Adam Hirsch’s forthcoming U.C. Davis Law Review article entitled “Will as Thing” argues that courts overemphasize the paper will and should treat it instead as evidence of an underlying bundle of testamentary rights, in the line of Hohfeld. Professor Hirsch favors wider use of harmless‑error rules, similar to those found in the Uniform Probate Code. I worry that relaxing formalities may create more legal fights over “what the decedent really meant,” but the article is interesting nonetheless.
Wills as bundles of rights?
Samuel Johnson, Legal Mind
Lately I’ve been reading more about Samuel Johnson. I just finished John Wain’s biography and am now working through Boswell’s famous 1,402-page biography. A few surprises so far: Johnson dropped out of university for lack of money, taught himself everything, and at one point essentially co-wrote a legal treatise based on his own reading. He did this more than once, across various fields. And of course, he completed his dictionary in far less time than the French Academy took for theirs.
Not True Freedom of Disposition
Kevin Bennardo’s recent article makes a simple but underemphasized point: the real organizing principle of inheritance law is not freedom of disposition, but administrability.
While courts and commentators have historically praised testamentary freedom as sacred and fundamental, the actual practice of probate prizes practicality. Testators do not control who administers their estate, cannot dictate the rules of the process, and cannot prevent heirs from entering into agreements that override the will. Even no-contest clauses are largely ignored in many states. And intestacy disregards individual intent altogether.
Interesting article and argument. But I am not sure this is novel. I do not know any attorney who really believes freedom of disposition is absolute. We all understand it comes with strong limitations. Many of those limitations are based on practicality—or as Bennardo calls it, “administrability.”
Citation: Bennardo, Kevin, Administrability Over Testamentary Freedom of Disposition (February 28, 2025). 59 University of Richmond Law Review 285 (2025), UNC Legal Studies Research Paper No. 5168167, Available at SSRN: https://ssrn.com/abstract=5168167
Second Act
Finished Second Act by Henry Oliver. A sharp reminder that age isn’t the limitation we think it is. Our limits are usually effort and curiosity. Most people aren’t working as hard as they could on their interests, and most aren’t exploring enough new ones either. The book makes a strong case for doubling down and branching out, especially later in life. Avoid complacency. Excellent read.
Touch of Evil (1958)
An interesting film from Orson Welles. The film contrasts two approaches to law and order along the U.S.–Mexico border. On one side, the Mexican authorities are represented by Charlton Heston’s character, an idealistic, procedure-bound official committed to doing things by the book. On the other side, the American side is run by Welles himself, playing a morally compromised but intuitive police captain who sometimes bends the law.
At first glance, the film appears to side with Heston’s clean-cut proceduralism. But perhaps a Straussian reading of the film may suggest that Welles’s character—despite his corruption—is the better lawman. After all, the American side of the border is under somewhat more control. The Grandi crime family controls the town on the Mexican side of the border. And don’t forget, Welles was right—Sanchez was in fact guilty. He wasn’t framing an innocent man. He was relying on instincts honed from decades of experience.
Recommended.