Law Commons^™

A Good Death: End-Of-Life Lawyering Through A Relational Autonomy Lens, Genevieve Mann

Washington Law Review

Death is difficult—even for lawyers who counsel clients on end-of-life planning. The predominant approach to counseling clients about death relies too heavily on traditional notions of personal autonomy and a nearly impenetrable right to be free from interference by others. Rooted in these notions, contracts called “advance directives” emerged as the primary tool for choosing one’s final destiny. Nevertheless, advance directives are underutilized and ineffective because many people are mired in death anxiety, indecision, and the weight of planning for a hypothetical illness. In the end, many do not get the death they choose: to trust in others and share …

How Should Inheritance Law Remediate Inequality?, Felix B. Chang

Washington Law Review

This Article argues that trusts and estates (“T&E”) should prioritize intergenerational economic mobility—the ability of children to move beyond the economic stations of their parents—above all other goals. The field’s traditional emphasis on testamentary freedom, or the freedom to distribute property in a will as one sees fit, fosters the stickiness of inequality. For wealthy settlors, dynasty trusts sequester assets from the nation’s system of taxation and stream of commerce. For low-income decedents, intestacy (i.e., the system of property distribution for a person who dies without a will) splinters property rights and inhibits their transfer, especially to nontraditional heirs.

Holistically, …

Inheritance Crimes, David Horton, Reid Kress Weisbord

Washington Law Review

The civil justice system has long struggled to resolve disputes over end-of-life transfers. The two most common grounds for challenging the validity of a gift, will, or trust— mental incapacity and undue influence—are vague, hinge on the state of mind of a dead person, and allow factfinders to substitute their own norms and preferences for the donor’s intent. In addition, the slayer doctrine—which prohibits killers from inheriting from their victims—has generated decades of constitutional challenges.

But recently, these controversial rules have migrated into an area where the stakes are significantly higher: the criminal justice system. For example, states have criminalized …

Parens Patriae And The Disinherited Child, Michael J. Higdon

Washington Law Review

Most countries have safeguards in place to protect children from disinheritance. The United States is not one of them. Since its founding, America has clung tightly to the ideal of testamentary freedom, refusing to erect any barriers to a testator’s ability to disinherit his or her children—regardless of the child’s age or financial needs. Over the years, however, disinheritance has become more common given the evolving American family, specifically the increased incidences of divorce, remarriage, and cohabitation. Critics of the American approach have offered up reforms based largely on the two models currently employed by other countries: (1) the forced …

The Class Action As Trust, Sergio J. Campos

Washington Law Review

The class action is controversial because the class attorney can litigate or settle the claims of the class members without their consent. Many scholars have turned to corporate law to address the potentially disloyal behavior of the class attorney. These scholars have used analogies to corporate law to support (1) the use of opt-out rights and (2) restrictions on class conflicts to constrain class attorneys, and the law has generally mirrored both requirements. In practice, however, both of these requirements have undermined the efficacy of the class action and prevented the class action from being used in many appropriate settings. …

The Class Action As Trust, Sergio J. Campos

Washington Law Review

The class action is controversial because the class attorney can litigate or settle the claims of the class members without their consent. Many scholars have turned to corporate law to address the potentially disloyal behavior of the class attorney. These scholars have used analogies to corporate law to support (1) the use of opt-out rights and (2) restrictions on class conflicts to constrain class attorneys, and the law has generally mirrored both requirements. In practice, however, both of these requirements have undermined the efficacy of the class action and prevented the class action from being used in many appropriate settings. …

Put Privity In The Past: A Modern Approach To Determining When Washington Attorneys Are Liable To Nonclients For Estate Planning Malpractice, Kaitlyn C. Kelly

Washington Law Review

Even in the best of circumstances, an estate plan may leave intended beneficiaries frustrated. Occasionally, an attorney’s alleged mistake in the execution of a will or administration of a trust sparks the beneficiaries’ anger. Under Washington law, it is unclear whether intended beneficiaries may sue an estate planning attorney for malpractice. Generally, an estate planning attorney’s client is a testator, not a testator’s intended beneficiaries; thus, the intended beneficiaries are not in privity of contract with the attorney. Rather, the only individual in privity with the accused attorney is usually deceased at the time of a malpractice lawsuit. If a …

Washington Trust Laws' Extreme Makeover: Blending With The Uniform Trust Code And Taking Reform Further With Innovations In Notice, Situs, And Representation, Karen E. Boxx, Katie S. Groblewski

Washington Law Review

Washington trust laws were comprehensively revised in 2011 and 2013, resulting in the integration of concepts from the Uniform Trust Code and the addition of some novel provisions. This article discusses in depth the evolution of Washington law regarding the duties to inform and report, the situs of a trust, and representation of interested parties. In addition, this article discusses other UTC provisions that were integrated into Washington statutes and gives an explanation of any departures from UTC language and prior Washington law.

