Probate Code Research Articles

Curing Execution Errors and Mistaken Terms in Wills

Recent years have seen a remarkable change emerge in the way American courts treat cases involving errors in the execution or the content of wills. The courts have traditionally applied a rule of strict compliance and held the will invalid when some innocuous blunder occurred in complying with the Wills Act formalities, such as when one attesting witness went to the washroom before the other had finished signing. Likewise, the courts have traditionally applied a no-reformation rule in cases of mistaken terms, for example, when the typist dropped a paragraph from the will or the drafter misrendered names or other attributes of a devise; the court would not correct the will no matter how conclusively the mistake was shown. Leading modern authority in a number of American states has now reversed the strict compliance and no-reformation rules. Both by judicial decision and by legislation, the courts have been empowered to excuse harmless execution errors and to reform mistaken terms. Section 2-503 of the Uniform Probate Code treats a noncomplying will as if it had been executed in compliance with the statutory formalities, if the proponent establishes by clear and convincing evidence that the decedent intended the document as his or her will. The new Restatement of Property endorses the harmless-error rule. The new Restatement authorizes courts to reform mistaken terms in a will. The new Restatement’s reformation provision, which has now been codified in § 2-805 of the Uniform Probate Code and § 415 of the Uniform Trust Code, provides that a court may reform any donative document, including a will, “to conform the text to the donor’s intention if it is established by clear and convincing evidence (1) that a mistake of fact or law, whether in expression or inducement, affected specific terms of the document; and (2) what the donor’s intention was.” The provisions of the new Restatement and the Uniform Probate Code endorsing the harmless-error and reformation rules for American law bring new opportunities and responsibilities for probate lawyers. The older conventions of the strict-compliance rule and the no-reformation rule are now open to challenge everywhere. Lawyers processing probate matters need to be alert to the opportunity they now have to raise issues that used to be foreclosed. Sad cases of defeated intent that used to be beyond hope may now be remediable. Innocuous formal defects can be excused, and mistaken terms can be reformed, but only if counsel sees the issue and brings it forward and, in jurisdictions that have not codified the new rules, if the court is hospitable to them.

The “Window of Opportunity:” Helping Parents Make the Most Difficult Decision They Will Ever Face Using an Informed Non-Dissent Model

At times, the anticipated future quality of life of a patient is so poor that parents and healthcare providers agree that withdrawing life-prolonging interventions is most appropriate. Unfortunately, some physicians (particularly many in the United States) believe that their role is to merely present facts (e.g., anticipated prognosis) and options (e.g., continue or remove life-support), and let the parents choose the interventions that will and will not be provided to the child based on the family’s values and beliefs. This model of decision-making has occurred for many reasons (a full discussion of which is beyond the scope of this essay), and has left many parents feeling abandoned when they must alone bear the burdens of making agonizing choices (Loewy 1998). In 2004, and international consensus statement on decision-making specified that a shared decision-making model, in which patients (or parents for the sake of this essay) and physicians jointly reach decisions regarding goals of treatment (Carlet et al. 2004). While the move away from a strict autonomy-based decision-making process towards a shared decision-making standard is moving slowly, already several states in the United States have adopted legislation allowing physicians to unilaterally limit or withdraw lifeprolonging interventions even over the objection of the patient or surrogate (Texas explicitly, and California implicitly) thereby ’giving teeth’ to the shared decision-making model (California Probate Code; Texas 1999). As we move towards a shared decision-making model, United States physicians are becoming more comfortable being active participants in the decision-making process. While the roles of physicians and parents are different, both are agents in the decision-making process. As such, physicians are gradually bearing more of the burden of decisionmaking, and such a move may help to unburden some parents. The key to an effective and appropriate use of the shared decision-making model is to have open and honest communication between all stakeholders, mutual respect,

Parting is Such Sweet Sorrow, but Does it Have to Be so Complicated? Transmission of Property at Death in Vermont

What are the appropriate laws governing the transmission of property at death in the 21st century? This article contrasts the Uniform Probate Code with Vermont Law. The focus is on the substantive laws of inheritance, spousal rights, and wills rather than on provisions governing the probate process itself. Vermont law has not moved far from its 18th century roots and does not meet the needs or expectations of its citizens. The Uniform Probate Code would clarify and improve the law.

