Freedom of Testamentary Disposition

Simone Degeling, Jessica Hudson, and Irit Samet, eds., Philosophical Foundations of the Law of Trusts (Oxford University Press, Forthcoming)

37 Pages Posted: 14 Jun 2022

Date Written: June 10, 2022


American law is notoriously solicitous of property owners’ testamentary freedom. Interpretive theorists cannot but acknowledge its centrality to enabling law. Yet freedom of testamentary disposition has attracted criticism on normative grounds for centuries. Indeed, it is widely viewed as one of the most tenuous of incidents of private ownership.

This chapter examines leading arguments offered in defense of wide testamentary freedom of the sort found in American trust law. Viewed, as it has been, within conventional frames of the morality of property – its central preoccupations with autonomy, need, scarcity, and equality – testamentary freedom is widely considered morally suspect. And, indeed, as I explain, arguments from property conventions, autonomy, social utility, and obligations of provision each fail to show that laws enabling wide testamentary freedom are morally defensible.

In the chapter I suggest that testamentary freedom can be defended more robustly on the footing of the morality of gift relationships, with particular attention to the value of testamentary benefaction in enabling the expression of moral motivation, the practice of virtue, and realization of goods essential to the flourishing of a testator’s intended beneficiaries. An advantage of this approach is that it recognizes moral complexity, allowing one to appreciate the value of dispositions that track the focal moral and legal sense of benefactions as gifts, while at the same time pinpointing ways in which some dispositions prove morally defective as gifts despite their legal validity (e.g., spiteful or malicious disinheritance, wasteful or harmful inheritance) and accommodating side constraints responsive to concerns surfaced within the morality of property (e.g., regarding the interests of future generations, and the impact of inheritance on distributive justice).

Keywords: trusts; wills; trust law; charities law; express trusts; donative trusts; gift; testamentary freedom; freedom of disposition; inheritance; morality of property; morality of gift relationships; donative intention; benevolent motivation; righteous motivation; virtue; altruism; human flourishing

JEL Classification: K00, K10, K11, K12, K13, K20, K22

Suggested Citation

Miller, Paul B., Freedom of Testamentary Disposition (June 10, 2022). Simone Degeling, Jessica Hudson, and Irit Samet, eds., Philosophical Foundations of the Law of Trusts (Oxford University Press, Forthcoming), Available at SSRN: or

Paul B. Miller (Contact Author)

Notre Dame Law School ( email )

P.O. Box 780
Notre Dame, IN 46556-0780
United States


Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Abstract Views
PlumX Metrics