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Volume 7

May 2011

scientia   IZ mundus

Number 1

Looking At Things Differently Changes What You See

Steve Wexler

I am a professor of law and legal philosophy at the University of British Columbia. One of the things I teach is succession law, the law of wills and intestacy. I have taught it for 25 years and this year, in my succession class, I had a personal experience that taught me, in a very graphic way, the major lesson of modern legal philosophy: looking at things differently changes what you see.

I'm not sure you can learn this lesson from hearing about my experience. It may be something you have to learn for yourself through your own experience, but I was amazed by what happened to me and I found it very interesting. In order to explain it, I will have to talk later in this article about some of the technicalities of succession law in British Columbia. These technicalities can, of course, only be of interest to local lawyers, but the technicalities of British Columbia succession law (actually, as we will see of the two British Columbia succession laws) are similar to the technicalities of the succession law in every jurisdiction and whatever jurisdiction you are in, your succession law is one of the two most technical areas in your law; the other is tax. This article is not about particular technicalities; it is about technicality. It is also about "norms", "paradigms", "contexts" and "nuances": all the terms that are so important in modern legal philosophy.

The experience from which I learned so much began in 2009, when the legislature of British Columbia passed a new Wills, Estates and Successions Act. WESA, as the new act is called, substantially changes the subject I have been teaching for 25 years, but though it has been enacted, WESA will not come into force for at least two years. It will take at least that long to create the new procedures this very technical act mandates and generate the new forms required by those procedures. Since the old law will remain in force until the new law is proclaimed, I had to teach both of them this year.

The philosophical lesson I learned came not so much from having to teach the old law and the new law together, but from learning the two in very different ways. I learned the old law 25 years ago, right after I had returned from a month at the Harry Wendelstet Baseball Umpire School in Daytona Beach Florida; umpire school had a big influence on how I learned succession law and how I taught it.

I was in my 40s when I went to umpire school; I had been umping in my sons' little league and I wanted to upgrade my skills. Most of the other students were in their late teens and early 20s. They were bigger than me and faster than me and their instinct for the game was better than mine. Many were ex-ball players who couldn't hit the curve. To stay in the game, they were trying to get jobs as pro-umps. That was the school's main purpose - to produce young umps, who could get hired to do A ball for a few years, then double A for a few more, then triple A for a few more after that, and then finally, after 10 or 12 years of apprenticeship, they might make it to the big leagues. and the first thing I saw there was that I was not going to be the best ump.

I wanted to do well at umpire school, but I didn't want to be a pro-ump; as a law professor, I already had the best job there ever was. Though it was quickly apparent that I would not be the best ump on the field, it also was quickly apparent that I could be the best ump on the rules. An ability to learn rules - the uptake of systems - is a strength we law professors have in spades.

Before we went to the fields each day, we had a class on the rules. I worked very hard to learn them. Every night, I studied the material for the next day, and every morning I came to class, primed with questions about the rules we were going to study: what if such and so? what if such and so? These were the kinds of questions only a lawyer might ask and one rainy afternoon, when we had to come in from the fields early, the subject of lawyers came up in an informal "class" with John Hirschbeck, the rules instructor. (He was one of the umps in the 2010 World Series.)

To start off the meeting, Hirschbeck asked, "Is any one here a lawyer?"

Now, I am a law professor, not a lawyer, but I knew what Hirschbeck meant, so not being a lawyer, I put up my hand.

"Ahh, Wexler," Hirschbeck said, "I thought so. Look. You're going at this the wrong way. You're treating these rules like they were written by somebody intelligent for somebody intelligent. They're just the rules of baseball. Just learn 'em."

This is positivism in a nutshell and I went back to law school with some new ideas about law and how to teach it. When the head of my faculty asked me if I would teach succession law, I said yes. I had never studied it before and knew nothing about it, but I audited a course taught by someone else in the Spring semester and then, in the Fall, I taught the course myself. About three classes into my first time teaching the course, I reached the high point of my career as a positivist law professor. A woman student came up to me after class and said: "I didn't like that law you were teaching us today, sir."