Slayers And Soldiers: The Validity And Scope Of The Slayer's Rule Under The Family Servicemembers' Group Life Insurance Act, Rebecca Blasco

Washington Law Review

The "slayer's rule"—a common law doctrine—precludes a murderer from financially benefiting from the victim's death by denying him or her the right to proceeds from the victim's life insurance policy. Some jurisdictions have extended this rule to disqualify the slayer's exclusive family members from receiving the victim's insurance proceeds as beneficiaries. Exclusive family members are those either not related to the victim or related to the victim only by marriage. The slayer's rule applies to federal group life insurance policies, such as the Servicemembers' Group Life Insurance Act (SGLI), which provides life insurance to servicemembers. Spouses and dependent children of …

Lingering Questions Regarding The Devise Of Black's Acre: How Many Witnesses Are Required To Prove The Execution Of A Lost Will?, Sarah Shirey

Washington Law Review

Prior to the 1994 revisions to Washington's lost will statute, courts required that execution of a lost will be proved by a preponderance of the evidence. In In re Estate of Black, the Washington State Supreme Court announced that under the revised lost will statute, execution of a lost will must be shown by clear, cogent, and convincing evidence. However, the Black court did not clearly define the quantum of proof necessary to meet this new burden. The dissent in Black read the majority opinion as creating a "two witness requirement," necessitating testimony from both attesting witnesses to meet …

Long Live The Dead Hand: A Case For Repeal Of The Rule Against Perpetuities In Washington, Keith L. Butler

Washington Law Review

The common law rule against perpetuities has had a storied career spanning several centuries and two legal systems. The rule developed to curb the concentration of wealth in the hands of a few, and to limit the control of property by those no longer alive to use it. Legendary for its complexity, the rule has undergone statutory reform in many states; some states have gone so fara s to repeal the rule outright. Washington has embraced two of the major reforms of the rule and is considering repeal. This Comment argues that the rule, even with reform, no longer serves …

Superwill To The Rescue? How Washington's Statute Falls Short Of Being A Hero In The Field Of Trust And Probate Law, Cynthia J. Artura

Washington Law Review

During the 1998 session, the Washington legislature added a provision to Title 11 of the Revised Code of Washington that allows for testamentary disposition of certain nonprobate assets. Although Washington's superwill provision is a pioneer in the field of probate and trust law, it is too limited in its scope to achieve filly its stated purpose. One of the statute's stated purposes is to enhance the testator's control over the disposition of nonprobate property. However, the provision limits the definition of "nonprobate asset" to include only joint tenant bank accounts with right of survivorship and revocable living trusts. This Comment …

Abusive Discretion: Discretionary And Supplemental Trusts Created In Settlement Of Personal Injury Claims, Brad Jones Berkness

Washington Law Review

Discretionary and supplemental trusts are often created in settlement of personal injury lawsuits to shield the settlement proceeds from the beneficiary's care-provider's claims. Washington courts provide no clear direction on creditor access to such trusts. This Comment argues for a legislative provision in Washington that makes these trusts accessible to creditors who provide necessities to an injured party. This Comment argues for allowing access regardless of any discretion or supplemental support language in the trust, because these trusts are self-settled and violate public policy.

Property Of The Estate After Confirmation Of A Chapter 13 Repayment Plan: Balancing Competing Interests, Vickie L. Vaska

Washington Law Review

Under Chapter 13 of the Bankruptcy Code, it is unclear whether property of the estate and protection of the automatic stay continue after confirmation of debtor's repayment plan. Courts use diverse approaches to determine whether property of the estate exists after confirmation, resulting in confusion for trustees, debtors, and creditors. This Comment proposes that bankruptcy courts use their equitable powers and adopt a test that balances the competing interests of debtor and creditor

