Testamentary responsibility

Testamentary freedom – the freedom to determine the distribution of our assets after we die – is often described as the bedrock or organising principle of succession law. In fact, for many people testamentary freedom is something we have always had, should continue to have, and is therefore both self-evident and untouchable. This emphasis on testamentary freedom and, simultaneously, testator intent, has had significant consequences for how we have come to perceive not just restrictions on this freedom, but also the rationale underpinning various areas of succession law, including intestate succession, as well as the functions of succession law. The aim of this article is to challenge testamentary freedom as the organising principle of succession law. It does so by bringing into sharper focus another important value of succession law: ‘responsibility’. The article argues in favour of a responsible exercise of testamentary power – an exercise that reflects the relationships that testators leave behind. By exploring the concept of testamentary freedom from a historical, comparative and contextual perspective, the article thus aims: i) to deconstruct the prevailing narrative of the concept of testamentary freedom and to show not only its contingency, but also that testamentary freedom and responsibility are not mutually exclusive concepts; and, ii) to illustrate that shifting our attention to, and acknowledging responsibility as a core value, opens up new and different ways of understanding and theorising succession law and its underpinning rationales and justifications.