"You're not here to like it or dislike it," I said. "Just learn it."

That attitude came from umpire school and along with the attitude, I had learned a technique for teaching rules. Each morning at umpire school, before the class started, we were given a multiple choice/short answer quiz on the rules we'd learned the day before.

Runners on 1st and 3rd, one out. The ball is hit to medium center and caught on the fly. The runners tag. There's a throw to the plate which is cut off and the ball is thrown to 2nd. The runner from 3rd crosses the plate. The runner from 1st gets in a run-down and is tagged out. On appeal, the runner from 1st is declared to have left too soon. Does the run score?

After we did the quizzes we passed them to the right and back one row or one to the left and up two rows. Then Hirschbeck told us the answers and we graded each other's papers. Then the school collected all the quizzes and whoever got the most questions right won a trophy. I set myself to win that trophy. It's in my basement now, inscribed:




Steve Wexler


It marks the fact that I got 238 out of 239 multiple choice/short answer questions on the rules of baseball correct. I broke the record. I don't know if my record has been broken since.

The question I got wrong was:

The first batter hits the first pitch over the fence for a home run. Then the umpire notices that there are only eight defensive players on the field. What does he do?

My answer was:

The first rule in the rule book is that baseball is a game for two teams of nine players. The game should not have begun. Technically, the umpire should disallow the home run and start the game again, but that would penalize the offensive team for a mistake by the defensive team, so he should not do that. He has to allow the run to stand.

The "but" and everything that follows it was wrong.

As a legal philosopher, I would point to the word "technically" in my answer and notice that the right answer is positivist; the wrong answer, the part after the "but", is natural law, and as a matter of realism, no umpire would actually disallow the home run, because to do so would require him to admit that he had made a mistake and called: "Play ball," without noticing that there wasn't a whole team on the field.

25 years ago, I learned succession law and built my course following the model of rules I had learned at umpire school. For 25 years, I taught succession law as a set of rules for an elaborate game and gave non-credit multiple choice/short answer quizzes after every chapter.

A is 60. His will says: "I leave $200,000 to my wife. I leave the rest of my estate to my friend Claudine and if she dies before me, I leave the rest of my estate to my older brother Charles." Claudine, who is 20, dies in a car wreck with A and Charles, who has no spouse or issue. Who takes the remainder of A's estate:

  1. A's wife;
  2. Claudine's estate;
  3. Charles' estate;
  4. A's other brother.

After each quiz, we reviewed the answers. The answer to the question about A's estate turns on a tricky little section of the old law which is replicated in WESA. I will not explain that technicality here or give the answer to the question. Suffice it to say, I think my students have a better chance of learning that tricky little rule - and all the other tricky little rules of succession law - if I teach them those rules, quiz them on the rules I've taught them and then discuss the answers with them. This gives them at least three shots at learning the law.

Every year, at the end of my course, I give a closed-book examination. I expect my students to know the rules I taught them. My exams are like my quizzes only more elaborate; the questions involve the application of many rules along with other rules. They are like puzzles. For 25 years, as much as possible, I have taught succession law as if it were the answers to a set of multiple choice/short answer questions. This has been possible because most of succession law is highly technical and discretion is largely not allowed. For instance,

A dies intestate with a spouse and two children. What does the spouse get?

There is one and only one answer to that question. In most of law, you have to say "it depends ...". Here, there is no "it depends". The spouse gets $65,000, plus a third of the reminder of the estate, plus the furnishings in the matrimonial home, plus a life estate in the matrimonial home. If there was one child, the spouse would get $65,000, plus a half of the reminder of the estate, plus the furnishings in the matrimonial home, plus a life estate in the matrimonial home. I dare say, a similar formula exists in every jurisdiction. My students need to know the formula in British Columbia. I get them to recite it out loud with me in several classes to make sure they learn it; at umpire school, we practiced calling: "He's out."

Under WESA, there is a new formula, but under this formula, you have to say "it depends". Just as I had my students learn the old formula, I had them learn the new one: the spouse gets the furnishings in the matrimonial home, $150,000 or $300,000 (depending on whether the spouse is the parent of all the children) plus a right to purchase the spousal home, but at its discretion, a court may order that the spouse gets the spousal home without having to pay for it.

