Article: Administrability Over Testamentary Freedom of Disposition

Kevin Bennardo (University of North Carolina School of Law) recently published, Administrability Over Testamentary Freedom of Disposition, 2025. Provided below is an Abstract:

This Article challenges the conventional wisdom that an individual’s freedom of disposition is the organizing principle of inheritance law in the United States. So-called “dead-hand control” has been exalted by courts and commentators for decades to a point that the way it is discussed is hyperbolic in the extreme. This Article calls for everyone to pump the brakes on how effusively and expansively we talk about the role of freedom of disposition in inheritance law. Yes, freedom of disposition is an important principle, but it’s not even the most important principle undergirding inheritance law.

In its place, the Article suggests that the true organizing principle of inheritance law is administrability. The law discloses its preference for administrability in numerous unsubtle ways. One is that decedents lack the ability to exercise meaningful control over the administration of the probate process. If process influences outcomes (and it does!), then decedents’ inability to control the probate process diminishes their control over probate outcomes. Moreover, whenever freedom of disposition meaningfully conflicts with administrability, it is administrability that is preserved at the expense of freedom of disposition. After all, all the freedom of disposition in the world would do little good within the framework of an unadministrable system.