Law Commons^™

Against Fiduciary Constitutionalism, Samuel L. Bray, Paul Miller

Journal Articles

A growing body of scholarship draws connections between fiduciary law and the Constitution. In much of this literature, the Constitution is described as a fiduciary instrument that establishes fiduciary duties, not least for the President of the United States. This Article examines and critiques the claims of fiduciary constitutionalism. Although a range of arguments are made in this literature, there are common failings. Some of these involve a literalistic misreading of the works of leading political philosophers (e.g., Plato and Locke). Other failings involve fiduciary law—mistakes about how to identify fiduciary relationships, about the content and enforcement of fiduciary duties, …

The Decline Of Revocation By Physical Act, Barry Cushman

Journal Articles

The power to revoke one’s will by physical act was enshrined in Anglo-American law in 1677 by the Statute of Frauds. It remains the law in Great Britain, in such developed Commonwealth countries as Canada, Australia, and New Zealand, and in each of the United States of America. Yet the revocation of wills by physical act has become badly out of phase with the law governing nonprobate transfers, which as a general matter requires that an instrument of transfer be revoked only by a writing signed by the transferor. This article surveys the place of revocation by physical act in …

Regularizing The Trust Protector, Paul B. Miller

Journal Articles

Increasingly, settlors of trusts in on-shore jurisdictions are making use of trust protectors. Protectors serve a variety of functions but generally speaking they are appointed to provide additional security for settlors’ expectations that trusts will be administered in accordance with their intentions. Given the potential breadth and variety of functions performed and powers wielded by protectors, their use generates important and profound theoretical issues. Taking its cues from recent efforts to regularize trust protection, this essay addresses questions concerning the extension of fiduciary duties to trust protectors. Amongst other things, it questions the tenability of proposals for broad extension of …

Tax Recognition, Barry Cushman

Journal Articles

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 …

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

Journal Articles

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 …

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

Journal Articles

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 …

On Being Pleasant: Ethics In Estate Planning, Thomas L. Shaffer

Journal Articles

The play “Harvey” teaches a valuable lesson on legal ethics through the character Elwood. Elwood teaches how being pleasant does more for a person than being smart. Legal ethics in estate planning is examined through three points of view: the reality of professional life in estate planning, the reality of client life in estate planning, and the reality of life in families that are affected by estate planning. In discussing each point of view, the Author uses the actions of Elwood to demonstrate and argue that professional ethics is not just a system for staying out of trouble, but is …

Taxation Of Distributions From Accumulation Trusts: The Impact Of The Tax Reform Act Of 1976, David T. Link, Michael J. Wahoske

Journal Articles

The complex rules governing the taxation of income from trusts and estates have at times been described as incomprehensible. Perhaps the most confusing of these are the accumulation distribution throwback rules. In an effort to alleviate some of this confusion, Congress included accumulation trusts within the purview of the Tax Reform Act of 1976. Though Congress claimed that the rules are now "considerably simplified," it is not without some effort that one is able to translate the statutory language into a form useful to the practitioner.

Given the complexity of the rules, it is necessary to begin with a caveat. …

Estate Planning Games, Thomas L. Shaffer

Journal Articles

This paper fits somehow into several years of research and conjecture on legal counseling-the study of what takes place in the law office, in one-on-one relationships between professional and client. Most of my work has been in what is called the "estate planning" field-partly because it is an emotionally elaborate professional activity that takes place in the office, and not in courts or meetings or committees; and partly because it is my primary teaching interest, the field of legal endeavor I know most about.

Will Interviews, Young Family Clients And The Psychology Of Testation, Thomas L. Shaffer

Journal Articles

The psychology of testation—the human content in will interviewing and consequent "estate planning"—is a mixture of attitudes toward death, attitudes toward property, and attitudes toward giving. This article is an attempt to examine this human content in five specific lawyer-client settings. The clients are young married couples with small children; they are people to whom death would seem remote, whose property is skimpy and largely devoted to dependent support, and whose attitudes toward giving are likely to be narrowly focused on members of their immediate families.

Nonestate Planning, Thomas F. Shaffer

Journal Articles

This article proposes and explains a will form for the young and promising, but presently impecunious, Calvin Knox. He is called a "junior executive" by appliance dealers, and his property is called an "estate" by his flatterers. He is really a middle-class, white-collar worker; and what he really has is a nonestate of children and debts.

This article is intended to stimulate argument. Nobody ever argues about Calvin Knox's nonestate. Nobody ever 'discusses' him in public. Practicing lawyers who can afford to write about "estate planning" pay no attention to him. Bar association panels and slick-paper journals leave him to …

Capital Gains Distributions Treated As Principal Under The Uniform Principal And Income Act, James H. Seckinger

Journal Articles

In In re Brock, The Supreme Court of Pennsylvania held: a distribution made by a mutual fund or regulated investment company, the source of which distribution is "realized capital gains," is properly allocable to principal under section 5(3) rather than section 5(1) of the Pennsylvania Principal and Income Act of 1947.

A typical mutual fund is an open-end diversified management investment company. Its business is to select, buy, hold, and sell corporate stocks and other securities. The fund's income is twofold. It derives income from interest and dividends on the securities in its portfolio and gains or profits from advantageous …

Recent Decisions (Trusts-Conflict Of Laws), Fernand N. Dutile

Journal Articles

Examining the Texas case Wilson v. Smith, 373 S.W. 2d 514 (Tex. Civ. App. 1963), which invalidated a testamentary trust. The trust provided for the establishment of a clinic-hospital which would apply the methods of nutrition, blood chemistry, radionics and other types of non-medical healing. The court addressed a conflict of laws issue and ultimately invalidated the trust on public policy grounds.

Report Of The Committee On Trusts, Joseph O'Meara, Henry C. Bogle, Hubert A. Brennan, Dan Gordon Judge, Raymond Rosoff, Tom B. Slade, Clinton Latourrette

Journal Articles

The American Bar Association committee on trusts published a report on an investigation of whether common law and similar trusts should be subject to taxation as associations under income tax laws and if the tryst may be established without taxation burdens. The Committee requested a one-year continuation for further investigative consideration.