Enforcing Family Promises : Reliance, Reciprocity, and Relational Contract

Courts are willing, in commercial contests, to enforce promises even without consideration when enforcement supports a norm of reciprocity -- a norm which recognizes that such promises are seldom totally gratuitous, but are often made in furtherance of reciprocal, long-term, trust-based relationships. In this article, Professor Leslie argues that relational contract principles are firmly embedded in wills law. Courts enforce the reciprocity norm in the family context just as they do in commercial contexts; this enforcement is seen, however, not in breach of promise suits, which occur rarely between family members, but rather in will contests. Despite the prevalent ideology of wills law, in which the testator's intent is paramount, Professor Leslie argues that courts bend doctrinal rules to validate wills that comply with the reciprocity norm and to invalidate those that do not. Finally, Professor Leslie examines whether courts are justified in implicitly reinforcing the norm. She concludes that implicit enforcement rewards family members who have relied on trust, while avoiding commodification that might occur at the margins if the enforcement rule were made explicit