PropertyProf Blog

Editor: Stephen Clowney
Univ. of Arkansas, Fayetteville

A Member of the Law Professor Blogs Network

Thursday, February 6, 2014

Kelly on the Freedom to Gift Property at Death

KellydDaniel Kelly (Notre Dame Law School) has posted Restricting Testamentary Freedom: Ex Ante Versus Ex Post Justifications (Fordham Law Review) on SSRN.  Here's the abstract:

The organizing principle of American succession law—testamentary freedom—gives decedents a nearly unrestricted right to dispose of property. After surveying the justifications for testamentary freedom, I examine the circumstances in which it may be socially beneficial for courts to alter wills, trusts, and other gratuitous transfers at death: imperfect information, negative externalities, and intergenerational equity. These justifications correspond with many existing limitations on the freedom of testation. Yet, disregarding donor intent to maximize the donees’ ex post interests, an increasingly common justification for intervention, is socially undesirable. Doing so ignores important ex ante considerations, including a donor’s happiness, a donor’s incentive to work, save, and invest, and the structure and timing of a donor’s gifts. If donors believe courts may not facilitate their intent, donors may be less happy, accumulate less property, and alter gifts during life. Moreover, because the law often affects donor behavior, ignoring donative intent to benefit particular donees may harm not only the donors but also donees as a class. Thus, the living may themselves benefit if the law allows a certain degree of “dead hand” control.

http://lawprofessors.typepad.com/property/2014/02/kelly-on-the-freedom-to-gift-property-at-death.html

| Permalink

TrackBack URL for this entry:

http://www.typepad.com/services/trackback/6a00d8341bfae553ef01a73d709fdb970d

Listed below are links to weblogs that reference Kelly on the Freedom to Gift Property at Death:

Comments

Post a comment