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Full-Text Articles in Estates and Trusts
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 …
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 …
The 2003 Revised Uniform Estate Tax Apportionment Act, Douglas A. Kahn
The 2003 Revised Uniform Estate Tax Apportionment Act, Douglas A. Kahn
Articles
Editors' Synopsis: This Article describes the significant sections of the 2003 Uniform Estate Tax Apportionment Act (the "2003 Uniform Act'). The Article explains the purpose and operation of the 2003 Uniform Act's various sections and notes some of the differences between the 2003 Uniform Act and its prior version.
The Uniform Probate Code's Elective Share: Time For A Reassessment, Lawrence W. Waggoner
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; …
The Revised Uniform Probate Code, Lawrence W. Waggoner
The Revised Uniform Probate Code, Lawrence W. Waggoner
Articles
In 1989 and 1990, Articles II and VI of the Uniform Probate Code (UPC) were revised by the National Conference of Commissioners on Uniform State Laws (NCCUSL). Article II covers the basic law of intestacy, wills, spousal rights, rules of construction, and perpetuities. Article VI deals with multiple-party accounts and transfer-on-death (TOD) security registration. The major innovations in the revised UPC are driven by changes in legal theory. Three grand themes are at work in the new UPC: 1. improving spousal rights and sensitizing them to changes in family structure, 2. curing intent-defeating formalism, and 3. unifying the law of …
Tribute To William F. Fratcher: Marital Property Rights In Transition, Lawrence W. Waggoner
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, …
Marital Property Rights In Transition, Lawrence W. Waggoner
Marital Property Rights In Transition, Lawrence W. Waggoner
Articles
The subject of "marital property rights" is very timely because those rights are in a state of transition. The term "marital property rights" covers a vast multitude of rights or interests conferred by law on persons who occupy the status of spouse. This lecture 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 high-powered estate planners get involved in very much because intestate estates are usually fairly small. …
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.
The Multiple-Marriage Society And Spousal Rights Under The Revised Uniform Probate Code, Lawrence W. Waggoner
The Multiple-Marriage Society And Spousal Rights Under The Revised Uniform Probate Code, Lawrence W. Waggoner
Articles
Nearly everyone knows about the transformation of the American family that has taken place over the last couple of decades. The changes, from the latter half of the 1970s into the present, comprise one of the great events of our age. Articles on one aspect or another of the phenomenon frequent the popular press, and a special edition of Newsweek was recently devoted to the topic.' The traditional "Leave It To Beaver" family no longer prevails in American society. To be sure, families consisting of a wage-earning husband, a homemaking and child-rearing wife, and their two joint children still exist. …
Closely Held Stocks—Deferral And Financing Of Estate Tax Costs Through Sections 303 And 6166, Douglas A. Kahn
Closely Held Stocks—Deferral And Financing Of Estate Tax Costs Through Sections 303 And 6166, Douglas A. Kahn
Articles
The enactment of the Economic Recovery Tax Act of 1981 (hereinafter referred to as "the 1981 Act") will reduce both the impact of federal wealth transfer taxes and the number of persons still subject to them. Nevertheless, even after the 1981 Act takes full effect, a category of persons remains for whom wealth transfer taxes will constitute a meaningful burden and whose estates face a liquidity problem in satisfying the estate tax liability. The focus of this article is on two statutory techniques: redemptions of stock pursuant to section 3031 and deferral of estate tax payments under section 6166.2 These …
Mutual Wills, Edwin C. Goddard
Mutual Wills, Edwin C. Goddard
Articles
SO LATE as 1822 Sir John Nicholl is reported to have said in Hobson v. Blackburn, that a mutual, or conjoint will is an instrument "unknown to the testamentary law of this country; or, in other words, that it is upknown, as a will, to the law of this country at all. It may, for aught that I know, be valid as a compact." In Darlington v. "Pulteney, Lord MANSFIELD said, "there cannot be a joint will." Following these distinguished and learned judges, Jarman and Williams in their classical treatises accepted the statement of Sir John, and some early American …
An Inroad Upon Fiduciary Integrity, Edson R. Sunderland
An Inroad Upon Fiduciary Integrity, Edson R. Sunderland
Articles
It is a principle universally recognized throughout our system of law, that no person shall be permitted to occupy a position of trust and confidence who at the same time is clearly subject to influences hostile to a faithful performance of his trust. There is a rule as old as Christianity, and it has been incorporated into our law from the earliest times, that "no man shall serve two masters; for either he will hate the one and love the other, or he will hold to the one and despise the other." Fiduciary relations can rest upon no foundation but …
The Cy-Pres Doctrine, Harry B. Hutchins
The Cy-Pres Doctrine, Harry B. Hutchins
Articles
The CY-Pres Doctrine.-The court of chancery of New Jersey in the recent case of Brow et al. v. Condit et al. (Sept. 30, 1905), 61 Atl. Rep. 1055, refused to apply this doctrine under the following circumstances: The will of one Susan M. Corson, bearing date July 7, 1897, disposed of her residuary estate "to the Hospital Fund for Sick Seamen at Navy Yard, Brooklyn, New York, care of Mr. John M. Wood, chaplain." It appears that neither at the time of the making of the will nor at any time thereafter was there a fund in existence at or …
Testamentary Promises To Pay, Nathan Abbott
Testamentary Promises To Pay, Nathan Abbott
Articles
The New York Law Journal for May 23, 1892, contains a suggestive editorial headed "A Will or Not a Will," in which the writer says "Interesting questions are constantly arising in the classification of instruments which, although expressing wishes or intentions to be carried out after death, are open to criticism on the score of testamentary execution." As is intimated by the writer, the difficulty of placing an instrument in either the class of contracts or wills is considerably diminished if the statutory provisions as to execution of wills are elaborate. Where holographic wills are allowed, or wills of personal …