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Articles 1 - 30 of 85
Full-Text Articles in Law
“Champion Man-Hater Of All Time”: Feminism, Insanity, And Property Rights In 1940s America, Magdalene Zier
“Champion Man-Hater Of All Time”: Feminism, Insanity, And Property Rights In 1940s America, Magdalene Zier
Michigan Journal of Gender & Law
Legions of law students in property or trusts and estates courses have studied the will dispute, In re Strittmater’s Estate. The cases, casebooks, and treatises that cite Strittmater present the 1947 decision from New Jersey’s highest court as a model of the “insane delusion” doctrine. Readers learn that snubbed relatives successfully invalidated Louisa Strittmater’s will, which left her estate to the Equal Rights Amendment campaign, by convincing the court that her radical views on gender equality amounted to insanity and, thus, testamentary incapacity. By failing to provide any commentary or context on this overt sexism, these sources affirm the …
How The Ali's Restatement Third Of Property Is Influencing The Law Of Trusts And Estates, Lawrence W. Waggoner
How The Ali's Restatement Third Of Property Is Influencing The Law Of Trusts And Estates, Lawrence W. Waggoner
Articles
Restatements, once limited to restating existing law, are now substantially devoted to law reform. The ALI's website states its law-reform policy thus: "The American Law Institute is the leading independent organization in the United States producing scholarly work to clarify, modernize, and otherwise improve the law." In 2014, the Brooklyn Law Review published a symposium issue on Restatements of the Law. A paper in that symposium argued against the ALI's law-reform policy. The authors specifically speculated that the reformist rather than restatist character of the recently completed Restatement (Third) of Property: Wills and Other Donative Transfers (Property Restatement) has "very …
The Creeping Federalization Of Wealth-Transfer Law, Lawrence W. Waggoner
The Creeping Federalization Of Wealth-Transfer Law, Lawrence W. Waggoner
Articles
This article appears in a symposium issue published by the Vanderbilt Law Review on The Role of Federal Law in Private Wealth Transfer. Federal authorities have little experience in making law that governs wealth transfers, because that function is traditionally within the province of state law. Although state wealth-transfer law has undergone significant modernization over the last few decades, all three branches of the federal government—legislative, judicial, and executive—have increasingly gone their own way. Lack of experience and, in many cases, lack of knowledge on the part of federal authorities have not dissuaded them from undermining well-considered state law. The …
Protecting Freedom Of Testation: A Proposal For Law Reform, Eike G. Hosemann
Protecting Freedom Of Testation: A Proposal For Law Reform, Eike G. Hosemann
University of Michigan Journal of Law Reform
This Article addresses a problem ever more pressing in wealthy and aging societies like the United States: interference with freedom of testation by the use of wrongful means such as undue influence or will forgery to acquire benefits through inheritance. A detailed analysis of the remedies against interference with freedom of testation under inheritance law, tort law, and equity reveals that there is currently a significant under-deterrence of this undesirable behavior. Hence, this Article proposes a new remedy in order to protect freedom of testation more effectively: a disinheritance statute barring wrongdoers that have infringed upon someone’s freedom of testation …
Incomplete Wills, Adam J. Hirsch
Incomplete Wills, Adam J. Hirsch
Michigan Law Review
This Article explores the problems that arise when a will fails to dispose of an individual's entire estate, so that she dies partially testate and partially intestate. The questions then raised include (1) whether provisions contained in the will purporting to redefine the individual's intestate heirs should supersede the statutory designations of those heirs, (2) whether inter vivos gifts to heirs should qualify as advancements on the inheritances of those heirs under conditions of partial intestacy, and, most broadly, (3) whether courts should fill in the incomplete portion of an individual's estate plan by extrapolating from the distributive preferences set …
Toward Economic Analysis Of The Uniform Probate Code, Daniel B. Kelly
Toward Economic Analysis Of The Uniform Probate Code, Daniel B. Kelly
University of Michigan Journal of Law Reform
Insights from economics and the economic analysis of law may be useful in analyzing succession law, including intestacy and wills as well as nonprobate transfers such as trusts. After surveying prior works that have examined succession from a functional perspective, I explore the possibility of utilizing tools like (i) transaction costs, (ii) the ex ante/ex post distinction, and (iii) rules versus standards, to illuminate the design of the Uniform Probate Code. Specifically, I investigate how these tools, which legal scholars have employed widely in other contexts, may be relevant in understanding events like the nonprobate revolution and issues like "dead …
