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

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

Incomplete Wills

This Article explores the problems that arise when a will fails to dispose of an individual\u27s entire estate, so that she dies partially testate and partially intestate. The questions then raised include (1) whether provisions contained in the will purporting to redefine the individual\u27s intestate heirs should supersede the statutory designations of those heirs, (2) whether inter vivos gifts to heirs should qualify as advancements on the inheritances of those heirs under conditions of partial intestacy, and, most broadly, (3) whether courts should fill in the incomplete portion of an individual\u27s estate plan by extrapolating from the distributive preferences set out in the fragmentary will or by independent reference to the statutory rules of intestacy. The intent of testators is bound to vary on each of these points, this Article argues. In order to account for this predictable variation, lawmakers should grant courts limited discretion to resolve each of these issues on a case-by-case basis, taking into consideration both intrinsic and extrinsic evidence. Such an approach would differentiate the rules of partial intestacy from complete intestacy, which operates according to mechanical rules. This Article suggests policy reasons for drawing that distinction. The Article supports its analysis with empirical evidence drawn from data sets of published cases, a resource not previously exploited in connection with quantitative studies of inheritance law