Notice that there are two "it depends" in this formula. The first, which is made explicit, is that parents and step-parents are treated differently. The reason for this is obvious, but think how it would insult a stepmother who had raised her husband's three kids from the time they were little. Technical rules have to insult somebody; they have to give the wrong result in some cases. Socrates and Aristotle noticed this 2000 year ago.

The second "it depends" is the discretion given to the courts. This discretion is symbolic of WESA because one of WESA's fundamental purposes is to allow discretion precisely where none used to be allowed. This means that there are two answers to many of the questions that used to have only one.

For example, s. 43 (1) of WESA says, just as the old law did, that if a beneficiary under a will or the spouse of a beneficiary signs the will as a witness, all gifts to that beneficiary are void, but WESA goes on to say:

43 (4) On application, the court may declare that a gift to a person referred to in subsection (1) is not void and is to take effect, if the court is satisfied that the will-maker intended to make the gift to the person even though the person was a witness to the will.

Until WESA comes into force, the policy of the law, as enunciated over and over again by the courts, is that no matter how clear the testator's intention is, no court has the jurisdiction to give effect to a beneficiary's gift if the beneficiary or the beneficiary's spouse signed as a witness.1 Courts have applied this rule, even when it was clear that the testator intended the gift to go to the person who signed as a witness.

This formalistic, technical attitude toward the law - the courts are supposed to apply the rules and not exercise discretion - has been the policy of succession law since the Wills Act, 1837. It has led to many infamous decisions: cases in which judges went against common sense in the name of following the letter of the rules. Succession law has been notorious as either the most strictly formalistic and rule-bound area of law, or the second most, beaten only by tax law.

Though WESA itself a very technical act, it reverses the traditional rule-bound, anti-discretionary policy of succession law. WESA is at once for and against technicality. This division in basic attitude runs everywhere in the statute and affects more than just beneficiaries who sign as witnesses. When WESA is put into force, the courts will have discretion to change the language in a will if the will doesn't say what the testator intended it to say. This was absolutely forbidden under the old law.

No one can doubt as to the testatrix's "intention" in the loose sense of the word. No one can suppose that she really meant not to give her property to Wing, if her husband and herself should happen to die at the same moment. No one doubts, that, had she thought of such a possibility at the time she made her will, she would have provided for it by express words.

The law allows people to make wills precisely so that it can give effect to their intentions about who will get their property when they die, but the judges in Wing v. Angrave, 1860 11 E.R. 397, said that even though they were certain the testator's real intention was to give her property to Wing, they were required by law to gather her legal intention from the words used in her will.

It is impossible to overstate the importance of steadily and faithfully adhering to this rule, for the sake of the great interests of society in avoiding litigation, and affording the best chance of obtaining as much certainty in the construction of wills as the subject is capable of.

When WESA comes into force, the courts will also have discretion to say that a will which was not executed with the formalities required by the act, is nevertheless a valid will. Again, this was something the courts were never allowed to do under the old law.

Teaching the old law and the new law side-by-side turned succession law into legal philosophy; it may have made my course this year the most interesting one I've taught in over 40 years as a law professor. I went into my succession class knowing the old rules at least as well as I knew the rules of baseball when I won the trophy at umpire school. I knew the answers to all the multiple choice/short answer questions. I didn't know the new law nearly as well. I had studied it over the summer and learned it as well as I could, but I certainly didn't know it the way I knew the old law.

With the old law, I knew all the answers. With the new law, I did not know all the answers: no one knew all the answers because no one could know them. Many of the answers have not yet been created. The old law has been more or less the same for a long time; the courts have interpreted all the statutes and built up precedents. None of this has even begun to happen with WESA. Since the law and its interpretation are one thing, no one knows the new law; no one knows what the courts will do with WESA.

More important, my attitude to law has changed since umpire school. When I learned the old law, I learned it as the rules of a game. When I learned the new law, I learned it as the rules in a joke. I couldn't help it. WESA refuses to use the word "testator". Instead, it uses "will-maker," which it actually defines as "a person who makes a will."