Shattering And Moving Beyond The Gutenberg Paradigm: The Dawn Of The Electronic Will, Joseph Karl Grant
Shattering And Moving Beyond The Gutenberg Paradigm: The Dawn Of The Electronic Will, Joseph Karl Grant
University of Michigan Journal of Law Reform
Legislators in Nevada have already acted to modernize the law of wills. This Article advocates that other states follow their lead and depart from what is described as the "Gutenberg Paradigm" by adopting similar legislation and embracing electronic technology. Part One of this Article explores the history of print, Johann Gutenberg's role in this development, and the emergence of the "Gutenberg Paradigm." Part Two examines the history and policy underpinnings of will execution formalities, and the role of the "writing" requirement. Part Three explores the use of electronic wills as conforming and nonconforming testamentary instruments. More specifically, Part Three highlights …
The Upc Authorizes Notarized Wills, Lawrence W. Waggoner
The Upc Authorizes Notarized Wills, Lawrence W. Waggoner
Articles
This article reports on a 2008 amendment to the Uniform Probate Code that permits notarization as a method of will execution.
Class Gifts Under The Restatement (Third) Of Property, Lawrence W. Waggoner
Class Gifts Under The Restatement (Third) Of Property, Lawrence W. Waggoner
Articles
The new Restatement (Third) of Property (officially the Restatement (Third) of Property: Wills and Other Donative Transfers), in tandem with the Restatement (Third) of Trusts, is systematically proceeding through the whole field of wills, will substitutes, trusts, and estates. Both of the new Restatements should prove to be handy resources for trust and estate lawyers, not only in preparing to argue cases at both trial and appellate levels, but also in the everyday work of drafting and construing dispositive provisions in wills, trusts, and other types of donative documents. Each Restatement section is followed by a set of Comments explaining …
Divorcees Turn About In Their Graves As Ex-Spouses Cash In: Codified Constructive Trusts Ensure An Equitable Result Regarding Erisa-Governed Employee Benefit Plans, Sarabeth A. Rayho
Divorcees Turn About In Their Graves As Ex-Spouses Cash In: Codified Constructive Trusts Ensure An Equitable Result Regarding Erisa-Governed Employee Benefit Plans, Sarabeth A. Rayho
Michigan Law Review
A revocation-by-divorce statute essentially nullifies a devise in a divorced decedent's will when the devise bequeaths property to the decedent's ex-spouse and the will was executed during their marriage. Until recently, state revocation-by-divorce statutes unquestionably applied not only to wills but also to will substitutes, including ERISA-governed employee benefit plans. In 2001, the Supreme Court held in Egelhoff v. Egelhoff ex rel. Breiner that ERISA preempts traditional state revocation-by-divorce statutes as applied to ERISA-governed employee benefit plans. In the wake of the Egelhoff decision, plan administrators may automatically pay proceeds to the listed beneficiary, even an ex-spouse, regardless of the …
Free Will To Will? A Case For The Recognition Of Intestacy Rights For Survivors To A Same-Sex Marriage Or Civil Union?, Christine A. Hammerle
Free Will To Will? A Case For The Recognition Of Intestacy Rights For Survivors To A Same-Sex Marriage Or Civil Union?, Christine A. Hammerle
Michigan Law Review
This Note argues that courts should recognize intestacy rights for same sex couples that were validly married or civilly united in a state other than the one in which one of the partners died. Courts may validly recognize the marriage for intestacy purposes, even while refusing to recognize the marriage as against public policy. Part I details the recent provision of benefits in various states to same-sex couples. Part II argues that same-sex couples cannot necessarily rely on wills to effectuate their intent to leave their property to their spouses. Part III argues that when states refuse to recognize the …
Reforming The Law Of Gratuitous Transfers: The New Uniform Probate Code, John H. Langbein, Lawrence W. Waggoner
Reforming The Law Of Gratuitous Transfers: The New Uniform Probate Code, John H. Langbein, Lawrence W. Waggoner
Articles
In the mid-1980s the Uniform Law Commission undertook a landmark revision of the American law of gratuitous transfers. These reforms culminated in a drastically revised Uniform Probate Code ("UPC"). The revisions inspired the Albany Law Review to organize this symposium issue for the purpose of examining the 1990 UPC. In this introductory paper, we point to the main themes of the reform movement, discuss some of the traits and constraints of the uniform law process, and comment on some of the suggestions and insights that appear in the symposium articles.
