Forty Years of Codification of Estates and Trusts Law: Lessons for the Next Generation

Abstract

In this paper we develop two theses. First, we argue that uniform law proposals that ask courts and practitioners to abandon revered legal traditions and ways of thinking about estates and trusts, even when they are intent-furthering proposals, face resistance until in time the glories of the past and the risks of a new legal regime fade in importance in legal thought. Second, we argue that, especially within an environment in which states seek to gain competitive advantage over their counterparts in other states, the glories of the past and the risks of a new legal regime fade fastest when a uniform law proposal limits the effect of intent-defeating rules. Uniform laws tend to fall into three categories: (1) statutes that usurp older statutory-based laws; (2) statutes, typically remedial in nature, that reverse the common law; and (3) statutes that predominantly codify the common law. We look at examples of each to show how the interplay between revered legal traditions and donative freedom affects the reception of uniform law proposals. We also pay particular attention to intent-defeating common law doctrines and the risks that uniform law drafters face when they attempt to codify them in an environment where there is stiff jurisdictional competition for estate planning business.