Reconciling the Wyoming Death Act with the Wyoming Probate Code: The Legislature's Wake-up Call for Clarification

Reconciling the Wyoming Death Act with the Wyoming Probate Code: The Legislature's Wake-up Call for Clarification

Rev. Proc. 2005-24 and the UPC Elective Share

This article discusses Revenue Procedure 2005-24, which came as a bombshell to the estate-planning bar. The Rev. Proc. requires a spousal waiver of elective-share rights in order for a charitable remainder annuity trust (CRAT) or a charitable remainder unitrust (CRUT) created on or after June 28, 2005, to qualify for a charitable deduction. The elective share is a statutory provision common to most probate codes in non-community-property states that protect a decedent's surviving spouse against disinheritance. The Rev. Proc. is primarily though apparently not exclusively addressed to the elective share of the Uniform Probate Code (UPC). Unfortunately, the Rev. Proc. applies applicable state law that is sometimes consistent with and sometimes significantly departs from the UPC elective share, without identifying which is which. Consequently, the Rev. Proc. may give the wrong impression that the UPC served as the model for the applicable state law throughout the discussion and examples. The source of the problem appears to be that the IRS misinterpreted the UPC elective share. The IRS's description of the UPC elective share overlooks an important feature of that law: Under UPC elective-share law, the settlor-decedent's surviving spouse has no claim on a premarital CRAT or CRUT - a CRAT or CRUT created when the settlor-decedent was unmarried or was married to a previous spouse. Consequently, no spousal waiver should be required of a later spouse if the UPC is the applicable state law. Yet, the Rev. Proc. repeatedly states that a waiver is required of a later spouse. The article concludes by pointing out that there is a larger question posed by the Rev. Proc., which is that if the IRS remains determined to insist on a spousal waiver for CRATs and CRUTs that might but probably won't turn out to be liable for a pro rata share of an electing surviving spouse, the result may be to weaken the elective-share protection for surviving spouses. The article urges the IRS to drop the requirement of a spousal waiver and work out some mechanism for retroactively denying the charitable deduction only in cases in which the surviving spouse actually claims his or her elective-share rights and the CRAT or CRUT becomes liable for satisfying a portion of those rights. This is in fact the IRS's position regarding CRATs and CRUTs created before June 28, 2005, and would seem to be all that is necessary to protect tax revenues.

Inheritance Law and the Evolving Family. Ralph C. Brashier

Inheritance Law and the Evolving Family. Ralph C. Brashier. Philadelphia: Temple University Press. 2004. 264 pp. ISBN 1-59213-222-7. $24.95 (paper). This timely and important book breaks new ground. Ralph C. Brashier raises urgent questions about inheritance in the contemporary United States. He shows that probate frequently fails meet people's needs. Why? The nuclear remains the template for Grafting and executing probate even though data show that most Americans do not live in nuclear families but in greatly various forms. Today's families are made by multiplex alliances based on normative constructs of consanguinity (bilateral descent) and affinity (exogamous, monogamous, and heterosexual marriage) but also on many other identities. Today's Americans may be surrogate parents, single parents, or unmarried or married hetero- or homosexual parents who have no children, biological children, adopted children, stepchildren, technologically assisted children, or some combination thereof. In a brave new of empirical form, the incongruity between inheritance and citizens' needs raises urgent practical, legal, humanistic, and intellectual questions about the institution of family in a world capitalist economy. What constitutes legitimate descent, marriage, or family? What legal rights and responsibilities do those persons have? What is each state's responsibility the families that people actually have? What laws are needed protect members? What is good for the country? What is good for humanity? Brashier convincingly demonstrates that what members expect and desire concerning property transmission and guardianship is often at odds with what the state prescribes. Even normative families are subject surprising legal singularities. In Georgia, for example, a surviving spouse has no statutory recourse against (p. 38). Louisiana, replete with legal precepts derived from Roman Law or continental code law, is the only state in the union order that young children receive a forced share (legitime) to protect them from parental disinheritance (p. 118). In many respects, this book disturbs while it informs because occupationdriven, geographically mobile American families are unlikely know how a last will and testament will be interpreted-and actualized-under different state laws. Chapter 1 establishes the preferred position in probate law (p. 11) of the American spouse, who receives greater protection in inheritance schemes than any other member (p. 10). Spouses in states with community-property laws have equal interest in the various assets earned by either during the (p. 38) that cannot be lost due a provision in the will of the first die. In separate-property states using elective-share law, however, spousal assets are considered individually. The Uniform Probate Code (UPC) of 1969 attempted unify elective-share by ruling that one third of a decedent's augmented estate must be given the surviving spouse, who is assumed by the be an economic dependent (p. 19). The 1990 code recognizes the need for the support component of marriage but also conceptualizes spouses as economic partners. Inheritance is thus based on an evaluation of the length of the marriage and the cumulative wealth of both spouses when the first spouse dies. …

Disclaimer Reform: New Developments and Additional Reflections

The paper follows up on a previous article by the authors which had proposed a series of revisions in the Uniform Disclaimer of Property Interests Act of 1999. That previous article has prompted counter-proposals by both the Joint Editorial Board of the Uniform Probate Code and by the American Law Institute drafting the Restatement (Third) of Trusts with respect to (1) the devolution of disclaimed interests, and (2) the power of a trustee to disclaim an interest in trust property. The present paper examines these counter-proposals and also criticizes recent decisional law concerning the power to disclaim following partial acceptance of inherited property. The paper concludes that several additional amendments to the Uniform Act and other non-Uniform disclaimer statutes merit consideration.

