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The Uniform Probate Code's Elective Share: Time For A Reassessment, Lawrence W. Waggoner

Articles

In this Article, Professor Waggoner proposes reforms to the Uniform Probate Code's (UPC) treatment of the elective share of the surviving spouse. First, the Article recommends that the UPC adopt a form of presentation that more transparently reflects the normative theories and empirical assumptions underlying the UPC's elective share framework. Second, the Article presents demographic data suggesting that the UPC's current elective share approximation schedule may be inappropriatef or a sizable faction of married couples, those remarryingf ollowing widowhood. Finally, the Article proposes two substantive revisions to the UPC's election share framework-the first proposal is to lengthen the approximation schedule; …

Rejection Versus Termination: A Sublessee's Rights In A Lease Rejected In A Bankruptcy Proceeding Under 11 U.S.C. § 365(D)(4), Vivek Sankaran

Michigan Law Review

When a party files for bankruptcy under chapter 11 of the United States Code, the court typically appoints a trustee to handle all of the party's financial obligations. The trustee's responsibilities include investigating the financial condition of the debtor, the operation of the business, the desirability of continuing the business, and any other matter relevant to the disposition of the bankrupt estate. If a bankrupt party holds a commercial lease, the trustee possesses two options for dealing with the lease. One option is to reject the lease, which ends the bankrupt party's obligation to adhere to the provisions of the …

Tribute To William F. Fratcher: Marital Property Rights In Transition, Lawrence W. Waggoner

Articles

"Marital property rights," a term that covers a vast multitude of rights or interests conferred by law on persons who occupy the status of spouse, are in a state of transition. To discuss the themes and trends that are emerging, this Article is divided into four discrete, yet related segments. The first segment addresses how the law allocates original ownership between spouses in a marriage. The second segment turns to the intestate share of the surviving spouse. This is not a topic that much concerns high-powered estate planners because intestate estates are usually fairly small. But to the surviving spouse, …

The Uniform Statutory Rule Against Perpetuities, Lawrence W. Waggoner

Articles

When the National Conference of Commissioners on Uniform State Laws recently approved the Uniform Statutory Rule Against Perpetuities, it may at long last have made perpetuity reform achievable in this country. Coming, as it does, on the heels of the 1981 promulgation of the Restatement (Second) of Property (Donative Transfers), which adopts the same general type of perpetuity reform, and having been unanimously endorsed by the House of Delegates of the American Bar Association, the Board of Regents of the American College of Probate Counsel, and the Board of Governors of the American College of Real Estate Lawyers, the Uniform …

The Incompetent Spouse's Election: A Pecuniary Approach, Susan P. Barnabeo

University of Michigan Journal of Law Reform

Although many state legislatures have preserved the incompetent widow's right of election, these states have developed only general guidelines to govern such an election. These guidelines merely direct the court to act in the "best interests" of the incompetent widow. Courts of the various jurisdictions differ in their approach to determining the "best interests" of the incompetent. Most courts examine all surrounding circumstances regarding the incompetent widow's situation, such as the intent of both the wife prior to her incompetency and of the testator, and the adequacy of the will's provision for the incompetent widow. A minority of jurisdictions, however, …

Perpetuities: A Perspective On Wait-And-See, Lawrence W. Waggoner

Articles

Professor Dukeminier and I agree on most of the important points concerning perpetuity law and perpetuity reform. We agree that the Rule Against Perpetuities still serves a socially useful function of limiting dead hand control, and should not be abolished. We also agree that the common law Rule is needlessly harsh and should be softened. Finally, we agree on the type of reform that is most desirable-waitand- see. Our only disagreeihent-concerns the best method of marking off the wait-and-see perpetuity pe]iqod-the period of time during which dispositions that would have been invalid under the common law Rule are to be …

A Rejoinder By Professor Waggoner, Lawrence W. Waggoner

Articles

Since the patience of the reader and the space in this issue of the Law Review are nearing their limits, I wish to publish only two points in response to what Professor Dukeminier has written.. These points further support my position that Dukeminier's proposed statute would lead almost anyone to conclude that A, not X, is the causal relationship measuring life in Example 1 of my article.1 By implication, these points, along with the others made in my article, corroborate my overall thesis: Professor Dukeminier's proposed one-sentence statute2 cannot be counted a responsible way of identifying the measuring lives for …

Perpetuity Reform, Lawrence W. Waggoner

Articles

After years of debate, perpetuity reform is still controversial. To be sure, there is agreement among virtually all of the commentators and experts in the field that the Rule Against Perpetuities is in need of reform. The disagreement, on the surface, centers on the methods of reform to be employed. At least three basic methods have been advanced: (1) specific statutory repair of discrete problem areas; (2) reformation; and (3) wait-and-see. Each method has its sponsors, and each has in one form or another been adopted as part of the law of a few states. These methods are not mutually …

