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Review of Reviews: “Trusts and Estates: Implementing Freedom of Disposition,” 58 St. Louis U. L. J. 3 (2014 forthcoming)

Review of Reviews: “Trusts and Estates: Implementing Freedom of Disposition,” 58 St. Louis U. L. J. 3 (2014 forthcoming)

Robert H. Sitkoff, John L. Gray Professor of Law, Harvard University, Cambridge, Mass.

How many pages might it take to review the whole estate-planning field? If you’re Robert H. Sitkoff, the John L. Gray Professor of Law at Harvard University, the answer is about 20 to 25 pages. In this introduction to a special issue of the St. Louis University Law Journal on teaching trusts and estates, Prof. Sitkoff outlines and introduces the whole field, from intestacy through wills to trusts and trust modifications, with short segments on charitable trusts and wealth transfer taxes. Organized around the general theme that in the United States, our default position gives property owners the freedom to dispose of property as desired, the article identifies the policies that underlie the rules and doctrines we work with every day. Examples include: why wills must be executed with more formalities than inter vivos trusts; why third-party spendthrift trusts are allowed, but first-party spendthrift trusts are treated with more suspicion; and why state attorneys general have the role of supervising charitable trusts. He includes generous citations to leading cases and important articles that can provide more in-depth coverage.

This article would be very useful for young lawyers new to the estate-planning-practice who are beginning to absorb requirements and strategies but could use a framework as they learn. Lawyers in other disciplines who encounter estate-planning situations, whether planning or litigation, could benefit as well, as would even the non-lawyer who understands the practice but has never had the opportunity to think about the theory. For example, consider this explanation of the law of will contests:


The law attempts to balance the risk of giving effect to an involuntary act of testation (a false positive) with the risk of denying effect to a voluntary one (a false negative). If courts are too reluctant to set aside a will, the unscrupulous will find profit in subverting vulnerable testators. But if courts are too willing to set aside a will, disappointed expectant beneficiaries will find profit in holding up an estate with a contest meant to extract a settlement. The difficult task for lawmakers is in striking the right balance. And the difficult task for practicing lawyers is in planning for and avoiding a will contest if warning signs are present. 


Two issues touched on in the article are worth a special mention. One is the apparent willingness that donors (and testators) have to give others the ability to modify their stated objectives. Advisory committees, trust protectors and other similar arrangements often have broad apparent authority to modify even essential terms of a trust. The wisdom of such arrangements, and the ways in which courts may construe them, is an emerging issue to be followed closely.

Another area of interest is the policy underlying third-party spendthrift trusts. If larger numbers of trusts last for increasing terms, we can consider whether, by legislation or common law innovation, creditors will find more access to the interests of beneficiaries, if not to the trust assets directly. Plainly speaking, when ought my right to protect my great-grandchildren from creditors yield to society’s conclusion that my great-grandchild tortfeasor ought not benefit from my gift while leaving a trail of the injured behind? These are issues for another day, but practitioners do well to monitor the policy discussions surrounding estate planning, many of which are centered in the academy.
Prof. Sitkoff’s article is a good entry point to many of those discussions.