Abstract

This chapter demonstrates that counter-arguments against such a right from analytic legal theory, among them Steiner’s, do not succeed. Although there are no rights on the part of post-mortem persons, a right to bequeath can be explained by and built around posthumous interests of the testator that might be adversely affected after his or her demise. This perspective, however, would have to be based upon an interest theory of rights. For proponents of a will theory of rights such as Steiner, the Hohfeldian approach offers a different and more adequate way to reconstruct a right to bequeath, not as a claim-right, but as a legal power to create a persisting legal relation. The existence and validity of such a legal relation is independent of whether the person who created it can still be ascribed or is able to express any subjective interest in it or any direction of will. If this legal relation is not honoured, if the legal duties created and defined by it are not fulfilled, the testator’s right to bequeath is infringed upon. As there are no limits to the right to bequeath based on conceptions of individual rights or the technicalities of legal theory, the chapter will point to more promising paths for a normative critique of the right to bequeath.