Also known as: testamentary dispositions · disposition by will
Written by attorneys · grounded in primary & secondary sources — see below
A transfer of property that takes effect upon the death of the person making it while the maker retains control until death.
Tonya Takahashi executes a will leaving her vacation cabin to her niece Taliah Tang. At death the cabin remains in Tonya's estate. The probate court classifies the gift as a specific testamentary disposition of the identified parcel.
Travis Tate places shares in a revocable trust for his son Tyler Taylor but keeps full power to revoke and receive dividends. After Travis dies the children of his first marriage argue the trust is an invalid testamentary disposition. The court examines whether the retained powers rendered the arrangement testamentary.
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Tracy Torres signs four declarations of trust naming Timothy Tang as beneficiary but retains the right to receive all dividends and to revoke each trust. After Tracy's death the heirs claim the instruments are invalid testamentary dispositions. The court determines whether the instruments created immediate inter vivos interests or merely attempted testamentary transfers.
An Indian landowner dies owning fractionated allotments. Federal law prevents the owner from passing the interests by will. The heirs challenge the statute as a taking of the right to make a testamentary disposition. The Court holds that the statute eliminated the owner's power to control disposition at death.
A father writes a letter stating he gives a painting to his son but retains possession for life. After the father's death the son claims the letter effected an immediate transfer of a remainder. The court must decide whether the letter created a present interest or merely expressed a testamentary disposition.
A decedent's will leaves real property to relatives living abroad. State law conditions the devise on reciprocal inheritance rights in the foreign country. The relatives argue the statute improperly interferes with the testamentary disposition. The Supreme Court examines whether the state restriction violates federal authority over foreign affairs.
A testamentary disposition takes effect only at the maker's death and remains revocable until then. An inter vivos gift requires immediate irrevocable transfer of ownership. Courts examine whether the donor intended present ownership or merely a future transfer upon death.
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Yes. The owner of a future interest that is not limited to the owner's lifetime may dispose of it by will unless the creating instrument or another rule restricts that power.
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The Restatement treats a specific devise as a testamentary disposition of a particularly identified asset. General, demonstrative, and residuary devises are also testamentary dispositions but differ in the source from which they are satisfied.
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Yes. Substantial retained control, such as the power to revoke or receive income, indicates the transfer is intended to operate only at death and must comply with will formalities.
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…to make a present gift of a remainder with the reservation of a life estate will lead courts to effectuate otherwise invalid testamentary dispositions of property. The two have entirely different characteristics, however, which make them distinguishable. Once the gift is made it is irrevocable and the donor is limited to the rights of a…