It is the purpose of this article to examine the current problems surrounding the issue of freedom of testation, to enumerate and evaluate various suggestions that have been proposed for the elimination of these problems, and to propose this writer's suggestion for the restoration of freedom of testation to those who wish to propound non-traditional estate plans. Part I examines, in some detail, the ways in which courts and juries have stymied the exercise of freedom of testation. Part II is devoted to the different suggestions that commentators have put forth for the protection of the non-traditional estate plan. Part III examines the writer's reasons that testators might propose estate plans that do not comport with social norms and addresses the question of whether testamentary freedom should be preserved as a "favored doctrine." Part IV contains the writer's own proposed solution to this problem.
Irene D. Johnson, There's a Will, But No Way--Whatever Happened to the Doctrine of Testamentary Freedom and What Can (Should) We Do to Restore It?, 4 Est. Plan. & Cmty. Prop. L.J. 105 (2011).