Law Commons^™

Virginia Survey Of Law: Property Section; Trusts And Estates Section, Lynda L. Butler

Lynda L. Butler

No abstract provided.

Intestate Succession In A Polygamous Society, Barry Cushman

Barry Cushman

The pursuit of polygamous unions by members of the Church of Jesus Christ of Latter-Day Saints in nineteenth-century Utah posed challenges for the law of the family unique in the annals of American legal history. The exotic familial relationships generated by plural marriages created novel and peculiar problems for the traditional law of intestacy. Mormon leaders, in an effort to avoid these problems, urged their polygamous brethren to make wills. Many polygamists, however, either neglected to plan their estates or were actively opposed to doing so. Mormon legislators accordingly sought to craft statutory schemes that would accommodate the peculiar inheritance …

Fiduciary-Isms: A Study Of Academic Influence On The Expansion Of The Law, Daniel B. Yeager

Daniel B. Yeager

Fiduciary law aspires to nullify power imbalances by obligating strong parties to give themselves over to servient parties. For example, due to profound imbalances of legal know-how, lawyers must as fiduciaries pursue their clients’ interests, not their own, lest clients get lost in the competitive shuffle. As a peculiar hybrid of status and contract relations, politics and law, compassion and capitalism, fiduciary law is very much in vogue in academic circles. As vogue as it is, there remains room for my “Fiduciary-isms...”, a meditation on the expansion of fiduciary law from its origins in the law of trusts through partnerships, …

“I’M Not Quite Dead Yet!”: Rethinking Anti-Lapse Redistribution Of A Dead Beneficiary’S Gift, Eloisa Rodriguez-Dod

Eloisa C Rodríguez-Dod

Anti-lapse statutes create a category of substitute takers when a beneficiary prematurely dies. They are based on the legislature’s presumption of how a testator or settlor would want his property distributed in these circumstances. However, a testator’s or settlor’s intent may effectively be frustrated by this presumed intent. This Article critically examines the tension between an individual’s autonomy and societal goals in the context of anti-lapse statutes applicable to wills and trusts. It scrutinizes the current rules of construction regarding anti-lapse statutes and identifies their deficiencies in their application to wills and trusts. This Article analyzes and identifies the deficiencies …

Toward Economic Analysis Of The Uniform Probate Code, Daniel B. Kelly

Daniel B Kelly

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 …

Innovation, Cooperation And Antitrust, Thomas Jorde, David Teece

Thomas Jorde

Contends that antitrust is a factor in impeding innovation and subsequent profitable commercialization in the US. Partial contents: Industrial organization and innovation: comparisons between Japan, Europe and the U.S.; Impact of antitrust law on alliances to facilitate innovation.

Hidden In Plain View: The Pension Shield Against Creditors, Patricia E. Dilley

Patricia E Dilley

This Article examines the virtually unquestioned protection of retirement assets from creditors, in both state and federal law, with a view to determining whether tax qualification or even retirement itself is a sufficient rationale for preserving debtor assets in the face of creditors' claims, and if so, what the limits of such protection should be. The problems of current law stem in large part from the use of tax qualified status as a convenient shortcut for determining the appropriate bankruptcy treatment of retirement accounts. The result is a wide disparity in the treatment of debtors epitomized by the cases of …

The Game Is Afoot!: The Significance Of Donative Transfers In The Sherlock Holmes Canon, Stephen R. Alton

Stephen Alton

This article presents a recently discovered and previously unpublished manuscript written by John H. Watson, M.D., and annotated by Professor Stephen Alton. Dr. Watson’s manuscript records an extended conversation that took place between the good doctor and his great friend, the renowned consulting detective Mr. Sherlock Holmes, regarding issues of gratuitous transfers of property – issues involving inheritances, wills, and trusts – that have arisen in some of the great cases solved by Mr. Holmes. This felicitous discovery confirms something that Professor Alton has long known: these gratuitous transfer issues permeate many of these adventures. Often, the action in the …

The Planning And Drafting Of Wills & Trusts, Thomas Shaffer

Thomas L. Shaffer

No abstract provided.

Trusting Trust, Deborah Gordon

Deborah S Gordon

What is a trustee and how should we understand her duties? The existing literature typically identifies the trustee in the role of agent, partner or contracting party. This Article re-envisions the trustee in the role of the legal system’s most trusted type of decision-maker: the common law judge. Rather than argue for a top-down recreation of the trustee’s role, this Article contends that valuable lessons can be learned by reconceptualizing how trustees, settlors, and beneficiaries view themselves and each other. Using traditional literature about great judging as a touchstone, the Article argues that those qualities essential to principled adjudication — …

Forty Years Of Codification Of Estates And Trusts Law: Lessons For The Next Generation, Gregory S. Alexander, Mary L. Fellows

