Deliberative Accountability Rules in Inheritance Law: Promoting Accountable Estate Planning
College of Law and Business
October 25, 2011
University of Michigan Journal of Law Reform, Vol. 45, No. 4, 2012
In the last few decades, the emerging trend in trust and estate law has been a steady loosening of the limitations on testamentary freedom. The 1990 Uniform Probate Code pioneered some of these developments. Construction rules are no exception. It is widely accepted that testamentary construction rules should track the owner’s presumed intent. In this article, I argue that there is also room, alongside these intent-furthering rules, for intent-defeating rules in inheritance law. A property owner lacks incentives to internalize the relational, familial, or economic effects of her allocation. Such rules, termed deliberative accountability rules, are therefore designed to foster accountability in estate planning. These rules burden the owner with requirements to think her decision through, and to give reasons for and face the relational consequences of her act. These rules work to counterbalance the freedom of the owner by requiring her to make an informed decision.
Number of Pages in PDF File: 28
Keywords: Inheritance, Accountability, Penalty Rules, Construction Rules, Testamentary Freedom
Date posted: August 13, 2012