Perpetuities: A Father's Reply, Robert L. Fletcher

Washington Law Review

Susan has persuasively argued for adoption of a method that would look at the various chains of events—the resolving sequences—thus to separate those that fail from those that pass. We differ in only one important respect. In some instances she would use a life or portion of a life that is extraneous to the vesting reached in a particular sequence. I would not. In doing so, she in effect adopts Professor Dukeminier's "affecting lives" approach. To put this in my terms, she uses any life or portion of a life that is pertinent to vesting of any sequence within the …

Perpetuities: Three Essays In Honor Of My Father, Susan F. French

Washington Law Review

The Rule Against Perpetuities is afrequent source offrustration and puzzlement for property students, professors, and practitioners In this Article, the Author presents three essays; her method of analyzing perpetuities problems, a proposalf or refinement of the common law rule, and an examination of the possible benefits of dead hand control. Although the Author has followed in her father's footsteps, becoming a property professor, some of her views on perpetuities diverge from his. Because scholarly discussion of perpetuities historically has taken the form of "Article and Reply" in various Law Reviews, Professor Robert L Fletcher's response follows his daughter's essays.

Creditors' Rights Against Nonprobate Assets In Washington: Time For Reform, Thomas R. Andrews

Washington Law Review

The increasing popularity of nonprobate transfers of property at death has created a "revolution" in family wealth transmission. Yet the law on creditors' rights to reach such transfers is badly confused. In some cases, exemptions from creditors' claims are far broader than can be justified. In others, existing creditors' rights are protected but undefined. In still others, it is unclear whether creditors can reach the property at all. There is no procedure for the enforcement of such rights as creditors may have no specified time limit within which claims may be brought. This lack of system invites abuse and is …

Compressing Testamentary Intent Into Inter Vivos Delivery: What Makes A Conveyance Effective?—In Re Estate Of O'Brien, 109 Wash. 2d 913, 749 P.2d 154 (1988), Susan Tracey Stearns

Washington Law Review

In In re Estate of O'Brien, the Supreme Court of Washington held that intent to pass a deed title at death fulfills the inter vivos delivery requirement and that the will substitute statute removes ineffective conveyances from the will statute requirement. This Note concludes that the O'Brien interpretations of delivery and the will substitute statute are misguided, and recommends judicial reversal of the delivery ruling and a legislative rewording of the statute.

Perpetuities: Basic Clarity, Muddled Reform, Robert L. Fletcher

Washington Law Review

This piece is intended to present the Rule Against Perpetuities, including its recent modifications, simply and understandably. Because the Rule's mechanics, even in their neatest and purest form, have seemed beyond average comprehension, the explanation given here largely brushes over minor variants in the common law expression of the Rule and its operation. The goal is to ensure that the real core of the Rule is clearly portrayed.

Perpetuities: Basic Clarity, Muddled Reform, Robert L. Fletcher

Washington Law Review

This piece is intended to present the Rule Against Perpetuities, including its recent modifications, simply and understandably. Because the Rule's mechanics, even in their neatest and purest form, have seemed beyond average comprehension, the explanation given here largely brushes over minor variants in the common law expression of the Rule and its operation. The goal is to ensure that the real core of the Rule is clearly portrayed.

Perpetuities Refinement: There Is An Alternative, Ira Mark Bloom

Washington Law Review

A new uniform law is in the offing: a Uniform Statutory Rule Against Perpetuities (USRAP). The law is based on the wait-and-see approach to the common law Rule Against Perpetuities. Under this approach, a waiting period is prescribed to see whether the contingency which renders a nonvested interest void under the common law Rule actually occurs. The purpose of this article is twofold: first, to demonstrate why, in response to Professor Leach's basic question, we should not "wait-and-see"; second, to offer constructive alternatives to the wait-and-see approach. Part I of this article identifies those areas of agreement between wait-and-see advocates …

Spendthrift Trusts In Washington—The Statutory Restraint Upon Involuntary Alienation, Thomas W. Read

Washington Law Review

This Comment first examines the historical origins of section 6.32.250 of the Washington Revised Code, the Washington statute which greatly restricts the involuntary alienation of a beneficial trust interest. It then documents the problems that this statute has created for Washington courts. Finally, it concludes that section 6.32.250 has created needless confusion and recommends that the Washington legislature either repeal or revise the statute.

