What's Wrong with Partial Intestacy?
47 Pages Posted: 3 Aug 2017
Date Written: July 31, 2017
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
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