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Home > Journals > Michigan Law Review > MLR FI > Vol. 111

 

Abstract

Throw a stone into a room full of law professors, and it is virtually impossible to hit someone who will defend perpetual trusts. Yet since 1995, eighteen states have repealed their rules against perpetuities, and there are now twenty-one states that permit trusts to last forever. Many academics have responded with a virtual pile-on, calling the repeals a "race to the bottom" at best and "loony" at worst. Lawrence Waggoner, Professor Emeritus at the University of Michigan School of Law and Reporter for the Restatement (Third) of Property: Wills and Other Donative Transfers, has made another contribution to the scrum. Professor Waggoner does not just dislike perpetual trusts. They are, in his description, "folly." Professor Waggoner nominally aims his critique at wealthy individuals who desire perpetual trusts and the lawmakers who enable them by passing favorable legislation. He lodges five specific objections: (1) after a certain period of time, the beneficiaries of perpetual trusts will be insufficiently related to the trust creator; (2) after a certain period of time, there will be too many beneficiaries of a perpetual trust; (3) perpetual trusts will be expensive to manage; (4) outdated trust instruments will hamper management of perpetual trusts; and (5) trustee turnover will negatively impact perpetual trusts. This Essay considers each of his objections in turn, and concludes that Professor Waggoner's concerns are misplaced and exaggerated. Perpetual trusts raise important policy concerns, to be sure, but "folly" is in the eye of the beholder. The legal system does not yet have enough experience with perpetual trusts to understand their full implications. A more prudent approach would be to embrace a variation on the long-standing approach to perpetuities problems: let's wait and see.

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