Legislative Lapses: Some Suggestions for Probate Code Reform in Washington

This Article points out a number of lapses in the law of wills in Washington, which were encountered in the course of research for a treatise on that subject, and suggests possible ways to reconcile or eliminate them. Because that research was probably the first attempt in some time to look at the entire law of wills in Washington as a unified whole, it afforded the first opportunity in many years to discover and consider some of the more obscure (as well as the more obvious) lapses in the law. In addition, the Article will discuss areas of the law that are nominally consistent, but in the author’s opinion are in need of rethinking in light of current social or legal developments

Legislative Lapses: Some Suggestions for Probate Code Reform in Washington

This Article points out a number of lapses in the law of wills in Washington, which were encountered in the course of research for a treatise on that subject, and suggests possible ways to reconcile or eliminate them. Because that research was probably the first attempt in some time to look at the entire law of wills in Washington as a unified whole, it afforded the first opportunity in many years to discover and consider some of the more obscure (as well as the more obvious) lapses in the law. In addition, the Article will discuss areas of the law that are nominally consistent, but in the author’s opinion are in need of rethinking in light of current social or legal developments

Prior Inconsistent Statements: Presently Inconsistent Doctrine

The common law has come a long way since Sir Walter Raleigh was convicted of treason on the basis of accusations contained in unproduced letters and the hearsay declarations of unproduced witnesses. However, despite the painstaking development and innumerable formulations and reformulations of the hearsay rule over the past several centuries, there are areas of that body of law which are as yet unsettled and the subject of heated controversy. One such area is that of prior inconsistent statements of witnesses, the controversy over which has continued over the years and has surfaced once again with promulgation of the new Federal Rules of Evidence. Legal theories, like social and cultural philosophies, often follow marked trends and patterns. A few years ago exclusionary rules were on the ascendancy, especially in the area of criminal law, while today it is increased admissibility which is in vogue. Both had their advocates throughout common law history, and will probably always find support. It is a reflection of this current trend that the traditional rules governing substantive use of prior inconsistent statements, once unquestioningly accepted, have since been roundly criticized by authorities from Wigmore to the Supreme Court. The purpose of this article is to attempt to redress the balance just slightly, by setting out some of the counterarguments which lie behind the traditional substantive exclusion of prior inconsistent statements. An attempt will be made to emphasize practical, rather than merely theoretical, considerations

Trusts: Consequences of Attorney\u27s Good Faith Representation of Adverse Parties in Trust Administration

In the course of estate and trust administration, an attorney or a single law firm may be in the position of representing both the trustee and beneficiaries of a particular trust. In any such situation the attorney represents adverse parties since the beneficiaries may wish to enforce the trust provisions against the trustee. Nevertheless, the attorney might feel impelled to represent such adverse parties, especially where they are amicable, where the attorney has personal familiarity with the parties and the property, or where the parties wish to avoid the added expense of obtaining independent counsel. Potter v. Moran, however, indicates that such dual representation may deprive accountings and other proceedings between a trustee and beneficiaries of res judicata effect. Therefore, in deciding whether to obtain independent counsel, an attorney and his clients should consider both the practical advantages and the hazards of even the most well-intentioned dual representation

Tribute to James E. Beaver

Tribute to Professor James E. Beaver 1930-199

When Words Fail Me: Diagramming the Rule Against Perpetuities

Professor Reutlinger discusses the difficulties in teaching the Rule Against Perpetuities—the rule does not lend itself to mere verbal explanation and therefore makes it difficult to teach only through the Socratic method. In this article he offers an explanation and various examples of his bridging the gap diagrams as he now uses them in his classroom discussions on the Rule Against Perpetuities

Trusts: Consequences of Attorney\u27s Good Faith Representation of Adverse Parties in Trust Administration

In the course of estate and trust administration, an attorney or a single law firm may be in the position of representing both the trustee and beneficiaries of a particular trust. In any such situation the attorney represents adverse parties since the beneficiaries may wish to enforce the trust provisions against the trustee. Nevertheless, the attorney might feel impelled to represent such adverse parties, especially where they are amicable, where the attorney has personal familiarity with the parties and the property, or where the parties wish to avoid the added expense of obtaining independent counsel. Potter v. Moran, however, indicates that such dual representation may deprive accountings and other proceedings between a trustee and beneficiaries of res judicata effect. Therefore, in deciding whether to obtain independent counsel, an attorney and his clients should consider both the practical advantages and the hazards of even the most well-intentioned dual representation

Policy, Privacy, and Prerogatives: A Critical Examination of the Proposed Federal Rules of Evidence as They Affect Marital Privilege

This article examines all aspects of proposed federal rules of evidence affecting marital privilege in the United States. It also provides an explanation of the reasons advanced by the Advisory Committee for abolition of martial and other state-created privileges; Common law origins of marital privilege

The Statutory Community Property Agreement as a Will Substitute on the Death of the Second Spouse

This article reviews an amendment to the statutory community property agreement. It outlines intricacies of the statute, and includes in its discussion many noteworthy cases

Appendix: The Sleeves From our Vest: Naming a Perpetuities Non-event

Professors Mark Reutlinger and John Weaver examine the conceptual dilemma that Professor Reutlinger encountered in the course of developing the series of diagrams to illustrate the Rule Against Perpetuities described in the accompanying article. To describe it briefly (if not simply), the perpetuities period for a special or testamentary power of appointment begins when the power is created (not exercised), and it ends when the appointed interest vests. Applying the relation back doctrine, the appointment is treated, for perpetuities purposes, as if it were a gift by the donor, rather than the donee. Under the second look doctrine, however, one may take into consideration events and circumstances existing at the time of exercise in determining whether, when viewed as of the time of creation, the appointed interest violates the Rule