A Simple "Simple" Will, Lynn B. Squires

Washington Law Review

The purpose of this Comment is to present a simple will form that is both sophisticated in substance and simple in form. The lawyer's substantive task—to provide a legally valid instrument disposing of the testator's property—is not especially difficult given the many adequate forms available. The task of simplifying the form—to provide a self-explanatory memorandum that the testator can understand—is more difficult given the nature of the available forms. The authors' intent is, first, to provide a simplified will form in which every word is comprehensible to a lay client, and, second, to suggest ways of simplifying other types of …

Application Of The Antilapse Statutes To Appointments Made By Will, Susan F. French

Washington Law Review

Although litigation involving powers of appointment has been relatively infrequent, the increasing use of powers over the last few decades forebodes increasing litigation in this field. Anticipating this development, several states have enacted fairly comprehensive statutes which attempt to set forth in accessible form certain aspects of the common law of powers, make certain revisions in the common law, and replace outmoded statutes on powers. One area in which both the common law and the recent statutes are inadequate is in the application of antilapse statutes to appointments made by will. This article examines the development of the common law …

Property—Probate Law & Procedure—No More Probate? Wash. Rev. Code § 11.02.090 (1974), Tom Graafstra

Washington Law Review

A new section of the Revised Code of Washington, effective October 1, 1974, has the potential for making probate the exception in Washington rather than the rule. The statute, R.C.W. § 11.02.090, characterizes as nontestamentary certain provisions in a variety of written instruments and enables property to pass at death without compliance with the statute of wills. It may extend the concept of probate-avoidance, best exemplified by the community property agreement, to a broader range of circumstances than under prior Washington case law. Although this section makes the Washington law on probate-avoiding instruments clearer and more consistent, as it was …

Meretricious Relationships—Property Rights: A Meretricious Relationship May Create An Implied Partnership—In Re Estate Of Thornton, 81 Wn. 2d 72, 499 P.2d 864 (1972), W. P. F.

Washington Law Review

In the early 1950's, decedent separated from his wife and began living with appellant. During the subsequent seventeen years decedent, appellant and their four children operated a cattle ranch in Washington. In 1961 profits from that business were used to purchase property known as the Malo farm in the name of decedent. During the following years, appellant participated both in the decisions concerning the farm's management and in its day-to-day operations. Upon the death of the decedent in 1969, his surviving spouse filed a petition for probate of his will. Thereafter appellant filed a petition alleging a partnership interest in …

Inter Vivos Trusts—The Washington Testamentary Anti-Lapse Statute Applied To An Inter Vivos Trust. In Re Estate Of Button, 79 Wn.2d 849, 490 P.2d 731 (1971), Anon

Washington Law Review

Robert H. Button died in 1966, leaving two inter vivos trusts. A revocable trust executed in 1940 gave to Button a life estate with the remainder to his mother, Audrey A. Burg. There was no provision in the trust for disposition of the corpus in the event that Button's mother predeceased him. A second trust instrument, executed in 1964, was sent to Button's attorney with somewhat ambiguous instructions with regard to the revocation of the 1940 trust. To resolve the confusion created when Mrs. Burg predeceased Button by thirteen days, the trustee brought an action to determine its obligation under …

Trusts—Rule Against Perpetuities—Cy Pres: Dominant General Testamentary Intent As A Prerequisite To Application—In Re Estate Of Chun Quan Yee Hop, 469 P.2d 183 (Hawaii 1970), Anon

Washington Law Review

Testator provided that a trust "cease and determine upon the death of my wife... or thirty years from the date of my death, whichever shall last occur... ." After finding the provision violative of the Rule Against Perpetuities, the Supreme Court of Hawaii judicially adopted the cy pres (equitable approximation) doctrine to uphold the trust by shortening the period from 30 to 21 years. The court held specifically that "any interest which would violate the Rule Against Perpetuities shall be reformed within the limits of that rule to approximate most closely the intention of the creator of the interest." In …

Probate In England: A Blueprint For The Future?, Robert L. Fletcher

Washington Law Review

A book review essay considering Probate Can be Quick and Cheap: Trusts and Estates in England, by William F. Fratcher (1968).

Washington Disinherits The Non-Native Wife, James B. Gilchrist

Washington Law Review

Under Washington law the marital property rights of a couple who moves to Washington are treated differently than those of a native couple. The author traces the source and effects of this practice, examines possible common law solutions, and recommends adoption of a "quasicommunity property" statute, similar to the successful California statute which gives the migratory spouse protection and inheritance tax treatment comparable to that of the native spouse.