Conflict-of-Interest-Infected Virtual Representatives and a Cure

43 Pages Posted: 18 Jun 2019

See all articles by Thomas Simmons

Thomas Simmons

University of South Dakota Knudson School of Law

Date Written: June 9, 2019

Abstract

The general rule that a person cannot be bound by an agreement or a decree unless she received notice encounters practical difficulties where a person is missing, incompetent, a minor, unascertained, or even unborn. In many trust proceedings, all beneficiaries are necessary parties. But short of appointing a guardian ad litem to represent persons who are difficult to notice, uncertainty and inefficiencies would be encountered were it not for the doctrines of representation and virtual representation. Under these common law doctrines persons – even if not yet in existence – can be held to be parties to a proceeding “virtually so.” The doctrine was developed by courts in the 1800s and was significantly expanded by New York by statute in 1967. Fifty years later, South Dakota enacted a comprehensive and detailed statutory scheme for virtual representation in trust matters, whether in judicial or non-judicial proceedings. South Dakota has quietly revolutionized virtual representation by validating proceedings even where a representative has a conflict of interest. This article contextualizes, comments upon, and explicates that statutory scheme, including statutory amendments enacted in 2018.

Keywords: Trusts, Representation, Virtual Representation, Reformation

JEL Classification: K19

Suggested Citation

Simmons, Thomas, Conflict-of-Interest-Infected Virtual Representatives and a Cure (June 9, 2019). South Dakota Law Review, Vol. 64, No. 1, 2019, Available at SSRN: https://ssrn.com/abstract=3401541

Thomas Simmons (Contact Author)

University of South Dakota Knudson School of Law ( email )

414 E. Clark Street
Law School suite 212
Vermillion, SD 57069
United States
605.658.3533 (Phone)
605.677.5417 (Fax)

HOME PAGE: http://www.usd.edu/faculty-and-staff/Tom-E-Simmons

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