Serve the Cheerleader - Serve the World: Representation in Estate and Trust Proceedings and under the Uniform Trust Code and other Modern Trust Codes
71 Pages Posted: 9 Jan 2008
Abstract
This article is an in-depth examination of representation in estate and trust proceedings of one person (or class of persons) by a person who is already a party to the action. A person who is represented by another party need not be made a party to the proceeding for the judgment to be binding on such person, thus enabling the action to proceed without minors, unborns and persons under disability. The doctrine arose in England and was used in the United States in the early 1800's in cases involving multiple parties. In estate and trust proceedings, a restricted form of the doctrine was recognized at common law and in the first Restatement of Property. The doctrine was greatly expanded by New York legislation enacted in 1967, the elements of which have been adopted by many other jurisdictions, either by statute or case law. The use of representation is desired by attorneys, since it avoids the expense of appointing a guardian ad litem for unborns, minors and persons under a disability. The Uniform Trust Code and other modern trust codes have greatly expanded the uses of representation, creating substantial risks that judgments will not be binding on parties alleged to be represented. This article explores those risks and suggests changes in the representation doctrine. This draft of the article has not yet been edited by the Real Property, Probate and Trust Journal.
Keywords: representation, virtual representation, estate, trusts, trust proceedings, minors, unborns, Uniform Trust Code
JEL Classification: K11, K19, K39
Suggested Citation: Suggested Citation