The New York Law of Interstate Succession Compared with the Uniform Probate Code: Where There\u27s No Will There\u27s A Way

The purpose of this Article is to analyze, compare, and contrast New York’s law of intestacy with that of the Uniform Probate Code (Code). The Article may serve as a basis for estimating the impact on existing concepts of descent and distribution should New York adopt the Code. It addresses itself to the law of intestate succession, delves into present New York law on the subject, examines corresponding sections of the Code, analyzes the differences, and arrives at an evaluation of the benefits and detriments that adoption of the Code would bring. The final analysis reveals that, on balance, the Code’s treatment of intestate succession is preferable to present New York law

Sveen v. Melin

Does the retroactive application of a revocation-on-divorce statute to contracts entered into prior to the enactment of the statute violate the Contracts Clause of the Constitution

The New York Law of Intestate Succession Compared with the Uniform Probate Code: Where There\u27s No Will There\u27s a Way

The purpose of this Article is to analyze, compare, and contrast New York’s law of intestacy with that of the Uniform Probate Code (Code). The Article may serve as a basis for estimating the impact on existing concepts of descent and distribution should New York adopt the Code. It addresses itself to the law of intestate succession, delves into present New York law on the subject, examines corresponding sections of the Code, analyzes the differences, and arrives at an evaluation of the benefits and detriments that adoption of the Code would bring. The final analysis reveals that, on balance, the Code’s treatment of intestate succession is preferable to present New York law

Revisiting the Revolution: Reintegrating the Wealth Transmission System

Thirty years ago, John Langbein published “The Nonprobate Revolution and the Future of Succession.” The article celebrated testators’ newfound ability to avoid the expense and delay of the probate court system by holding assets in a variety of non-probate devices, such as retirement and bank accounts with beneficiary designations and revocable trusts. Langbein highlighted problems the revolution might generate and predicted how they might be resolved. Since then, significant problems have indeed developed. First, wills law doctrines designed to effectuate intent of testators have not been universally extended to non-probate transfers. Second, the fragmentation of the wealth transmission process has created coordination problems that did not exist when almost all of a decedent’s assets passed through the decedent’s probate estate. This has increased opportunities for attorney error. Even when attorneys get it right, rogue clients can easily undermine a carefully constructed estate plan, and the law does not always allow courts to correct these errors. Third, the non-probate system increases the potential for wrongful takers to dissipate assets before rightful beneficiaries have an opportunity to make claims to those assets. As we explain, neither lawyers, financial institutions nor the legal system have successfully resolved these issues. We advance several proposals that might ameliorate the costs of the non-probate system, such as conferring broader power on estate executors to coordinate non-probate assets, and a voluntary registration system that would reduce the risk of inadvertent conflicts among wealth transmission documents

Shape up or Ship Out: Accountability to Third Parties for Patent Ambiguities in Testamentary Documents

The attorney\u27s preparation of a testamentary document (hereinafter sometimes referred to as a will or revocable trust) should clearly and accurately reflect the client\u27s last wishes. Although these testamentary documents should reflect the client\u27s intent, they often fall short of accomplishing that goal. There are numerous examples of will and trust construction cases that exhaust tremendous resources in an effort to ascertain the client\u27s wishes or intent. Many of these cases involve the construction of patent and/or latent ambiguities which should have been resolved by appropriate drafting. This article\u27s scope is limited to patent ambiguities caused by the attorney\u27s negligence and their detrimental impact on third parties. In these situations, the patent ambiguity is easily identified and the claim of negligence is clear. A patent ambiguity is obvious from the face of the will and is easily discovered prior to the testator\u27s death. For example, a patent ambiguity exists where two different provisions of a will dispose of the same plot of land to different devisees. The attorney\u27s close reading of the will should have discovered this error. The attorney\u27s failure to correct the patent ambiguity prior to the testator\u27s death has detrimental consequences for the third party harmed. Extrinsic evidence is generally not admissible to resolve a patent ambiguity, because courts are unwilling to add to or detract from the written words of the will

Perpetuities Refinement: There Is an Alternative

A new uniform law is in the offing: a Uniform Statutory Rule Against Perpetuities (USRAP). The law is based on the wait-and-see approach to the common law Rule Against Perpetuities. Under this approach, a waiting period is prescribed to see whether the contingency which renders a nonvested interest void under the common law Rule actually occurs. The purpose of this article is twofold: first, to demonstrate why, in response to Professor Leach\u27s basic question, we should not wait-and-see ; second, to offer constructive alternatives to the wait-and-see approach. Part I of this article identifies those areas of agreement between wait-and-see advocates and opponents, including the acknowledged desirability for some rule against perpetuities. In part II, the case for wait-and-see is summarized and the three major wait-and-see methods are described. These methods include: (1) the causal relationship method, (2) a measuring lives version under the Restatement (Second) of Property, and (3) the newly-unveiled proxy method under the USRAP. A recent debate between Professors Dukeminier and Waggoner highlights the controversy among scholars regarding the appropriate methodology under a wait-and-see approach. Part III presents the case against the wait-and-see approach by addressing several underlying, but unfounded, assumptions. The most crucial assumption under wait-and-see is that a severe enough problem exists to warrant its adoption. Research, however, reveals a perpetuities violation averaging only one relevant case per year during the eight-year period, 1978-1985. Part IV makes the case for refining the common law Rule, based in part on a critique of an erroneous decision by the Indiana Supreme Court in 1985. In addition, a statutory scheme for refinement is offered. Although the statutory package partially relies on existing or proposed solutions, the overall package has never been detailed. In the end, rejection of wait-and-see legislation generally, and the USRAP specifically, is urged. Adopting the wait-and-see approach to the common law Rule Against Perpetuities would be tantamount to buying and using an atomic cannon to kill a gnat

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