Document Type

Article

Publication Date

2007

Abstract

The new Restatement (Third) of Property (officially the Restatement (Third) of Property: Wills and Other Donative Transfers), in tandem with the Restatement (Third) of Trusts, is systematically proceeding through the whole field of wills, will substitutes, trusts, and estates. Both of the new Restatements should prove to be handy resources for trust and estate lawyers, not only in preparing to argue cases at both trial and appellate levels, but also in the everyday work of drafting and construing dispositive provisions in wills, trusts, and other types of donative documents. Each Restatement section is followed by a set of Comments explaining and illustrating the black letter and by Reporter's Notes collecting relevant cases, statutes, and secondary sources. The division of coverage between the Restatement of Property and the Restatement of Trusts is governed more by the history of the American Law Institute (the ALI or Institute) than by logic. The Trusts Restatement is primarily concerned with the validity and administration of trusts, including fiduciary duties of trustees. The Property Restatement is primarily concerned with the validity of gifts, wills, and will substitutes, but also with the construction of the dispositive provisions in trusts as well as those in wills and will substitutes. Consequently, in construing the meaning of a dispositive provision in a trust, the relevant Restatement is the Restatement of Property, not the Restatement of Trusts. The first two volumes of the Restatement (Third) of Property have now been approved by the ALI and published in hard-bound volumes. Volume 1, published in 1999, covers intestacy, execution and revocation of wills, and post-execution events affecting the meaning of wills, such as ademption, lapse, and antilapse statutes. Volume 2, published in 2003, covers gifts, will substitutes, capacity, undue influence, the elective share of the surviving spouse,' construction,2 reformation,3 and modification of wills4 and other donative documents.5 Volume 3, which is scheduled to be published in 2007, will cover class gifts and powers of appointment. Although the material on class gifts, the subject of this brief survey, is not yet published in a hard-bound volume, it is published in soft-cover as Tentative Draft No. 4 (2004), and has been approved in principle by the ALI at the 2004 annual meeting. The class-gift material is available from the AL 6 and is also accessible online from Westlaw and Lexis. A parallel project is currently working its way through the processes of the Uniform Law Commission (ULC) for amending the Uniform Probate Code (UPC). That project is not as comprehensive as the class gift material in the new Restatement, but does overlap the rules of construction on questions of status of adopted children, nonmarital children, and children of assisted reproduction.7 The drafting committee has now approved measures that are largely consistent with the Restatement. Following ULC procedures, the current draft will be given a first reading at the 2007 annual meeting and, after further review and refinement, a final reading and approval at the 2008 annual meeting. To the extent that the UPC amendments, as finally approved, turn out to be in accord with the Restatement, the two will reinforce each other and strengthen the credibility of both.


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