Perfecting Disclaimer Reform: Suggestions for a Revised Uniform Act

Persons who inherit property have the right to refuse (or disclaim) their inheritances under state law. All fifty states now have disclaimer statutes regulating the right of disclaimer, although many of these statutes have grown antiquated. In 1999, NCCUSL promulgated the Uniform Disclaimer of Property Interests Act to promote disclaimer reform. Thus far, the Act has been adopted by eight jurisdictions, and in 2001 it was grafted verbatim into the Uniform Probate Code. We argue that the Act, although helpful in many respects, remains far from flawless: At a substantive level, the Act makes a number policy misjudgments. And at a technical level, the Act is peppered with glitches, ambiguities, gaps, and even constitutional uncertainties that are bound to produce litigation, if left uncorrected. In response, we propose a series of amendments to the official text of the Act designed both to improve upon its substance and to smooth out its technical wrinkles. We offer these amendments for consideration either by NCCUSL itself, or by drafting committees in the individual states that now or in the future contemplate enactment of this NCCUSL product. We also include extensive explanatory comments showing how and why each of our proposed amendments would ameliorate the Act and thereby advance the cause of disclaimer reform.

Revisions in Need of Revising: The Uniform Disclaimer of Property Interests Act

The article critiques the new Uniform Disclaimer of Property Interests Act of 1999. This Uniform Act -- due soon to be grafted into the Uniform Probate Code -- provides a legal framework for the rejection (or disclaimer) of a gratuitous transfer by a beneficiary. The article identifies a host of technical glitches and doubtful policy choices made by drafters of the Act; the article also offers an original analysis of all of the principal policy issues surrounding the law of disclaimer. Finally, the conclusion of the article offers suggestions for reform of the law-modelling process by the National Conference of Commissioners in order to avoid structural difficulties with Uniform Acts that have arisen before and that crop up again in connection with the Act under consideration here.

Nécessité et Moyens d'une Harmonisation des Règles de Transmission Successorale en Europe

The rules of succession have as their purpose the transfer of the ownership of the goods of the deceased to his successors and the determination of their obligations in relation to the payment of his debts. Closely linked with the law of property, this area of law has numerous national peculiarities which make it more difficult to settle matters of succession in cases with connections to several jurisdictions. Harmonisation at the European level is therefore desirable. The author describes the principle approaches to succession applied in the Member States to the European Union, in accordance with a bipartite division of the material - concerning respectively succession to the assets and to the debts of the deceased. He then sets out a theoretical model of an ideal regulation of succession, which would satisfy all the competing interests. This model could form the basis of a regulation of the matter common to all Member States. The choice of the method of harmonisation depends on its suitability to the law of succession. Among the methods available (substantive community law, case law of the European courts, spontaneous convergence of domestic legislation, multilateral treaties), a treaty creating a uniform law appears to be the best way forward. The states which conclude a treaty of this kind undertake to replace their former legislation with uniform rules, without allowing any reservations. Community law provides a legal framework favouring the conclusion of a treaty of this kind (Article 220, Treaty of Rome) and the American example of the Uniform Probate Code confirms that a project of this kind would have a good chance of success.

Beware, Migrating Spouses, Texas Lacks a Quasi-Community Property Statute: It Could Be a Long Cold Winter

This article briefly outlines the community property and common law property systems and gives a brief history of wills. Next follows a discussion of built-in protections provided spouses in the community and common law property systems. Third, this article addresses how a spouse migrating to Texas from a common law state can be effectively left without support when her property-acquiring spouse devises property the couple acquired during marriage to a third party. Fourth, this article contends that quasi-community property principles should be employed in probate contexts to provide widowed migrating, non-acquiring spouses equitable property distributions similar to the way they apply in cases of divorce in Texas and in accordance with the jurisdictions of California, Idaho, Washington, and Louisiana. Finally, this article argues the Texas Legislature should amend the Texas Probate Code and suggests proposed legislation to correct the present inequity.

The Uniform Probate Code Extends Antilapse-Type Protection to Poorly Drafted Trusts

The Uniform Law Commission' promulgated a revised version of Article II of the Uniform Probate Code (UPC or Code) in 1990, and approved a set of technical amendments in 1993. As Director of Research and Chief Reporter for the Joint Editorial Board for the Uniform Probate Code (Board)2 and reporter for the UPC Article II drafting committee, I was privileged to serve as the principal drafter of these provisions. UPC Article II deals with the substantive rules governing donative transfers intestacy; spouse's elective share; execution, revocation, and revival of wills; rules of construction for wills and other donative transfers; and perpetuities. In all, UPC Article II contains eighty-five provisions, many of them brand new. The initial project took about four years to complete.

