Restricting Testamentary Freedom: Ex Ante Versus Ex Post Justifications

62 Pages Posted: 24 Jan 2012 Last revised: 6 Feb 2014

Date Written: December 23, 2013


The organizing principle of American succession law — testamentary freedom — gives decedents a nearly unrestricted right to dispose of property. After surveying the justifications for testamentary freedom, I examine the circumstances in which it may be socially beneficial for courts to alter wills, trusts, and other gratuitous transfers at death: imperfect information, negative externalities, and intergenerational equity. These justifications correspond with many existing limitations on the freedom of testation. Yet, disregarding donor intent to maximize the donees’ ex post interests, an increasingly common justification for intervention, is socially undesirable. Doing so ignores important ex ante considerations, including a donor’s happiness, a donor’s incentive to work, save, and invest, and the structure and timing of a donor’s gifts. If donors believe courts may not facilitate their intent, donors may be less happy, accumulate less property, and alter gifts during life. Moreover, because the law often affects donor behavior, ignoring donative intent to benefit particular donees may harm not only the donors but also donees as a class. Thus, the living may themselves benefit if the law allows a certain degree of “dead hand” control.

Keywords: testamentary freedom, dead hand, social welfare, ex ante, ex post, property, bequests, inheritance, wills, trusts, probate, nonprobate, imperfect information, negative externalities, intergenerational equity, succession law

JEL Classification: K11

Suggested Citation

Kelly, Daniel B., Restricting Testamentary Freedom: Ex Ante Versus Ex Post Justifications (December 23, 2013). 82 Fordham Law Review 1125 (December 2013), Notre Dame Legal Studies Paper No. 1406, Available at SSRN: or

Daniel B. Kelly (Contact Author)

Notre Dame Law School ( email )

P.O. Box 780
Notre Dame, IN 46556-0780
United States
574-631-7690 (Phone)
574-631-8078 (Fax)

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