate standing mandate is subject to an asterisk. Once in a long while, a litigant’s allegations demand to be heard “irrespective of [their] standing.”³⁴⁵ Probate courts should consider self-driving to hear these exceptional cases.

Probate courts’ ability to resolve disputes independently fills an important gap. It is impossible to design a probate standing scheme that perfectly balances the competing concerns of efficiency and access to court. There will always be disputes that feature assertions of egregious misconduct but no “interested person.” Again, recall Price v. Lotlikar, where the executor stole from the decedent but the decedent’s siblings took nothing from the will and lacked standing to recover these assets.³⁴⁶ Even under the liberal theory, the siblings would be uninterested: If they won, they would benefit the will’s beneficiaries, not themselves. The self-driving function can prevent these matters from slipping through the cracks.

This idea is less revolutionary than it seems. First, it finds support not only in the smattering of statutes and opinions that grant probate judges this power, but also in the occasional decision that seems to bend the standing rules.³⁴⁷ Consider Estate of Pawlik³⁴⁸: Janet Pawlik died in 2003, leaving two sons, Thomas and Timothy.³⁴⁹ Neither of them filed a petition to open Janet’s estate.³⁵⁰ Nine years later, a man named Charles Bond who had obtained a judgment against Timothy asked the probate court to declare that Janet had died intestate and that her sons should inherit her property.³⁵¹ Bond’s petition prompted Thomas to produce a will that he claimed that Janet had executed in 2002 that left her entire estate to him.³⁵² However, an expert testified that Janet’s signature on the purported will had been “transferred from another document by means of cut and paste” and a witness to the will invoked her Fifth Amendment rights when asked about her involvement.³⁵³ Thus, two Minnesota courts ignored the instrument and distributed Janet’s estate to her sons, reasoning that they had conspired to “avoid payment of [the] debt.”³⁵⁴ The judges claimed that Bond had standing, but, in truth, they commandeered the case to do what Bond could not.³⁵⁵ As mentioned, only judgment lien creditors have standing to challenge a will that disinherits an indebted heir, and Bond had no lien on Timothy’s real estate.³⁵⁶ Cases like Pawlik reinforce both the existence of and the need for a safety valve in probate standing law.

Second, in some settings, widely accepted norms already permit probate judges to excuse a lack of standing. As noted, probate courts must be persuaded to grant relief.³⁵⁷ This means that they owe a duty to confirm “the genuineness of the will . . . even if no objections to probate have been filed.”³⁵⁸ If a document does not pass muster, the probate judge can reject it without regard to whether an “interested person” has opposed it.³⁵⁹ For instance, in Pawlik, the “will” introduced by Thomas was a sham, and the probate court could have refused to validate it if Bond had no stake in the result or had never appeared.³⁶⁰ Because standing can be academic, the idea of probate courts operating on their own is less of a jarring departure.

Third, although a full-throated defense of the self-driving phenomenon must wait for another day, there is a glimmer of an argument that it is constitutional even in states that base their standing doctrine on Article III. Lately, scholars have been exploring a forgotten pocket of “non-contentious” proceedings in federal courts.³⁶¹ For example, during the Civil War, Congress instructed federal judges to condemn enemy ships and award their cargo to the naval officers who had captured them.³⁶² These “prize” actions involved neither an underlying injury-in-fact nor an adverse party and were dominated by the judge, who helped develop the factual record.³⁶³ One hypothesis is that this practice was constitutional because it featured “cases” that were not “controversies.”³⁶⁴ At the time, a “case[]” may have encompassed any assertion of federal rights, whereas a “controvers[y]” required adversarialism.³⁶⁵

If Article III tolerates judge-directed “cases,” then some types of probate court self-driving might be permissible in jurisdictions that follow federal standing law. Indeed, as James Pfander has explained, prize actions were “[m]uch like probate”³⁶⁶ because “the court would test the sufficiency of the plaintiff’s factual showing in an inquisitorial proceeding that did not . . . conform to the adverse-party rhetoric that now informs modern restatements of the case-or-controversy requirement.”³⁶⁷ Although more research is necessary, the lawfulness of prize cases implies that state analogues to Article III may allow state legislatures to abandon the standing rule. In turn, state probate codes, some of which entrust probate judges with doing what is necessary to “assure that the interests of justice are served,” may allow probate courts to jettison the standing doctrine.³⁶⁸ Perhaps, then, the “case or controversy” requirement does not prevent probate courts from righting wrongs in the absence of a request by a party who has been harmed.³⁶⁹

Conclusion

The pathologies of Article III standing are well known. Indeed, the doctrine is “the Rorschach test of federal courts,”³⁷⁰ “a word game played by secret rules,”³⁷¹ and “among the most amorphous [principles] in the entire domain of public law.”³⁷² However, the equally troubled law of probate standing has languished in scholarly obscurity. This Article has remedied this omission. It has argued that the dominant views of probate standing—the status and property perspectives—are inadequate. It has also proposed an alternative approach that splits the difference between these theories. On the one hand, probate courts should almost always dismiss claims filed by people whose rights cannot be impacted by the outcome. But on the other hand, they should return to first principles and assume that anyone with a “possibility of an interest” in a dispute has standing.³⁷³ This approach can bring order to a subject that affects countless litigants and yet has been incoherent for hundreds of years.

* Martin Luther King, Jr. Professor of Law, University of California, Davis, School of Law.