Family disputes over inheritance date back at least as early as Biblical times, when the younger brother Jacob, by use of deception, received the inheritance from his father Abraham over his elder brother Esau.¹ Probate litigation, which is commonly known as the “will contest,” has changed, albeit slowly, in both ancient and modern times. It has been rightfully observed that “this area of practice is a melting pot of presumptions, exceptions, threshold hurdles, capacity qualms, evidentiary issues, strategic clauses, and countless other headache-inducing legal issues—yet attorneys must diligently juggle all of them while also maintaining their clients’ confidence and trust.”²

Since the publication of the authors’ original law review article, Laying Claim: A Practitioner’s Guide to Will Contests in West Virginia,³ in 1993, several noteworthy statutory enactments and judicial decisions have occurred which affect this important area of law. In this article, the authors wish to supplement and update their original article in order to advise practitioners of developments in the probate arena and to make academic commentary on them.

Consider the following scenario. A homeowner hires a pest-control contractor to spray a gallon of pesticide around the outside of the homeowner’s house. The homeowner signs a contract provided by the contractor which requires the contractor to apply the pesticide in a manner consistent with the pesticide’s labelling. However, instead of spraying one gallon of pesticide around the outside the house, the contractor inexplicably (and contrary to the labelling) sprays 500 gallons of highly toxic pesticide inside the house, causing a fire that destroys the house. The homeowner sues the contractor for the negligence of his work only to lose at summary judgment because the court held that “the gist of the action” was really a breach of the contract that the homeowner signed, not a negligence claim (despite the homeowner’s protests to the contrary). Perhaps the homeowner can recover some measure of the money he paid for the contracting services due to the contractor’s breach of his promise to apply pesticide in a proper manner, but he can recover nothing for his destroyed house.

How public policy is made has long been of interest to those who study politics and law. Public policy takes the form of legislation, executive orders, local ordinances, court decisions, administrative rulemaking, and other actions taken by public institutions. Given our constitutional framework and representative democracy, much of our interest in policymaking focuses on the legislative process, whether in Congress or in statehouses across the nation. Among the subjects to be considered in relationship to legislative processes and politics is the manner in which legislation is developed. There is a substantial interest in studying the process by which policy evolves from an idea to finished form. In this regard, a priority is to understand the nature of the policymaking process and the features of its landscape. A very popular approach has been to map the stages of policy development through issue definition or agenda setting, to proposal development, and subsequent phases of policy adoption, implementation, and evaluation.¹ This heuristic has influenced both theoretical analyses and practical guides to policymaking. The foci of attention and the intended audiences of these works vary, but when considered collectively, distilled into common principles, and adapted to the realities of legislative policymaking, they can be very helpful in developing a “checklist” to aid in developing legislation.  This article provides a checklist of twelve diagnostic questions that combines an appreciation for the underlying institutional, political, and practical matters that shape the development of legislation. Further, the checklist encourages those developing policy to be searching in considering analogs, comparative experiences, and in forecasting policy implementation needs to aide in creating and proposing legislation.

The purpose of this Article is to provide those advocating or considering proposed policy action with a set of twelve diagnostic questions. The list draws on the policy process model described above as well as various descriptions and guides to how policy should be made, analyzed, and evaluated.² This checklist can be a useful aid in making sound policy decisions and in evaluating proposals that are put forth by others.  The Checklist comprises of the following questions: