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Full-Text Articles in Law
Fiduciary Duties And Exculpatory Clauses: Clash Of The Titans Or Cozy Bedfellows, Louise Lark Hill
Fiduciary Duties And Exculpatory Clauses: Clash Of The Titans Or Cozy Bedfellows, Louise Lark Hill
University of Michigan Journal of Law Reform
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 …
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 Rise Of The Perpetual Trust, Jesse Dukeminier, James E. Krier
The Rise Of The Perpetual Trust, Jesse Dukeminier, James E. Krier
Articles
For more than two centuries, the Rule against Perpetuities has served as the chief means of limiting a transferor's power to tie up property by way of successive contingent interests. But recently, at least seventeen jurisdictions in the United States have enacted statutes abolishing the Rule in the case of perpetual (or near-perpetual) trusts. The prime mover behind this important development has been the federal Generation-Skipping Transfer Tax. This Article traces the gradual decline of the common law Rule against Perpetuities, considers the dynamics behind the recent wave of state legislation, examines the problems that might result from the rise …
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 Uniform Probate Code Upends The Law Of Remainders, Jesse Dukeminier
The Uniform Probate Code Upends The Law Of Remainders, Jesse Dukeminier
Michigan Law Review
Nothing is more settled in the law of remainders than that an indefeasibly vested remainder is transmissible to the remainderman's heirs or devisees upon the remainderman's death. Thus, where a grantor conveys property "to A for life, then to B and her heirs," B's remainder passes to B's heirs or devisees if B dies during the life of A. Inheritability of vested remainders was recognized in the time of Edward I, and devisability was recognized with the Statute of Wills in 1540.
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, …
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. …
The Uniform Statutory Rule Against Perpetuities: Oregon Joins Up, Lawrence W. Waggoner
The Uniform Statutory Rule Against Perpetuities: Oregon Joins Up, Lawrence W. Waggoner
Articles
Uniform perpetuity reform is on the march, and Oregon has joined the parade. On January 1, 1990, the Uniform Statutory Rule Against Perpetuities (Uniform Act) became effective in Oregon. Although promulgated only three years ago, the Uniform Act has been enacted in over twenty percent of the states and appears to be on its way toward enactment in several others. Prior to the adoption of the Uniform Act, Oregon followed the common-law Rule Against Perpetuities (common-law Rule). Noted for its unjust consequences, the common-law Rule disregards actual events and invalidates a contingent (nonvested) future interest merely on the grounds of …
The Uniform Statutory Rule Against Perpetuities, Lawrence W. Waggoner
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 Estate Tax Marital Deduction, Harold Dubroff, Douglas A. Kahn
The Estate Tax Marital Deduction, Harold Dubroff, Douglas A. Kahn
Articles
The estate tax marital deduction, section 2056 of the Internal Revenue Code, was enacted in 1948, along with the split-income provisions of the income tax law and the marital deduction and split-gift provisions of the gift tax law. The purpose was to give married residents of common law states approximately the same federal tax advantages that were available to married residents of community property states. Ordinarily, upon the death of a married resident of a community property state, only one-half of the community property is taxed in the decedent's estate. Section 2056 achieves approximately the same result for married residents …
Recent Developments In Gift And Estate Taxation, Douglas A. Kahn
Recent Developments In Gift And Estate Taxation, Douglas A. Kahn
Other Publications
A summarization of recent tax cases.
Transactions Subject To Gift Tax, Douglas A. Kahn, Earl M. Colson
Transactions Subject To Gift Tax, Douglas A. Kahn, Earl M. Colson
Articles
The gift tax is imposed on the "transfer of property by gift." The term gift is not expressly defined either in the Code or in the Treasury Regulations. However, section 2512(b), dealing with the valuation of gifts, states that "where property is transferred for less than an adequate and full consideration in money or money's worth," the difference between the value of the property transferred and the consideration received constitutes a gift. Thus, for gift tax purposes, the determination of whether a gift was made does not turn so much on the intent of the transferor as it does on …
Review Of Michigan And Federal Estate And Tax Planning, By P. Chirco And S. Ward, Douglas A. Kahn
Review Of Michigan And Federal Estate And Tax Planning, By P. Chirco And S. Ward, Douglas A. Kahn
Reviews
Any evaluation of a book of this nature must be made in light of its purpose and its intended audience. The authors recognize that estate and tax planning is too broad a subject to be treated comprehensively in a single volume, and, consequently, they quite properly made no effort in that direction. Rather, their apparent purpose was to furnish the non-specialist with an annotated form book containing textual discussions of tax and estate planning problems, with particular emphasis on local Michigan law.
