Jeffrey Evans Stake
After death and after taxes, the laws relating to wills, trusts, and intestate succession determine what to do with a decedent’s assets. Much of that body of law is built upon the assumption that the law should help the decedent reach her goals if she has expressed them, or mimic her probable goals if she has not. As put by Daniel Kelly, “The organizing principle of succession law is testamentary freedom.” While the wishes of decedents are certainly relevant, as a normative matter there are other concerns deserving attention. This Paper discusses some biological reasons to worry about the behavior of benefactors. Various potential bio-biases in the hearts of donors will be identified, followed in each case by ideas for reforming the law. My main message is that testamentary freedom should be demoted from the organizing principle to an important consideration in the design of the law of succession.