The Twenty-First Century Revolution in Conflict of Trust Laws

Abstract

There is broad consensus that the law of conflict of trust laws is outdated. Both the American Law Institute and the Uniform Law Commission have initiated reform projects to address this obsolescence. But there is not a consensus around what went wrong or how to fix it. This article, prepared for a Symposium on Conflict of Laws in Trusts and Estates, fills that gap by providing a historically, theoretically, and institutionally grounded account of the rise and fall of the old regime with an eye toward informing the ongoing law reform efforts. We first show that the governing regime—that of the 1971 Restatement (Second) of Conflict of Laws—was purpose-built to encode then-prevailing norms of trust law and practice. We then explain how and why modern trust law and practice has departed from those norms, upending the Restatement’s foundational assumptions. In the Restatement’s era, conflicts of trust laws rarely arose and were easily resolved through reliance on the locational anchors of land, probate, and court supervision. Today, by contrast, provoking a conflict of trust laws is a routine estate planning strategy, and the locational anchors of land, probate, and court supervision have become unmoored. Indeed, our account recasts nearly every significant development affecting trust law and practice over the past fifty years as a contributor to the revolution in conflict of trust laws. Informed by this understanding of the old regime’s obsolescence, we offer tentative suggestions for the law reform efforts currently underway.

Keywords: conflict of trust laws, conflict of laws, trust law, Restatement (Second) of Conflict of Laws, Restatement (Third) of Conflict of Laws, Austin Wakeman Scott, situs, administration, validity, construction, interpretation, forum state, public policy

JEL Classification: K11, K34, K41