Models of the Will and Negative Disinheritance - Frederic S. Schwartz

• Publication year: 1997

Models of the Will and Negative Disinheritanceby Frederic S. Schwartz^*

I. Introduction

The issue of so-called negative disinheritance arises when a testator provides in her will that a particular person or persons (whom I shall call the "negative beneficiary(s)") shall take none of the testator's property upon her death.¹ Under the orthodox (and still almost universal) rule, such a disinheritance provision² is ineffective.³ If the negative beneficiary becomes the testator's heir⁴ and some property passes in intestacy (because the testator has not named or described beneficiaries for all her property), the negative beneficiary will take his intestate share of that property. Thus, under the orthodox rule, a testator can prevent an heir from taking in intestacy only by making affirmative dispositions of all the testator's property.⁵

Despite its condemnation by a commentator,⁶ the orthodox rule continues to be enthusiastically endorsed by the courts. The cases in which it is rejected are extremely few.⁷ Yet those who condemn the rule have not explained its attraction. Appeals for judicial or legislative reform will likely fail unless the rule's appeal is exposed and refuted. In this Article, I seek to do so.

My argument, in short, is that the rule denying effect to a disinheri-tance provision is a consequence of the fact that the courts have implicitly rejected one model of the will in favor of another. The rejected model—the will as a directive—represents the will (obviously enough) as the testator's instructions regarding ownership of her property after her death. Under the model implicitly favored by the courts, the will as a declaration, the will is, in effect, a post-mortem deed, an instrument creating ownership. Such a model is very uncongenial to a disinheri-tance provision. Moreover, the proposals for reform—what I shall call the "standard remedies" for the orthodox rule—will not be successful unless the courts abandon the declaration model in favor of the directive model.

In Part I of this Article, I consider the possible justifications for the orthodox rule. In Part II, I describe the directive model of the will and discuss its implications for the effectiveness of a disinheritance provision. In Part III, I do the same for the declaration model. In Part IV, I show that the judicial treatment of disinheritance provisions reflects the declaration model. In Part V, I discuss the deficiencies of the standard remedies. Finally, in Part VI, I recapitulate what the preceding discussion implies: Judicial adoption of the directive model of the will provides the best, and probably the only, path to reform.

II. The Orthodox Rule Evaluated

Consider a testator whose heirs are her two brothers, Bl and B2. Her will states that B2 is to receive no part of the estate. The residuary clause is ineffective⁸ or absent. In virtue of the rule that a disinheri-tance provision is ineffective, the residue passes to both brothers equally, including the negative beneficiary,⁹ B2.¹⁰

The rule would be invoked also if the will contains a devise to B2 and provides further that B2 is to receive no additional part of the testator's estate. Again, under the orthodox rule any property whose disposition is not described by any affirmative provision passes in intestacy equally to B1 and B2. Note that in this case, also, we can properly refer to a "disinheritance provision" relating to B2. Although the will does not purport to provide that B2 shall take no part of the testator's estate, it does provide, in effect, that B2 shall not inherit any part of the estate.¹¹

The orthodox rule denying effect to a disinheritance provision has been criticized.¹² We shall see later in this Article that the proposed remedies are inadequate.¹³

The justifications given by the courts themselves in support of the orthodox rule are unsatisfactory.¹⁴ In the early, leading case of Zimmerman v. Hafer,¹⁵ the court stated the rule and the supposed reason for the rule as follows:

"[T]hough the intention to disinherit the heir be ever so apparent, he must, of course, inherit, unless the estate is given to somebody else; and the reason is that the law provides how a man's estate at his death shall go, unless he, by his will, plainly directs that it shall be disposed of differently." An explicit and unequivocal declaration, therefore, that the heir shall not inherit, will be wholly ineffectual to defeat his right unless the estate be given by the will to some one else.¹⁶

