What's Wrong with Partial Intestacy?

47 Pages Posted: 3 Aug 2017

See all articles by Richard F. Storrow

Richard F. Storrow

City University of New York School of Law

Date Written: July 31, 2017

Abstract

This article questions whether wills law’s disapproval of partial intestacy rests on defensible assumptions about testamentary intent. After examining the causes of and antidotes to partial intestacy, I make three primary points. First, the presumption against intestacy applies only to wills that contain an ambiguous bequest of the residue. Second, the law’s disapproval of partial intestacy is due in part to its failure to make an important distinction between testamentary intention and dispositive intention. Third, a theory of passive intention, heretofore barely alluded to in the law of wills, supplies the necessary validation of partially intestate estates.

Keywords: intestacy, wills, testamentary intent, dispositive intent, passive intent, residuary bequests, pretermission, reformation, anti-lapse, dependent relative revocation, future interests, gifts by implication

Suggested Citation

Storrow, Richard F., What's Wrong with Partial Intestacy? (July 31, 2017). Marquette Law Review, Vol. 100, No. 4, 2017. Available at SSRN: https://ssrn.com/abstract=3011824

Richard F. Storrow (Contact Author)

City University of New York School of Law ( email )

2 Court Square
Long Island City, NY 11101-4356
United States
(718) 340-4538 (Phone)

HOME PAGE: http://www.law.cuny.edu/faculty/directory/storrow.html

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