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Publication Date

5-1997

Document Type

Article

Abstract

The issue of so-called negative disinheritance arises when a testator provides in her will that a particular person or persons (whom I shall call the "negative beneficiary(s)") shall take none of the testator's property upon her death. Under the orthodox (and still almost universal) rule, such a disinheritance provision is ineffective. If the negative beneficiary becomes the testator's heir and some property passes in intestacy (because the testator has not named or described beneficiaries for all her property), the negative beneficiary will take his intestate share of that property. Thus, under the orthodox rule, a testator can prevent an heir from taking in intestacy only by making affirmative dispositions of all the testator's property.

Despite its condemnation by a commentator, the orthodox rule continues to be enthusiastically endorsed by the courts. The cases in which it is rejected are extremely few. Yet those who condemn the rule have not explained its attraction. Appeals for judicial or legislative reform will likely fail unless the rule's appeal is exposed and refuted. In this Article, I seek to do so.

My argument, in short, is that the rule denying effect to a disinheritance provision is a consequence of the fact that the courts have implicitly rejected one model of the will in favor of another. The rejected model-the will as a directive-represents the will (obviously enough) as the testator's instructions regarding ownership of her property after her death. Under the model implicitly favored by the courts, the will as a declaration, the will is, in effect, a post-mortem deed, an instrument creating ownership. Such a model is very uncongenial to a disinheritance provision. Moreover, the proposals for reform-what I shall call the "standard remedies" for the orthodox rule-will not be successful unless the courts abandon the declaration model in favor of the directive model.

In Part I of this Article, I consider the possible justifications for the orthodox rule. In Part II, I describe the directive model of the will and discuss its implications for the effectiveness of a disinheritance provision. In Part III, I do the same for the declaration model. In Part IV, I show that the judicial treatment of disinheritance provisions reflects the declaration model. In Part V, I discuss the deficiencies of the standard remedies. Finally, in Part VI, I recapitulate what the preceding discussion implies: Judicial adoption of the directive model of the will provides the best, and probably the only, path to reform.

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