To the extent the subsequent cases attempt to justify the orthodox rule, they do so mostly on terms similar to those used in Zimmerman: A disinheritance provision is ineffective because it represents an attempt by the testator to dispose of property over which she has no power of disposition, and the reason she has no such power is that the property is already subject to the intestacy statute. Thus, courts have stated that a disinheritance provision "can only apply to property actually passing through the will and has no effect as to intestate property"¹⁷ and that "the intestate property passes by law rather than by will, [and therefore] the statute and not the testator controls the distribution of this property."¹⁸

Our immediate inclination, perhaps, is to dismiss this justification as obviously circular. The negative beneficiary takes in intestacy, the courts are saying, because the will fails to make any other disposi-tion—when whether the will has made some other disposition is the very question under consideration. The court in Zimmerman, in the passage quoted, is particularly striking in this regard. Surely it is a profound mystery why the requirement that the testator "plainly direct[] that [his estate] shall be disposed of differently" than by the intestacy statute was not satisfied in that case by the testator's "ever so apparent" "intention to disinherit the heir."

To say that the courts have failed to give a noncircular justification for the orthodox rule is not to say that none exists.¹⁹ The candidates for a justification are not, however, satisfactory.

In the first place, the statutory text contains no clear authority for denying effect to a disinheritance provision. The statutory requirements for a valid will are formal requirements only.²⁰ Nor can a basis for the orthodox rule be found in the text of the intestacy statutes. To be sure, the terms of those statutes typically specify the distribution of "property not disposed of by will" to the persons listed as heirs.²¹ But, again, the very question at issue is whether property that, according to the terms of the will, is not to go to the negative beneficiary is "property . . . disposed of by will" for purposes of preempting the provisions of the intestacy statute. Moreover, it is the general purport of the intestacy statutes that their provisions be overridden by indications of a contrary intent in a properly executed will. There is no justification, then, for construing the phrase "disposed of (or similar language) narrowly to exclude a negative "disposition."

To be sure, some alleged disinheritance provisions should be ineffec-tive by virtue of the rule that any will provision that is hopelessly vague is ineffective.²² That is the case when a will lacks an explicit statement that an heir take nothing but contains some other provision arguably indicating such an intent.²³ Or, if the will makes only a small devise, say ten dollars, to an heir, an inference of an intent that the heir take nothing more by way of intestacy is problematic.²⁴ There is no denying that such cases of irremediable vagueness exist. Obviously, however, they cannot justify a rule that makes any disinheritance provision ineffective, no matter how clearly it may express the testator's intent that the negative beneficiary inherit nothing.²⁵

On the other hand, one might attempt to justify the orthodox rule on the basis of an indeterminacy distinct from the kinds of vagueness we have just considered. To give effect to a disinheritance provision requires that the potential intestate share of the negative beneficiary be received by someone else, but the testator has not stated who that someone else is. Determining a substitute recipient of that share, the argument goes, would require the court to engage in impermissible speculation about the testator's intent regarding distribution of her property.²⁶

No doubt this defense of the orthodox rule has the greatest surface appeal, but it is not a satisfactory justification for the orthodox rule either. To see why that is so requires a consideration of the essential nature of a will. The next part of this Article discusses one model of a will and shows that a disinheritance provision should be given effect under that model.

III. The Model of the Will as a Directive

The directive model of a will starts with the obvious observation that a will is an expression of the testator's desires regarding ownership of her property after her death. This is not quite complete, however. We would not wish to give effect to such an expression unless the testator intended that we do so. The courts have put this in terms of a requirement of "testamentary intent":²⁷ The testator must "intend[] that very paper to take effect as a will."²⁸ Moreover, in most cases the testator knows that the pattern of ownership she has described will be brought about by the actions of the executor named in the will. Even if the testator does not know this (because, for example, she has not named an executor) or is mistaken in thinking so (because the executor she has named does not qualify or refuses to serve, and another is appointed in his place), still the testator knows that someone has the duty and power to distribute her property in accordance with her desires as set forth in the will.

We can take account of these aspects of a will by saying that a will is a list of instructions by the testator regarding distribution of her property after her death. As...