Gregory S Alexander

In this paper we develop two theses. First, we argue that uniform law proposals that ask courts and practitioners to abandon revered legal traditions and ways of thinking about estates and trusts, even when they are intent-furthering proposals, face resistance until in time the glories of the past and the risks of a new legal regime fade in importance in legal thought. Second, we argue that, especially within an environment in which states seek to gain competitive advantage over their counterparts in other states, the glories of the past and the risks of a new legal regime fade fastest when …

Probate Law Reform And Nonprobate Transfers, Grayson M.P. Mccouch

Grayson McCouch

The advent of widespread, large-scale probate avoidance has added a new dimension to the project of probate law reform. When the Uniform Probate Code made its debut in 1969, its primary goal was to modernize traditional probate procedures and make them more uniform, flexible, and efficient. The Code's reforms were in part a response to the rise of will substitutes which offered a ready means of transferring property at death outside the probate system. In the intervening years, however, will substitutes have continued to proliferate, while traditional probate procedures have resisted comprehensive reform. The probate system has not become obsolete …

Advantages And Disadvantages Of Mediation In Probate, Trust, And Guardianship Matters , Mary F. Radford

Mary F. Radford

Mediation is the ADR process by which a neutral third party works with disputants to reach a mutually agreeable resolution. Mediation is arguably the oldest and most popular ADR technique in use today. Part I of this essay discusses the commonly accepted advantages of mediation as an alternative to litigation, and, in some instances, questions whether those advantages become disadvantages in the context of probate, trust, and guardianship cases. Part II examines the use of mediation as a component of the actual estate planning process rather than as an alternative to litigation.

Restricting Testamentary Freedom: Ex Ante Versus Ex Post Justifications, Daniel B. Kelly

Daniel B Kelly

The organizing principle of American succession law — testamentary freedom — gives decedents a nearly unrestricted right to dispose of property. After surveying the justifications for testamentary freedom, I examine the circumstances in which it may be socially beneficial for courts to alter wills, trusts, and other gratuitous transfers at death: imperfect information, negative externalities, and intergenerational equity. These justifications correspond with many existing limitations on the freedom of testation. Yet, disregarding donor intent to maximize the donees’ ex post interests, an increasingly common justification for intervention, is socially undesirable. Doing so ignores important ex ante considerations, including a donor’s …

Tax Recognition, Barry Cushman

Barry Cushman

This article was prepared for the St. Louis University Law Journal’s “Teaching Trusts & Estates” issue. Many law students take a course in Trusts & Estates, but comparatively few enroll in a class devoted to the federal wealth transfer taxes. For most law students, the Trusts & Estates course provides the only opportunity for exposure to some of the basic features of the estate tax, the gift tax, the generation-skipping transfer tax, and some related features of the income tax. The coverage demands of the typical Trusts & Estates course do not allow for intensive discussion of these issues, but …

Tipping The Scales In Favor Of Charitable Bequests: A Critique, Elizabeth Carter

Elizabeth R. Carter

This paper considers the public policy favoring testamentary bequests to charity and offers a critique of that policy. Public policy favors testamentary bequests to charity. At least, that is the claim of numerous courts and legislative bodies. The policy favoring charitable bequests may tip the scales in deciding the proper interpretation of a will or the merits of an undue influence, incapacity, or tortuous interference with inheritance claim. Paradoxically, courts and legislative bodies rarely discuss the source of this public policy. Nor do they inquire into the wisdom of the policy. They should.

The Beginning Of The End Of Coverture: A Reappraisal Of The Married Woman’S Separate Estate, Allison Anna Tait

Allison Anna Tait

Before statutory enactments in the nineteenth century granted married women a limited set of property rights, the separate estate trust was, by and large, the sole form of married women’s property. Although the separate estate allowed married women to circumvent the law of coverture, historians have generally viewed the separate estate as an ineffective vehicle for extending property rights to married women. In this Article, I reappraise the separate estate’s utility and argue that Chancery’s separate estate jurisprudence during the eighteenth century was a critical first step in the establishment of married women as property-holders. Separate estates guaranteed critical financial …

Letters Non-Testamentary, Deborah Gordon

Deborah S Gordon

Letters written in anticipation of death, so-called “last letters,” appear frequently in American case law, especially when inheritance is at issue. One common appearance is when such letters are offered to serve as wills for decedents who leave no other written indication of testamentary intent. Even where a properly attested will exists, though, many courts have construed letters as codicils – addenda – to the more traditional instruments, though such letters sometimes contradict or substantially alter the original wills. Courts also use letters as tools for interpreting ambiguous documents and as mechanisms for determining whether a formal property arrangement, a …

San Marino - Digest Of Trust Law, Andrea Vicari Avv.

Andrea Vicari Avv.

No abstract provided.

