Spendthrift Trusts and Public Policy: Economic and Cognitive Perspectives

In Part I, I shall explore restraints against voluntary alienation: that is, restrictions on a beneficiary\u27s right to terminate the arrangement-to take the money and run. In Part II, I shall proceed to restraints against involuntary alienation: that is, restrictions on creditors\u27 rights to reach the trust corpus in order to satisfy their claims. Finally, in Part III, I take up the refinement of spendthrift trust doctrine: assuming the expediency of a general warrant to create spendthrift trusts, should lawmakers nonetheless carve out exceptions to their effectiveness

Formalizing Gratuitous And Contractual Transfers: A Situational Theory

By tradition, gifts, wills, and contracts are formalized according to protocols established within each legal category. This Article examines the policies that underlie these “formalizing rules” and concludes that the utility of those rules depends fundamentally on the background conditions under which a gift, will, or contract occurs. Those background conditions, rather than the category into which the transfer falls, dictate the optimal formalizing rule for a transfer. In light of this observation, this Article proposes an integrated approach to formalizing rules that varies the required formalities for a transfer on the basis of situational criteria rather than the prevailing categorical ones

Testation and the Mind

This Article explores the panoply of state-of-mind rules in inheritance law. In areas of law concerned with wrongdoing, consideration of mental states achieves specific deterrence and moral justice. By comparison, in the inheritance realm, I argue that consideration of mental states can serve to economize on decision costs. The Article looks at state-of-mind rules through this prism and also analyzes the public policy of these rules from the perspective of modern research into psychology. Finally, the Article examines state-of-mind rules comparatively, identifying inconsistencies between them that require justification. The Article closes by observing potential expansions of the model and applications in other areas of law

When Beneficiaries Predecease: An Empirical Analysis

Under current law, bequests to beneficiaries who predecease the testator “lapse” to the beneficiary of the residuary, unless they are preserved for the descendants of predeceased beneficiaries under an “antilapse” statute. The beneficiaries covered by antilapse statutes vary from state to state, but in most states today the statutes apply only to blood relatives of the testator as distant as first cousins. This Article examines the public policy of antilapse statutes, assessing them by undertaking the first-ever survey of popular preferences concerning the matter. Harvesting evidence for five types of beneficiaries, the study finds that the prevailing structure of antilapse statutes is both over- and under-inclusive. On one hand, among beneficiaries who comprise blood relatives, most respondents prefer to create substitute bequests only for descendants of predeceased children. Lawmakers should strike other relatives from the statutes’ coverage. On the other hand, most respondents would create substitute bequests for their descendants if their spouse predeceased them. Lawmakers should extend the range of the statutes accordingly. Finally, this Article advocates enhancing courts’ power to deviate from mechanical rules of lapse in situations where testamentary intent is less predictable