Abstract

This article presents some arguments against the persistence of the common law freedom to discriminate, in the disposition of property by gift or trust, whether inter vivos or testamentary, on a range of grounds like sex, race and religion. Broadly, two claims are defended. The first is that the elimination of discriminatory gifts and trusts is possible, within the bounds set by orthodox methods of common law reasoning, at least in jurisdictions where a non-discrimination norm operates at the constitutional level. The second is that eliminating discriminatory gifts and trusts is desirable even from a liberal perspective that regards personal autonomy as a great value, once the function of the law of gifts and trusts as a set of power-conferring rules is brought into view