Volume 1
Donative transfers are at the core of family estate planning. This first volume of a new Restatement that will eventually replace Restatement Second, Property (Donative Transfers), offers a comprehensive treatment of the law of probate transfers. Technically sophisticated and socially alert, it supersedes and considerably expands upon the material on wills found primarily in Chapter 33 of the prior Restatement and includes extensive coverage of intestate transfers as well. The enhanced treatment of wills in Restatement Third is reflected in the new work’s subtitle.
Volume 1, now available, contains the complete text of Division I of Restatement of the Law Third, Property (Wills and Other Donative Transfers). As a self-contained segment covering probate transfers, both testate and intestate, this initial portion of a new Donative Transfers Restatement, approved at the 1998 ALI Annual Meeting, has been published in advance of the remainder of the Restatement, still in progress. The next volume to be published will cover nonprobate transfers, protective doctrines, and construction, reformation, and modification of donative documents.
Drawing significantly and substantially on contemporary statutory developments and recognizing the close relationship between statute and decisional law in this field, Volume 1 articulates rules for probate transfers that seek to effectuate the evident or presumed donative intentions of the deceased, while providing safeguards against the defeat of those purposes by fraud or mistake. In particular, it develops a harmless-error rule, which seeks to balance the need for appropriate formality in drafting a will with the aim of carrying out the deceased’s intentions to the fullest extent permitted by law.
Chapter 1 describes the probate estate and sets forth the rules of eligibility for those who might receive the decedent’s property.
Chapter 2 covers the law of intestacy and articulates the "default" rules that direct transmission of the property in the absence of a will or will substitute.
Chapter 3 deals with the requisite formalities for the execution of wills and addresses attestation, holographic wills, and the "harmless-error" rule. This Chapter also considers matters such as republication by codicil, integration of multiple pages or writings into a single will, incorporation by reference, the doctrine of independent significance, pour-over devises, and testamentary disposition by an unattested writing.
Chapter 4 presents the rules governing the revocation of wills, including the revival of revoked wills and ineffective revocation (dependent relative revocation).
Chapter 5 considers the significance to be accorded to various events occurring after the execution of a will but prior to the donor’s death. It covers the classification of devises; the failure ("ademption") of specific devises by extinction; the effect of stock splits, stock dividends, and other distributions on devises of a specified number of securities; ademption by satisfaction; and antilapse statutes.
For further details, see the accompanying abbreviated Table of Contents.
This authoritative work combines clear black-letter provisions with extensive explanatory Comments, clarifying Illustrations, and detailed Statutory and Reporter’s Notes. The Comments thoroughly explicate the background, rationale, and applicability of the black-letter provisions, while the Statutory and Reporter’s Notes document and discuss the sources for the black letter and Comments and provide a convenient basis for further research. Throughout this Restatement, there are frequent comparisons to the provisions of both the Original and the Revised Uniform Probate Code. The work is further enhanced by tables of cases, statutes, parallel tables showing corresponding Restatement Third and Restatement Second section numbers, a table of cross-references to the West Digest System and ALR annotations, and by an Index.
Professor Lawrence W. Waggoner of the University of Michigan Law School is Reporter for ALI’s new Restatement of the Law Third, Property (Wills and Other Donative Transfers), and Professor John H. Langbein of Yale Law School is Associate Reporter. Professor Waggoner was Chief Reporter for the Uniform Probate Code.
The remaining Divisions of this Restatement will be published subsequently. Division II will cover nonprobate transfers (outright gifts and will substitutes). Division III will deal with a variety of protective doctrines, such as the requirement that a donor have the capacity to make a donative transfer and be free from fraud and undue influence. Division IV will treat the construction, reformation, and modification of donative documents. (Division IV has already been approved by the Institute and is available in Tentative Draft No. 1 (1995, Order Code 5526).-- Order this item See below under Other ALI Publications.) Division V and VI will turn, respectively, to class gifts and powers of appointment. Division VII will address present and future interests. Division VIII, the final portion, will consider social restrictions on the freedom of disposition, including the Rule Against Perpetuities.