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

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 …

Private Trusts For Indefinite Beneficiaries, George E. Palmer

Michigan Law Review

Recently, in McPhail v. Doulton (In re Baden's Deed Trusts), the House of Lords reached a decision that marks an important change in the English law of trusts which could be important also for American law. It held that there is a single test of validity for private trusts and for powers of appointment where the issue is whether the beneficiaries of the trust or the objects of the power are sufficiently definite, and that this single test is that applicable to powers of appointment. For nearly 170 years, since the decision in Morice v. Bishop of Durham, …

Joint Tenancy: The Estate Lawyer's Continuing Burden, John E. Riecker

Michigan Law Review

The discussion which follows will be divided into three major parts. First, it will be important to see why so much real and personal property remains in joint tenancy between husband and wife or in entireties tenancy. It has been almost eighteen years since Congress eliminated the necessity of holding property in this form in order to split income therefrom for income tax purposes. Is inertia the only reason for the popularity of joint ownership, or are there other reasons? Second, we shall review the familiar but false assumptions most laymen (and even a few attorneys) commonly make regarding the …

Testamentary Option To Purchase Realty Can Be Exercised Under Anti-Lapse Statute By Heirs Of Beneficiary--Tuecke V. Tuecke, Michigan Law Review

Michigan Law Review

Testator devised his farm to his son and two daughters. The son, who predeceased his father, was bequeathed an option to purchase the daughters' two-thirds interest in the farm for a specified amount. Over the objection of the daughters, the heirs of the son sought to exercise the option under an anti-lapse statute. The trial court concluded that the son's heirs had inherited the right to purchase. On appeal to the Supreme Court of Iowa, held,affirmed. An option to purchase is a valuable property right inheritable under an anti-lapse statute.

Property-Joint Bank Accounts-The Donee's Inter Vivos Interest, David K. Kroll S.Ed.

Michigan Law Review

The use of joint bank accounts has become widespread throughout the United States in recent years and has been the source of considerable litigation and comment. The predominant importance of this type of account is that it allows funds remaining at the death of a co-depositor to pass to the survivor without the necessity of a will. This aspect of the account, causing it to be known sometimes as a "Poor Man's Will," has been the focal point of the attention given to the transaction; and today, after more than half a century of uneven treatment by the courts, all …

Chancery Practice On The American Frontier: A Study Of The Records Of The Supreme Court Of Michigan Territory, 1805-1836, William Wirt Blume

Michigan Law Review

The act of Congress of January 11, 1805, which created Michigan Territory out of Indiana Territory, provided that the new territory should have a government "in all respects similar" to that provided for the Northwest Territory by the Ordinance of 1787. The Ordinance had provided for the appointment of a court to consist of three judges who should have "a common law jurisdiction. "

Trust Administration - Apportionment And Other Remedies Of An Income Beneficiary When The Trustee's Retention Of Unproductive Property Causes A Loss Or Termination Of Income, Bruce M. Stiglitz S. Ed.

Michigan Law Review

The purpose of this comment is to examine apportionment and other remedies of a beneficiary who has been deprived of his income by the retention of unproductive property, and especially to examine the problems which arise when the trustee's retention of such assets constitutes a breach of trust.

Property - Powers - State Powers Statutes Protecting Creditors And Requiring Formal Execution, Robert A. Smith S. Ed.

Michigan Law Review

The first part of the comment considers the elevation sections of the statute-sections that change the donee's interest in the appointive or dispositive property to a fee for the benefit of creditors. The second part considers the execution sections of the statute-sections that subject the execution of powers to conveyancing requirements. These sections are of the utmost significance to estate planners.

Future Interests - Rule Against Perpetuities - Recent Statutory Amendment In New York, Paul K. Gaston S.Ed.

Michigan Law Review

After 128 years of criticism and confusion and enormous amounts of litigation, New York has amended its statutory rule against perpetuities. The old rule provided that the absolute power of alienation could not be suspended for longer, than "two lives in being" at the creation of the estate plus a minority exception in some cases. Under the new rule the absolute power of alienation can be suspended for a period measured by any number of "lives in being" at the creation of the estate so long as they are not "so designated or so numerous as to make proof of …

Foreign Personal Representatives, Banks Mcdowell Jr.

Michigan Legal Studies Series

In dealing with the legal rules affecting foreign personal representatives, the author of the present monograph is to be commended for the lucid analysis in the following pages of the principal questions that an executor or administrator appointed in one state will encounter in the administration of a single estate on a multi-jurisdictional basis: his right to sue and liability to suit in other states, the effects of his extra-legal action outside the state of his appointment, and the possibilities of reforming existing laws so as to make feasible a system of single administration of decedents' estates. This analysis is …

Wills - Execution - Attestation, Max H. Bergman

Michigan Law Review

Prospective witnesses to a will saw the testatrix standing in an adjoining room engaged in writing. Soon thereafter, the testatrix asked them to come in and sign a paper. Her name had already been written on the document, and she neither signed it in the witnesses' presence nor in any manner indicated the writing to be her will. The witnesses read enough of the document, however, to know it was a will, before subscribing it in the presence of the testatrix and one another. Three of the testatrix' sons objected to the probate of the will on the ground that …

The Martial Deduction And Equalization Under The Federal Estate And Gift Taxes Between Common Law And Community Property States, Paul E. Anderson

Michigan Law Review

In 1948, as the culmination of much dissatisfaction with the treatment of community property under the federal estate and gift tax laws, Congress adopted a new formula for the treatment of gifts and bequests between spouses; this formula was known as the marital deduction. It has remained practically unchanged since its adoption and still stands as an integral part of our federal estate and gift tax structure.