Spousal Rights In Our Multiple-Marriage Society: The Revised Uniform Probate Code, Lawrence W. Waggoner
Spousal Rights In Our Multiple-Marriage Society: The Revised Uniform Probate Code, Lawrence W. Waggoner
Articles
The transformation of the American family constitutes one of the great phenomenons of the past two decades. The traditional Leave It to Beaver family no longer prevails in American society. To be sure, families consisting of the wage-earning husband, the homemaking and child-rearing wife, and their two joint children still exist. But divorce rates are astonishingly high and remarriage abounds. In fact, there is an increasing prevalence in the population of marriages that are more likely to end in divorce than others-marriages in which one or both partners were divorced before and marriages of couples who cohabited prior to marriage.
The Upc's New Survivorship And Antilapse Provisions, Edward C. Halbach Jr., Lawrence W. Waggoner
The Upc's New Survivorship And Antilapse Provisions, Edward C. Halbach Jr., Lawrence W. Waggoner
Articles
Law governing transfers of family property has long struggled with questions of survivorship in their many and varied forms. Important results can and regularly do turn on how such issues are resolved.
Redesigning The Spouse's Forced Share, John H. Langbein, Lawrence W. Waggoner
Redesigning The Spouse's Forced Share, John H. Langbein, Lawrence W. Waggoner
Articles
American forced-share law underwent a major round of reform in the 1960s. The main objective was to prevent the decedent from engaging in "fraud on the widow's share," that is, using nominal inter vivos transfers to evade the surviving spouse's forced-share entitlement. In jurisdictions that follow the Uniform Probate Code of 1969 (UPC), that mischief has been eradicated. The UPC, which is discussed in some detail below, extends the forced-share entitlement to property that has been the subject of inter vivos transfer. In the present article we develop the view that the time has come for a further round of …
The Emergence Of A General Reformation Doctrine For Wills, Lawrence W. Waggoner, John H. Langbein
The Emergence Of A General Reformation Doctrine For Wills, Lawrence W. Waggoner, John H. Langbein
Articles
In this article, which both summarizes and updates an extensively footnoted article published last year ("Reformation of Wills on the Ground of Mistake: Change of Direction in American Law?" 130 University of Pennsylvania Law Rmiew 521 (1982)), we report on this new case law and discuss the analytic framework that we think it suggests and requires.
Reformation Of Wills On The Ground Of Mistake: Change Of Direction In American Law?, John H. Langbein, Lawrence W. Waggoner
Reformation Of Wills On The Ground Of Mistake: Change Of Direction In American Law?, John H. Langbein, Lawrence W. Waggoner
Articles
Although it has been "axiomatic" that our courts do not entertain suits to reform wills on the ground of mistake, appellate courts in California, New Jersey, and New York have decided cases within the last five years that may presage the abandonment of the ancient "no-reformation" rule. The new cases do not purport to make this fundamental doctrinal change, although the California Court of Appeal in Estate of Taff and the New Jersey Supreme Court in Engle v. Siegel did expressly disclaim a related rule, sometimes called the "plain meaning" rule. That rule, which hereafter we will call the "no-extrinsic-evidence …
The Conservatorship Model: A Modification, Gregory S. Alexander
The Conservatorship Model: A Modification, Gregory S. Alexander
Michigan Law Review
Reform-minded probate lawyers have discussed the idea of ante-mortem probate for many years. Yet, owing to several seemingly unavoidable defects, it has never attracted widespread support · and only recently has been implemented anywhere in the United States. In his article, Living Probate: The Conservatorship Model, Professor John Langbein has eliminated many of those defects and has made the idea much more feasible. In doing so, he has contributed to the development of simple, convenient, and efficient systems of probate. However, his proposal introduces new flaws that threaten the practical working of his procedural model.