1999, hardbound, 500 pp., Order Code 6133, $95 plus shipping/handling-- Order this item
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ABBREVIATED TABLE OF CONTENTS
Foreword
Introduction
DIVISION I
PROBATE TRANSFERS
(WILLS AND INTESTACY)
Chapter 1 Definitions and Basic Principles
1.1 Probate Estate
1.2 Requirement of Surviving the Decedent
1.3 Noncitizens
Chapter 2 Intestacy
2.1 General Principles and Definitions
2.2 Intestate Share of Surviving Spouse
2.3 Intestate Share of Surviving Descendants
2.4 Intestate Share of Surviving Ancestors and Collateral Relatives
2.5 Parent and Child Relationship
2.6 Advancements
2.7 Negative Wills
Chapter 3 Execution of Wills
Part A. Execution Formalities
3.1 Attested Wills
3.2 Holographic Wills
3.3 Excusing Harmless Errors
Part B. Related Doctrines
3.4 Republication by Codicil
3.5 Integration of Multiple Pages or Writings Into a Single Will
3.6 Incorporation by Reference
3.7 Independent Significance
3.8 Pour-Over Devises
3.9 Testamentary Disposition by Unattested Writing
Chapter 4 Revocation of Wills
4.1 Revocation of Wills
4.2 Revival of Revoked Wills
4.3 Ineffective Revocation (Dependent Relative Revocation)
Chapter 5 Post-Execution Events Affecting Wills
5.1 Classification of Devises
5.2 Failure ("Ademption") of Specific Devises by Extinction
5.3 Effect of Stock Splits, Stock Dividends, and Other Distributions on
Devises of a Specified Number of Securities
5.4 Ademption by Satisfaction
5.5 Antilapse Statutes
Table of Cases
Table of Statutes
Parallel Tables Showing Corresponding Restatement Third and Restatement Second Section Numbers
Table of Cross References to Digest System Key Numbers and ALR Annotations
Index
REPORTER
Lawrence W. Waggoner, University of Michigan Law School, Ann Arbor, Michigan
ASSOCIATE REPORTER
John H. Langbein, Yale Law School, New Haven, Connecticut
ADVISERS
Shirley S. Abrahamson, Chief Justice, Wisconsin Supreme Court, Madison, Wisconsin
Jackson M. Bruce, Jr., Milwaukee, Wisconsin
Charles A. Collier, Jr., Los Angeles, California
Mary Louise Fellows, University of Minnesota Law School, Minneapolis, Minnesota
Susan F. French, University of California at Los Angeles School of Law, Los Angeles, California
E. James Gamble, Bloomfield Hills, Michigan
Edward C. Halbach, Jr., University of California at Berkeley School of Law, Berkeley, California
Joseph Kartiganer, New York, New York
Ronald C. Link, University of North Carolina School of Law, Chapel Hill, North Carolina
William M. McGovern, Jr., University of California at Los Angeles School of Law, Los Angeles, California [from 1997]
Malcolm A. Moore, Seattle, Washington
Jeffrey N. Pennell, Emory University School of Law, Atlanta, Georgia
Stewart G. Pollock, Justice, Supreme Court of New Jersey, Morristown, New Jersey [from 1994]
Eve M. Preminger, Judge, New York County Surrogate’s Court, New York, New York [from 1993]
Floyd E. Propst, III, Judge, Probate Court of Fulton County, Atlanta, Georgia
James L. Robertson, Jackson, Mississippi
Pam H. Schneider, Philadelphia, Pennsylvania
Jeffrey A. Schoenblum, Vanderbilt University School of Law, Nashville, Tennessee
Robert A. Stein, Executive Director, American Bar Association, Chicago, Illinois
Richard V. Wellman, University of Georgia School of Law, Athens, Georgia
Herbert P. Wilkins, Chief Justice, Supreme Judicial Court of Massachusetts, Boston, Massachusetts
Raymond H. Young, Boston, Massachusetts
SPECIAL CONSULTANT TO THE REPORTER
Mary Ann Glendon, Harvard University Law School, Cambridge, Massachusetts
EX OFFICIO
Roswell B. Perkins, New York, New York
Chair of the Council, The American Law Institute
Charles Alan Wright, Austin, Texas
President, The American Law Institute
Geoffrey C. Hazard, Jr., Philadelphia, Pennsylvania
Director, The American Law Institute