Law of Wills, 2016A

Part II —The Testacy System
Chapter Seven: Testamentary Freedom
7.1 Introduction
A person spends a lifetime accumulating property. Some people acquire more resources than
others. Nonetheless, regardless of the size of the estate, the one who accrues the property wants to
control what happens to it after he or she dies. The majority of people transfer their property using
non-probate instruments like trusts, joint bank accounts and life insurance. In legal terms, property
consists of a bundle of sticks or rights, including the right to include, the right to exclude, and the
right to dispose. It is clear that, during life, a person has a right to dispose of his or her property by
gift or sale. Should the right to dispose of property survive the death of the owner of that property?
The right to dispose of property at death is a separate property right that belongs to the owner of
the property. Therefore, as long as the person complies with the law, he or she has the right to
control the distribution of his or her property. However, testamentary freedom is not absolute
because preexisting obligations may have priority over testamentary dispositions. Since the right to
dispose of property belongs to the testator, he or she may put reasonable restrictions on a person’s
right to inherit his or her estate. In this chapter, we will examine the testator’s right to dispose and to
place restrictions on the receipt of his or her property.
7.1.1. The Decedent’s Right to Control the Distribution of Property
The next case involves the law of takings. According to the Fifth Amendment, private
property cannot be taken for public use unless the government pays the private property owner just
compensation. In takings jurisprudence, property is broadly defined to include all of the rights in the
bundle of sticks of property ownership. Therefore, if the government, through eminent domain or
regulation, takes any one of those rights, the private property owner is entitled to just compensation.
Although the case discussed below deals with the issue of takings, the case is included because it
stands for the proposition that “the right to pass on valuable property to one’s heirs” is included in
the bundle of sticks that make up property ownership. Consequently, if the government regulation
takes away that right, the private property owner must be compensated.
Hodel v. Irving, 481 U.S. 704 (1987)
O’CONNOR, Justice.
The question presented is whether the original version of the “escheat” provision of the Indian
Land Consolidation Act of 1983, Pub.L. 97-459, Tit. II, 96 Stat. 2519, effected a “taking” of
appellees' decedents' property without just compensation.
I
Towards the end of the 19th century, Congress enacted a series of land Acts which divided the
communal reservations of Indian tribes into individual allotments for Indians and unallotted lands
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