Private Law Theory

INTRODUCTION
… The aim of this article is to challenge these perceptions and related assumptions and to question testamentary freedom as the self-evident organising principle of modern succession law. Its purpose is to bring into sharper focus another important value of succession law: ‘responsibility’. While we speak of responsibility in other areas of private law (as eg in delict and tort), and we tend to assume that responsibility is a function of public rather than private law, this article argues that it is important to acknowledge and appreciate responsibility as an underpinning value of succession law including of testate succession. Hence my title: ‘testamentary responsibility’.

By saying that a testator has testamentary responsibility, I am not suggesting that testamentary freedom is morally suspect or that it should be abolished. Neither am I saying that a person’s assets should automatically go to her family or the state or crown. Rather, my aim is to re-orient the debate towards ‘responsibility’ as the starting point for theorising succession law and to show that responsibility is compatible with, and indeed intrinsic to, the exercise of testamentary freedom …

€ (Westlaw)

Alexandra Braun, ‘Testamentary responsibility’, (2024) 28(3) Edinburgh Law Review 325-355.