The Rev. Raymond C. O’Brien, Professor Emeritus at The Catholic University of America Columbus School of Law, published his article “Freedom to Give, Devise, and Bequeath” in the Quinnipiac Probate Law Journal (37 Quinnipiac Prob. L. J. (2024)). In the article, O’Brien’s research examines the phenomenon of an expanding class of donors of advanced age who desire to give their wealth to whomever they wish while bypassing “expensive legal fees, protracted litigation, loss of privacy, and the emotional drama of court proceedings” and presents methods through which the tools of modern estate planning might help “restrict the possibility of contest.”

The abstract to O’Brien’s is reproduced below.
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Abstract
The ability to freely give, devise, or bequeath property is commonly thwarted by persons granted standing to contest formalities and intentionalities of wills, tortious interference with an expectancy, and expanding concern over inter-vivos gifts and trusts due to increasing elder financial abuse. Nonetheless, there is an expanding class of older, wealthy, and independent-minded donors who seek an effective means by which they may give their wealth to whomever they wish and bypass expensive legal fees, protracted litigation, loss of privacy, and the emotional drama of court proceedings.
This Article offers a suggestion of how to restrict the possibility of contest by utilizing the tools of modern estate planning, such as inter-vivos trusts, directed trusts, and selecting an advantageous trust situs. The donative histories of three persons are offered as illustration: Seward Johnson, Huguette Clark, and Sumner Redstone. Each one was wealthy, older, exhibited a history of giving to those they liked, and possessed professionals to assist with giving, devising, or bequeathing their wealth to any person each chose. However, each of their estates endured contest and expense, ultimately suffering disappointing consequences. This Article discusses the challenges they all faced and the options available to them and to those in similar circumstances. Ultimately, it will ask what could have been done differently, and offer a suggestion.
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