The Virginia Uniform Trust Code, Robert T. Danforth

Robert T. Danforth

In its 2005 session the Virginia General Assembly enacted Senate Bill No. 891, thus adopting the Uniform Trust Code (UTC), with modifications considered appropriate to this state's institutions, traditions and jurisprudence. The Virginia Uniform Trust Code (Virginia UTC), set forth in new Chapter 31 of Title 55 of the Code, has an effective date of July 1, 2006, but, once in effect, will be applicable (with some exceptions) to trusts created before, on, or after that date. The new Virginia UTC, which encompasses the great bulk of the principles and rules that comprise the law of trusts in Virginia, has …

Common Law Trusts As Business Enterprises, Robert C. Brown

Dr Robert Brown

No abstract provided.

Restrictions Inherent In The Patent Monopoly :A Comparative Critique, Richard M. Buxbaum

Richard M. Buxbaum

No abstract provided.

Over My Dead Body: A New Approach To Testamentary Restraints On Marriage, Ruth S. Lee

Ruth S Lee

Money is a tool that can be wielded from the grave. It is not uncommon to find deeds or wills that shape the behavior of the living by conditioning a grant, devise, or bequest, on a potential beneficiary’s conduct. Sometimes these conditions involve a limitation on marriage—prohibiting, penalizing, or requiring marriage to one of a particular religious faith or ethnicity. Courts have held that complete restraints on marriage are unreasonable, contrary to public policy, and void. However, partial restraints of marriage are valid as long as it is “reasonable.” A restraint is “unreasonable” if a marriage permitted by the restraint …

Which The Deader Hand? A Counter To The American Law Institute's Proposed Revival Of Dying Perpetuities Rules, Scott A. Shepard

Scott A. Shepard

Encouraged primarily by a fluke in federal estate and gift tax law, more than half of the states have either effectively or entirely abolished their rules against perpetuities in the past two decades. The American Law Institute, deeply troubled by this development, has adopted for its Third Restatement a proposed rule against perpetuities that would essentially prohibit conditional gifts to continue for the benefit of parties born more than two generations after the transferor.

The ALI’s efforts are misguided. The rule against perpetuities was the product of a legal, political and social age very different than our own. It was …

Regulation Not Prohibition: The Comparative Case Against The Insurable Interest Doctrine, Sharo Michael Atmeh

Sharo M Atmeh

American law requires an insurable interest—a pecuniary or affective stake in the subject of an insurance policy—as a predi-cate to properly obtaining insurance. In theory, the rule prevents both wagering on individual lives and moral hazard. In practice, the doctrine is avoided by complex insurance transaction structuring to effectuate both origination and transfers of insurance by individuals without an insurable interest. This paper argues that it is time to ab-andon the insurable interest doctrine. As both the English and Aus-tralian experiences indicate, elimination of the insurable interest doctrine will have little detrimental pecuniary effect on the insurance industry, while freeing …

Fiduciary Duties And Exculpatory Clauses: Clash Of The Titans Or Cozy Bedfellows?, Louise Hill

Louise L Hill

Centuries ago, when land represented the majority of wealth, the trust was used primarily for holding and transferring real property. As the dominant form of wealth moved away from family land, the trust evolved into a device for managing financial assets. With this transformation came the use of exculpatory clauses by both amateur and professional trustees, providing an avenue for these fiduciaries to escape liability for designated acts. With the use of exculpatory provisions, discussion abounded about whether fiduciary duties were mandatory or subject to modification. The latter view eventually prevailed, with the majority of jurisdictions viewing fiduciary duties as …

Gli Obblighi Del Trustee Nel Sistema Statunitense., Vanessa Villanueva Collao

Vanessa Villanueva Collao

No abstract provided.

American Probate: Protecting The Public, Improving The Process, Paula Monopoli

Paula A Monopoli

New Hampshire judge and probate attorney John Fairbanks, a court-appointed executor and trustee, stole thousands of dollars from the estates of his trusting elderly clients. Successful Virginia lawyer David Murray misappropriated nearly four million dollars from estates entrusted to him in one of the largest financial swindles by a lawyer in U.S. history. Enterprising attorney James Gunderson drafted wills and living trusts for many residents of Leisure World in Orange County, California, who named him the sole trustee and major beneficiary. These are just some of the cases examined by Paula A. Monopoli to illustrate the unsettling prevalence of fraud …

Dora And William Donner Were Busy People, Richard H. Maloy

Richard Maloy

No abstract provided.

International Trust Domestication: Migrating An Offshore Trust To A U.S. Jurisdiction, Christopher M. Reimer

Christopher M. Reimer

What should an estate planning attorney know before repatriating a foreign trust to the United States?

U.S. and non-U.S. residents should consider the benefits of migrating trusts from offshore jurisdictions to a domestic state, such as Wyoming. For decades, foreign trusts held allure for families seeking to preserve wealth from the steady drain of taxation and the inevitable risk of creditor attack. But the federal government now imposes burdensome reporting and tax requirements on foreign trusts. Many states also offer tax, asset protection, substantive, and structural benefits that mitigate the comparative advantage of offshore trusts.

First, this article explains rationales …