Living Probate: The Conservatorship Model, John H. Langbein
Living Probate: The Conservatorship Model, John H. Langbein
Michigan Law Review
The main purpose of the present Article is to suggest a somewhat different theoretical and practical approach to structuring the living probate procedure. I shall characterize the procedure called for in the North Dakota act and in similar proposals as the Contest Model of living probate, in distinction to a Conservatorship Model that I shall advocate to be the better way. Part I of this Article reviews briefly the problem to which living probate is addressed and the alternatives that can presently be employed to forestall post-mortem capacity litigation in the absence of a living probate system. In Part TI …
Giving Or Leaving--What Is A Will?, Olin L. Browder
Giving Or Leaving--What Is A Will?, Olin L. Browder
Michigan Law Review
The question raised by the title of this essay should be essentially as simple as that: Do you want to give property, so that, having given it, it is no longer yours, or do you want to leave it behind at your death, directing who will receive it at that time? The statement of that issue suggests obvious differences in the consequences of inter vivos and testamentary dispositions. Most people also understand that a testamentary disposition invokes the elaborate machinery involved in the administration of a testator's estate, which confers special rights in the creditors and the spouse of the …
Dependent Relative Revocation And Its Relation To Relief For Mistake, George E. Palmer
Dependent Relative Revocation And Its Relation To Relief For Mistake, George E. Palmer
Michigan Law Review
When an intended legal act is induced by mistake in the sense that it would not have occurred had the actor known the truth, the generally accepted method of analysis in our law is that the act is legally effective; the mistake becomes important only in determining whether it provides a ground for setting aside or rescinding the transaction. If a donor makes a gift while laboring under some fundamental mistake such as the identity of the donee or the donee's relationship to him, the gift is in the first instance effective, but the donor may be able to obtain …
The Uniform Probate Code And The International Will, William F. Fratcher
The Uniform Probate Code And The International Will, William F. Fratcher
Michigan Law Review
Emily Graham left her assets in England when she married a French naval officer and went to France to live with him. After her husband died, Emily announced that she was returning to England for the rest of her life and bundled her children and baggage aboard a channel ferry. Before the ferry cleared French waters she became ill and was taken ashore at another French port. While waiting impatiently to recover sufficiently for a final return to England, Emily executed a will of her English assets in the form prescribed by English law, that is, in writing, signed by …
The Conflict Of Laws: A Comparative Study. Volume Four Property: Bills And Notes: Inheritance: Trusts: Application Of Foreign Law: Lntertemporal Relations, Ernst Rabel
Michigan Legal Studies Series
With this fourth and final volume, the monumental survey of existing systems of conflicts law, initiated by the late Ernst Rabel in 1939 under the auspices of the American Law Institute but conducted after 1942 through the generous sponsorship of the University of Michigan Law School, is completed. It is most fortunate that, despite the fact that the present volume was prepared in various institutions during the years immediately preceding the author's death on September 7, 1955, he not only finished but also revised the proofs of the text; the various tables were later compiled at Ann Arbor.
The Wills Branch Of The Worthier Title Doctrine, Joseph W. Morris
The Wills Branch Of The Worthier Title Doctrine, Joseph W. Morris
Michigan Law Review
It is the purpose of this article to examine the history and origin of the wills branch of the worthier title doctrine, to ascertain the extent of its application and the manner of its application, to determine the legal consequences flowing therefrom, and to consider the desirability of its continued existence.
Conflict Of Laws-Model Execution Of Wills Statute-Law Governing Revocation Of Will, Edward W. Rothe S.Ed.
