Freedom of Testation/Freedom of Contract
Adam J. Hirsch
University of San Diego
May 12, 2010
Minnesota Law Review, Forthcoming
FSU College of Law, Public Law Research Paper No. 449
FSU College of Law, Law, Business & Economics Paper No. 10-10
This Article argues that lawmakers ought to recategorize inheritance law and contracts law as cognate bodies of doctrine within a larger genus of transfers law. The Article proceeds to examine comparatively the justifications for freedom of contracts and freedom of testation, concluding that their underlying rationales are largely, although not entirely, symmetrical. This conclusion suggests the usefulness of comparative analysis of substantive limitations imposed on each of the two freedoms, which may prove inconsistent with each other or, what is worse, incompatible to the extent that contractual forms of transfer can functionally substitute for testamentary forms of transfer. In fact, such inconsistencies and incompatibilities do exist within several of the doctrines currently limiting a testator's freedom to craft an estate plan. These findings suggest the need to reconcile substantive doctrines within the fields of wills and contracts, a process that will require lawmakers to redraw the boundaries of freedom of testation.
Number of Pages in PDF File: 74
Keywords: freedom of contract, freedom of testation, conditional bequests, no-contest clauses, in terrorem clauses, slayer statutes, capricious purposes, noncharitable purposes, elective share, inheritance rights of children, future interests, trust modification
JEL Classification: K11, K12, K19, K30, K39
Date posted: May 13, 2010 ; Last revised: July 4, 2011
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