Inheritance law in an aging society.

An exploratory analysis of states' inheritance law changes between 1961 and 1990 was conducted in order to discern major trends and their implications for older families. Results suggested that states were modifying their laws in ways similar to suggestions of the law community's Uniform Probate Code, with about one third of the states adopting the Code itself. Consequently, inheritance law has become less traditional and paternalistic and more like "facilitative law," that is, flexible, accommodating, and supportive of family autonomy and decisionmaking authority. These changes and new laws that simplify procedures, protect the dependent and vulnerable, treat marital property more like community property, recognize variant family forms, and enable extrafamilial bequests, may serve to minimize family disruption, conserve resources, and allow families to tailor property divisions and procedures to particular needs and wishes. An impact study is proposed for disclosing the actual effects on inheritance law reforms. Also, while trends observed in this study were fairly evident, states' adoption of new laws was uneven and selective, inviting continuing trend analyses and further research into the reasons for interstate variation.

Formalities and Formalism in the Uniform Probate Code

Formalities and Formalism in the Uniform Probate Code

Transfers Prior to Marriage and the Uniform Probate Code's Redesigned Elective Share—Why the Partnership is Not Yet Complete

Transfers Prior to Marriage and the Uniform Probate Code's Redesigned Elective Share—Why the Partnership is Not Yet Complete

The Problem of the "Un-Omitted" Spouse under Section 2-301 of the Uniform Probate Code

The Problem of the "Un-Omitted" Spouse under Section 2-301 of the Uniform Probate Code

Reformation of Wills on the Ground of Mistake: Change of Direction in American Law?

Wills cannot be reformed on the ground of mistake. That was the traditional rule: An unambiguous provision in a will could not be reformed, no matter how persuasive the evidence was that the provision mistakenly expressed the testator’s true intention. Courts backed the anti- reformation rule up with a no-extrinsic-evidence rule, a rule that precluded evidence contradicting the plain meaning of the text.In Estate of Duke, P.3d (No. S199435, slip op. Cal. July 27, 2015), the California Supreme Court overturned the traditional anti-reformation rule and held that a will can be reformed on the ground of mistake. In reaching its conclusion, the court relied extensively on John H. Langbein & Lawrence W. Waggoner, Reformation of Wills on the Ground of Mistake: Change of Direction in American Law?, 130 U. Pa. L. Rev. 521 (1982). That article also formed the basis for the reformation rule adopted in the Restatement (Third) of Property: Wills and Other Donative Transfers § 12.1 (2003). The Restatement’s reformation rule, in turn, formed the basis for the reformation rule in the Uniform Trust Code § 415 and the Uniform Probate Code § 2-805. Full disclosure: The authors of the law review article served as Reporters for the Restatement and played a part in adding the will-reformation rule to the Uniform Trust Code and the Uniform Probate Code. Before the California Supreme Court decided Estate of Duke, the Massachusetts Supreme Judicial Court, in Flannery v. McNamara, 738 N.E.2d 739 (Mass. 2000) (4-to-2 decision), refused to adopt the Restatement’s reformation rule, but the New York court in Estate of Herceg, 139 Misc. 2d 201, 747 N.Y.S.2d 91 (Sur. Ct. 2002), adopted it.

The Convention on International Wills: A Reply to Kurt Nadelmann

In a comment recently published' Kurt Nadelmann urges accession by the U.S.A. to a 1973 Convention of the Hague Conference on Private International Law which seeks to create a form of testamentary disposition which would be effective universally.2 In the interest of brevity that Convention will be referred to hereafter as the Convention on Wills. The author respectfully challenges Mr. Nadelmann's contention that ratification of the Convention by the United States is desirable primarily because any attempt to impose upon the states an international form would impinge upon their traditional and constitutional powers to test the validity of wills. Mr. Nadelmann's present interest in seeing the Convention on Wills ratified by the United States apparently stems not only from a desire to minimize testamentary difficulties arising out of truly international contexts but also from a hope of achieving law reform within the United States. He argues that the Convention should be adopted in order to give a lift to our domestic law.3 Acknowledging that the latter objective could be achieved by the enactment in the various American states of the Uniform Probate Code,4 he nevertheless laments that it is unrealistic to hope that all the states will

Uniform Probate Code: Illegitimacy: Inheritance and the Illegitimate: A Model for Probate Reform

Uniform Probate Code: Illegitimacy: Inheritance and the Illegitimate: A Model for Probate Reform

Insurance: Effect of Probate Code Section 258: Participation in Proceeds by Beneficiary Convicted of Voluntary Manslaughter

Insurance: Effect of Probate Code Section 258: Participation in Proceeds by Beneficiary Convicted of Voluntary Manslaughter