Conflict Of Laws-Model Execution Of Wills Statute-Law Governing Revocation Of Will, Edward W. Rothe S.Ed.
Michigan Law Review
Decedent's will, devising Iowa realty, was denied probate in Illinois, the state of domicile, on grounds that the will had been revoked by cancellation. The devisees offered the will for probate in Iowa, under whose law no revocation was effected. The heirs contested probate on grounds that the Illinois denial of probate was conclusive and binding on Iowa courts in view of §633.49, Iowa code, 1946: "A last will and testament executed without this state, in the mode prescribed by the law, either of the place where executed or the testator's domicile, shall be deemed to be legally executed, and …
Illegal Conditions And Limitations: Effect Of Illegality, Olin L. Browder, Jr
Illegal Conditions And Limitations: Effect Of Illegality, Olin L. Browder, Jr
Michigan Law Review
IN earlier articles the writer undertook to explore that miscellaneous and somewhat neglected field of law in which public policy is held to nullify the efforts of persons to impose certain types of conditions and limitations on dispositions of their property.' Such provisions most commonly take the form either of conditions subsequent or executory limitations, but occasionally appear as conditions precedent or special limitations. Unlike provisions which run afoul of the rule against perpetuities or the rules against restraints on alienation, the provisions in question usually prescribe conduct on the part of beneficiaries which is not directly related to the …
Deeds-Testamentary Character, James R. Bliss S.Ed.
Deeds-Testamentary Character, James R. Bliss S.Ed.
Michigan Law Review
In 1929 J. J. Coulter and wife signed, acknowledged, and delivered to be recorded an instrument granting in customary form certain described land to their daughter, Eliza Coulter. The instrument then recited, "It is understood between the parties hereto that the grantors are to have the possession, control and occupancy of said lands during their natural life, and at their death the title to said lands shall vest in the said Eliza Coulter, but not until the death of both grantors herein, does the title pass." The present action, presumably instituted after the death of the makers, sought construction of …
Charities-Statutory Restrictions On Testamentary Dispositions To Charity-Interpretation Of California Statute, Edwin F. Uhl
Charities-Statutory Restrictions On Testamentary Dispositions To Charity-Interpretation Of California Statute, Edwin F. Uhl
Michigan Law Review
Testatrix, domiciled in California, devised her residuary estate to the Eastern Star Lodge, expressly disinheriting her heirs. A further clause provided, "Any portion of my estate which shall be held to have been disposed of in violation of section 41 of the Probate Code shall be distributed to my friend, Eleanor Mott." Section 41 provides that charitable gifts made by a testator, survived by certain designated relatives, including nephews and nieces, "who, under the will, or the laws of succession, would otherwise have taken the property so bequeathed or devised," would be invalid unless executed at least thirty days prior …
Model Probate Code And Monographs On Probate Law: A Review, Russell Denison Niles
Model Probate Code And Monographs On Probate Law: A Review, Russell Denison Niles
Michigan Law Review
The current volume in the Michigan Legal Studies, Problems in Probate Law: Model Probate Code, is an outstanding example of what can be achieved by the cooperation of a professional association and a well-financed and forward-looking law school. The Probate Division of the Section of Real Property, Probate and Trust Law of the American Bar Association initiated the project of preparing a model probate code and sponsored the project through to completion. The code is the Probate Division's proudest achievement. But the code would not have been possible without the Herculean labors of Professor Lewis M. Simes, Director of …
Soviet Law Of Inheritance: Ii, Vladimir Gsovski
Soviet Law Of Inheritance: Ii, Vladimir Gsovski
Michigan Law Review
Wills. Neither the Civil Code nor any other statute sets forth any specific requirements for capacity to make a will. Therefore, the soviet jurists deem any person who is generally competent to enter into legal transactions (Civil Code, Section 8) capable of making a will. Thus, minors under the age of eighteen years and persons adjudged unable to manage their affairs because of mental disease or weak-mindedness do not have testamentary capacity. Likewise, a will executed by a testator while "in a state of mind which precluded his understanding the significance of his acts," has no validity (id., Section 3r).