Executors And Administrators-Sale Of Realty In The Estate-Better Price As Reason For Permitting Sale Under "Best Interests Of The Estate" Provision, William J. Bogaard
Executors And Administrators-Sale Of Realty In The Estate-Better Price As Reason For Permitting Sale Under "Best Interests Of The Estate" Provision, William J. Bogaard
Michigan Law Review
Pursuant to a Missouri statute permitting sale of real property for any purpose in the best interests of the estate, administrator filed a petition for power to sell realty in the estate of the decedent for the reason, inter alia, that a better price could be obtained at a private sale than at a judicial sale resulting from a suit for partition. The plaintiff heir's subsequent bill for partition of the real estate was dismissed by the trial court, which found that the administrator's petition for power to sell had conferred jurisdiction of the property on the probate court. …
Descent And Distribution - Joint Ownership - Imposition Of Constructive Trust On Murderer Of Co-Tenant, John B. Schwemm S.Ed.
Descent And Distribution - Joint Ownership - Imposition Of Constructive Trust On Murderer Of Co-Tenant, John B. Schwemm S.Ed.
Michigan Law Review
A husband, owning land with his wife as tenants by the entireties, killed her and immediately thereafter committed suicide. In an action to determine ownership of the realty, both the probate and appellate courts declared that since a relevant disinheritance statute was inapplicable, full title vested in the husband and, upon his death, descended to his heirs. On appeal, held, reversed. Despite the common law nature of such tenancies, equity will impose on the husband a constructive trust in one-half the property for the benefit of the victim's estate. National City Bank of Evansville v. Bledsoe, (Ind. 1957) …
Dispositions Of Property To Unincorporated Non-Profit Associations, Harold A.J. Ford
Dispositions Of Property To Unincorporated Non-Profit Associations, Harold A.J. Ford
Michigan Law Review
It now becomes necessary to examine the cases in which the disposition could not be treated as one to the existing members. This treatment will disclose that some courts have been prepared to regard some dispositions to associations as being for the purposes of the association. The only way in which property may be devoted to a purpose without conferring beneficial interests on particular individuals is by a trust. Accordingly in many instances the disposition takes effect as a trust.
Is The Rule Against Perpetuities Doomed?, Lewis M. Simes
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 …
Retroactive Legislation Affecting Interests In Land, John Scurlock
Retroactive Legislation Affecting Interests In Land, John Scurlock
Michigan Legal Studies Series
Professor Scurlock's monograph covers an area of the law which is commonly by-passed in treatises and in classroom instruction. If we could merely tear Maitland's "seamless web" of the law and retain all the shreds, no part of the legal system would escape us. What we actually do, however, is to set up, in a more or less arbitrary fashion, numerous centers of legal classification, such as contracts, torts, property and constitutional law, to which closely related legal materials are attracted as to a magnet. But those legal materials which stand midway between two centers of attraction are likely to …
Contracts-Rights Of Third Party Beneficiary-Effect Of Michigan Beneficiary Contract Statute, Gordon W. Hueschen S. Ed.
Contracts-Rights Of Third Party Beneficiary-Effect Of Michigan Beneficiary Contract Statute, Gordon W. Hueschen S. Ed.
