Kevin Bennardo’s recent article entitled “Administrability Over Testamentary Freedom of Disposition” 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.”