The Article argues that lawmakers ought to recategorize inheritance law and contract law as cognate bodies of doctrine within a larger genus of transfers law. The Article examines comparatively the justifications for freedom of contract and freedom of testation, and concludes that their underlying rationales are largely, although not entirely, symmetrical. This conclusion suggests the usefulness of comparative analysis of substantive limitations imposed on each of the two freedoms, which may prove inconsistent with each other or, what is worse, incompatible to the extent that contractual forms of transfer can functionally substitute for testamentary forms of transfer. In fact, such inconsistencies and incompatibilities do exist within several of the doctrines currently limiting a testator’s freedom to craft an estate plan. These findings suggest the need to reconcile substantive doctrines within the fields of wills and contracts, a process that will require lawmakers to redraw the boundaries of freedom of testation.
Volume 95 - No. 6
- Note: Maximizing the Min-Max Test: A Proposal To Unify the Framework for Rule 403 Decisions
- Note: Anticompetitive Until Proven Innocent: An Antitrust Proposal To Embargo Covert Patent Privateering Against Small Businesses
- New Economy, Old Biases
- Will LGBT Antidiscrimination Law Follow the Course of Race Antidiscrimination Law?
- “The More Things Change . . .”: New Moves for Legitimizing Racial Discrimination in a “Post-Race” World
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