Michigan Law Review
On agreement to make mutual wills, Stephen and his two sisters entered into an agreement whereby the sisters agreed to will to Stephen, or in event Stephen predeceased them, to his wife, all property which they should receive from their father. Stephen did predecease the sisters, whereupon they executed new wills with no provision for Stephen's widow. Upon death of the last sister, the widow's bill for specific performance of the agreement was dismissed by the circuit court. In affirming on appeal, the Michigan Supreme Court held that the agreement as to Stephen and all other persons except the sisters …
Perpetuity Statutes, Edwin C. Goddard
Perpetuity Statutes, Edwin C. Goddard
Articles
THE common law of perpetuities is one of the most interesting examples of almost pure judicial legislation. De Donis, The Statutes of Uses and of Wills, but gave wider scope to the development by the courts of rules of law to thwart the attempt of the great landowners to tie up their landed estates in their families in perpetuity. One body of rules to this end limited restraints upon alienation, another the creation of future interests vesting at too remote a period. Restriction of restraints upon alienation, and the rule against perpetuities, these two were developed for the same end, …
Escheat - How State Acquires Title, Edwin C. Goddard
Escheat - How State Acquires Title, Edwin C. Goddard
Articles
Escheat is of feudal origin, and properly applied only to land which on failure of heirs or for certain other reasons, "fell in" to the lord under whom it had been held. Personal property without an owner, as bona vacantia, became the property of the crown. In re Bond [1901] 1 Ch. 15. In the United States escheat is used more broadly, but usually arises when the owner of property dies intestate without heirs. Our alienage laws have generally removed disabilities of aliens to take, but in some jurisdictions there may still be escheat because of alienage, see 5 MICH. …
The Writing Required To Establish An Express Trust Of Land, Edgar N. Durfee
The Writing Required To Establish An Express Trust Of Land, Edgar N. Durfee
Articles
It has frequently been said that the Seventh Section of the Statute of Frauds, concerning Trusts of land, requires a writing containing "all the terms of the trust." Forster v. Hale, 3 Ves. 707; Smith v. Matthews, 3 DeG., F. & J. 139; Loring v. Palmer, 118 U. S. 321; Gaylord v. Lafayette, 115 Ind. 423; McClellan v. McClellan, 65 Me. 500; Blodgett v. Hildreth, 103 Mass. 484; York v. Perrine, 71 Mich. 567; Newkirk v. Place, 47 N. J. Eq. 477; Steere v. Steere, 5 Johns. Ch. 1; Cook v. Barr, 44 N. Y. 156; Dillaye v. Greenough, 45 …
Contingent Gifts And Incorporation By Reference, John R. Rood
Contingent Gifts And Incorporation By Reference, John R. Rood
Articles
The courts have had great difficulty in reconciling certain contingent gifts with the statutes requiring wills to be in writing duly executed. At first glance there appears no inconsistency, but in practice troubles accumulate.
The Disposition To Be Made Of Property The Subject Of A Power If The Power Is Not Exercised, John R. Rood
The Disposition To Be Made Of Property The Subject Of A Power If The Power Is Not Exercised, John R. Rood
Articles
The object sought in this article is to collect and classify the cases in which the courts have passed on the question as to what shall be done with property over which a power of appointment has been given; when it finally turns out for some reason that the power has not been exercised. It is not the object to establish any particular thesis, but rather to ascertain how the adjudicated cases stand.
Unenforceable Trusts And The Rule Against Perpetuities, George L. Clark
Unenforceable Trusts And The Rule Against Perpetuities, George L. Clark
Articles
Bequests upon trust to use the income thereof each year in keeping a monument or grave in repair, or in saying masses,8 or in having a brass band to play at the testator's grave each year on the anniversary of the testator's death9 have been held invalid, and the reason given is that the gift is a "perpetuity"1 or is in "violation of the rule against perpetuities."11 What do the courts mean by calling such a gift a "perpetuity?" And in what way, if at all, could the bequest be so changed as to avoid the "rule against perpetuities" and …
The Public Policy Of Contracts To Will Future Acquired Property, Joseph H. Drake
The Public Policy Of Contracts To Will Future Acquired Property, Joseph H. Drake
Articles
The general subject of wills upon consideration seems to have given courts and jurists a good deal of trouble, not only in England and America, but also in the continental countries. The Code Napoleon appears in terms actually to prohibit the making of reciprocal or mutual wills in the same instrument.