I can't help it. I think that's funny. I also think it's funny that WESA says a witness must be 19 years of age - something the old law did not say - but it also says that a will is not invalid solely because a witness did not have legal capacity. This would be as if the rules of baseball said, a runner is out if the ball hits him in fair territory, but a runner is not out solely because a ball hit him in fair territory.

I look at law differently now. My teaching of legal philosophy has moved from the study of burden of proof to the study of Aristotle and from the study of Aristotle to the study of anomaly. I am writing a book called Anomaly in Law and from the first time I read WESA, I saw it as a cornucopia of anomaly. It was from that point of view that I learned the new law and taught it.

The amazing experience I had in my succession class this year was that, somehow, not knowing the new law unraveled my knowledge of the old law. Suddenly, students started asking me questions that I couldn't answer about the old law. I expected questions I couldn't answer about the new law, but not being able to answer questions about the old law? That was brand new for me!

The first question I couldn't answer had to do with what a spouse took on an intestacy if there were children. As I have explained, I made my classes learn to recite, "the spouse of an intestate who dies with issue takes the first $65,000, plus a 1/2 or 1/3 of the rest of the estate, plus the household furnishings, plus a life interest in the matrimonial home."

Like all their predecessors, my students this year learned to recite this mantra. Then one of them asked me: "Does the rest of the estate include a personal savings retirement plan for which the intestate names a beneficiary?"

I couldn't believe it! I didn't know the answer to that question! Suppose the intestate names the spouse as the beneficiary under the retirement plan. Does the spouse get 100% of those funds? Or only 1/2 or 1/3? And what about the retirement plan at work funded by the intestate's employer? Is that part of the "rest of the estate" that the spouse gets a half or a third of? Or does the spouse get a hundred percent if the spouse is the named beneficiary and zero percent if the spouse is not? What about medical benefits?

I did some research. These questions turn out to be quite hard to answer; indeed, some of them may not have any answers at all, but the important point for me was not the answers. It was that I had never seen the questions before.

There were other questions like this. For instance, under the old law if the spouses were divorced before the death of the intestate, the spouse did not get anything. If the spouses had been separated for a year before the death, the same rule applied, but the separated spouse was entitled to apply for a share. This was one area in which the old law did allow the courts to exercise discretion.

"Did that discretion," a student asked me, "apply to separated common-law spouses?"

My initial reaction was: "Yes, of course. The law treats common law spouses the same way it treats legally married spouses."

Then the student pointed out that WESA said:

2 (2) Two persons cease to be spouses of each other for the purposes of this Act, if

    (b) in the case of a marriage-like relationship, one or both persons terminate the relationship.

Suddenly, I saw that the same thing must have been true under the old law. I hadn't realized this but I have now come to think that even under the old law, there can be no such thing as a "separated common-law spouse". It's a contradiction in terms.

Once again, however, the important point for me is not the answer to the question, but the fact that I had never seen the question as a question.

Now you might say my knowledge of the old law wasn't as perfect as I thought it was; indeed, you might even say that my knowledge of the old law wasn't as good as it should have been. But until this year, I had never run into questions I couldn't answer, and this year, suddenly, my students asked me several of them.

How did this happen? How did not knowing the new law unravel my knowledge of the old law?

I puzzled over this problem for quite a while; I talked to colleagues about it, and raised it for discussion in both my succession law and legal philosophy classes. I have finally come to an answer. When I learned the old law, I learned it as the rules of a game. When I learned the new law, I learned it as a joke. I learned it by "deconstructing" it. I learned it by looking for its incoherencies and inconsistencies. I gave up not only the idea that the law had been written by somebody intelligent for somebody intelligent; I came to regard it as having been written by fools for fools.

I'm proud to say my students picked up on this. They started deconstructing the old law; soon it lay in rubble at our feet. The important point in all this, the philosophical lesson I take away from it, is that looking at things differently changes what you see. Law is coherent, if you think it's coherent; if you think it's not, it's not.

1. If there are two other independent witnesses, that validates the gift.

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