The basic purpose of the deduction was to provide equalization in estate and gift tax treatment between spouses residing in community property states and those residing in common law property states. The plan …

Simes: Public Policy And The Dead Hand, W. Barton Leach, John H.C. Morris

Michigan Law Review

A Review of PPublic Policy and the Dead Hand. The Thomas M. Cooley Lectures, Sixth Series. By Lewis M. Simes.

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.

Real Property - Elimination Of The Straw Man In The Creation Of Joint Estates In Michigan, Edward H. Hoenicke S.Ed.

Michigan Law Review

That joint ownership is a popular form of holding title to real property is undeniable. A husband and wife are especially likely to consider this form of ownership as "natural" and desirable because it emphasizes the concept of marriage as a partnership and gives both partners control over and ownership in the family property. In addition to these factors, joint ownership is popular because of the right of survivorship which is incident to it. In this feature the layman sees, or thinks he sees, the opportunity to avoid a probate proceeding, the estate tax, and the lawyer's fee. It is …

Perpetuities And Other Restraints: A Study Of The Michigan Statutes And Decisions Relating To Perpetuities And Other Devices Which Fetter The Alienability Of Property, Against The Background Of The Laws Of England And Other American Jurisdictions, William F. Frachter

Michigan Legal Studies Series

The central theme of this study comprises the judicial and legislative rules developed to restrict attempts by men of property to endow their families in perpetuity, usually with land, in such manner that each successive living generation can neither part with the property nor prevent unborn generations from succeeding to it. Part One deals with attempts to accomplish this object by bestowing the whole title on each living generation but denying each such generation the power to dispose of the property or to prevent its· descent to the next generation. In this part the principal restrictive rules are judicial, the …

Is The Rule Against Perpetuities Doomed?, Lewis M. Simes

Michigan Law Review

Few rules of the common law have shown such amazing vitality as the rule against perpetuities. Emerging in the Duke of Norfolk's Case in 1682, as a rule to restrict unbarrable entails in land, it is now applied, not only to interests in land, legal and equitable, but also to personal estate, tangible and intangible, including beneficial interests in trusts. It is regarded as a part of the common law of nearly every English speaking country, except a few of the United States where statutory substitutes have been provided. Since 1930, statutory substitutes have been abolished and there has been …

Rights Accruing To A Husband Upon Marriage With Respect To The Property Of His Wife, James W. Day

Michigan Law Review

Attention is directed in this article to the principles of the common law and the features of the subsequent developments that are believed to be of greatest current value either because the particular doctrine still persists or because it aids in the evaluation of a precedent for use in a legal background that differs from that of the period or jurisdiction in which the decision was rendered.

Real Property-Construction Of Deeds-Effect Of Phrase "And/Or Survivor" Following Names Of Grantees, Gene E. Overbeck S.Ed.

Michigan Law Review

The receiver of a bank deeded land "to Alfred Carothers and Delarma Hackett, or survivor." Plaintiff, Hackett's grantee, brought an action for construction of the deed. On appeal, held, the deed conveyed a moiety to each for life with remainder to the survivor in fee, and neither grantee, by a conveyance during his lifetime, could cut off the contingent remainder. Rowerdink v. Carothers, 334 Mich. 454, 54 N.W. (2d) 715 (1952).

Advancements: I, Harold I. Elbert

Michigan Law Review

The purpose of this monograph is to consider the afore-mentioned topics and other questions inherent in the doctrine of advancements. Different interpretations in the various states will be discussed. The principal objectives of the work are to make a comparative study of advancement legislation and to state the law as it actually exists as a basis for determining whether it can be improved.

Real Property-Tenancy By Entireties-Creation By Deed From Husband To Husband And Wife, Richard P. Matsch S. Ed.

Michigan Law Review

H owned real estate in fee simple. His wife, W, joined with him in a warranty deed conveying the land to themselves with the expressed intention of creating a tenancy by entireties. H died and his heirs challenged W's right to take the fee by survivorship. The trial court held that a tenancy by entireties had been created and the wife properly took the fee. On appeal, held, affirmed, one judge dissenting. An Arkansas statute providing that a married man may convey "the interest specified in the deed" directly to his wife permits a husband, already owner …