June 2013 Vol. 111 No. 8 THE REVIEW

Incomplete Wills

Adam J. Hirsch

This Article explores the problems that arise when a will fails to dispose of an individual's entire estate, so that she dies partially testate and partially intestate. The questions then raised include (1) whether provisions contained in the will purporting to redefine the individual's intestate heirs should supersede the statutory designations of those heirs, (2) whether inter vivos gifts to heirs should qualify as advancements on the inheritances of those heirs under conditions of partial intestacy, and, most broadly, (3) whether courts should fill in the incomplete portion of an individual's estate plan by extrapolating from the distributive preferences set out in the fragmentary will or by independent reference to the statutory rules of intestacy. The intent of testators is bound to vary on each of these points, this Article argues. In order to account for this predictable variation, lawmakers should grant courts limited discretion to resolve each of these issues on a case-by-case basis, taking into consideration both intrinsic and extrinsic evidence. Such an approach would differentiate the rules of partial intestacy from complete intestacy, which operates according to mechanical rules. This Article suggests policy reasons for drawing that distinction. The Article supports its analysis with empirical evidence drawn from data sets of published cases, a resource not previously exploited in connection with quantitative studies of inheritance law.

   //  VIEW PDF
& Other Current Events

Protecting Whistleblower Protections in the Dodd-Frank Act

In 2008, the United States fell into its worst economic recession in over seventy years. In response,...

A Comprehensive Administrative Solution to the Armed Career Criminal Act Debacle

For thirty years, the Armed Career Criminal Act ("ACCA") has imposed a fifteen-year mandatory minimum...

Rethinking the Timing of Capital Clemency

This Article reviews every capital clemency over the last four decades. It demonstrates that in the majority...

The Political Safeguards of Horizontal Federalism

For decades, we have debated whether "political safeguards" preserve healthy relations between the states...

A Solution to Michigan's Child Shackling Problem

Detained children routinely appear before Michigan's juvenile courts shackled with handcuffs, leg irons,...
MAILING LIST
Sign Up to Join Our Mailing List