Protecting Freedom of Testation: A Proposal for Law Reform

49 Pages Posted: 28 Aug 2013 Last revised: 7 Mar 2014

See all articles by Eike Götz Hosemann

Eike Götz Hosemann

Max Planck Institute for Comparative and International Private Law

Date Written: July 26, 2013

Abstract

This article addresses a problem ever more pressing in wealthy and aging societies like the United States: interference with freedom of testation by the use of wrongful means such as undue influence or will forgery to acquire benefits through inheritance. A detailed analysis of the remedies against interference with freedom of testation under inheritance law, tort law, and equity reveals that there is currently a significant under-deterrence of this undesirable behaviour. Hence, this article proposes a new remedy in order to protect freedom of testation more effectively: a disinheritance statute barring wrongdoers that have infringed upon someone's freedom of testation from inheriting from their victims, not unlike the slayer statutes adopted by many state legislators in order to deal with "murdering heirs". This statutory prohibition against inheritance in cases of interference with freedom of testation would do more than alleviate the identified under-deterrence problem. The proposed legislative reform would also conform with an important principle of American law: the idea that no one should profit from his wrongdoing. In addition, arguments in favour of the suggested proposal can also be made by reference to the general trend towards a behaviour-based inheritance regime and in view of the availability of similar rules in jurisdictions outside the United States.

Acknowledgement: This article is published in this Research Paper Series with the permission of the rights owner, University of Michigan Journal of Law Reform.

Keywords: Inheritance, Freedom of Testation, Interference, Undue Influence, Will Forgery, Disappointed Heir, Will Contest, Constructive Trust, Tort, Disinheritance, Slayer Statute, Murdering Heir, Unworthiness to Inherit, Comparative Law, Law Reform

Suggested Citation

Hosemann, Eike Götz, Protecting Freedom of Testation: A Proposal for Law Reform (July 26, 2013). University of Michigan Journal of Law Reform (U. Mich. J.L. Reform), Vol. 47, No. 2, pp. 419-466, 2014; Max Planck Private Law Research Paper No. 13/24. Available at SSRN: https://ssrn.com/abstract=2313049

Eike Götz Hosemann (Contact Author)

Max Planck Institute for Comparative and International Private Law ( email )

Mittelweg 187
Hamburg, D-20148
Germany

HOME PAGE: http://www.mpipriv.de/en/pub/academic_staff/research_fellows/hosemann_eike_goetz_.cfm

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