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New Developments in Fifteenth-Century Ottoman Trust Law and the Fate of the Hagia Sophia

The Hagia Sophia Case, Recent Case: Daniștay, Onuncu Daire [Council of State, Tenth Chamber] Matter No. 2016/16015, Decision No. 2020/2595, July 2, 2020, 134 Harv. L. Rev. 1278 (2021).

English legal historian Frederic William Maitland declared in the late 19th century, “[i]f we were asked what is the greatest and most distinctive achievement performed by Englishmen in the field of jurisprudence I cannot think [of] any better answer . . . than . . . the development from century to century of the trust idea.”1 Maitland, indeed, had good reason to applaud the innovation of trust law. But his claim of English exceptionalism may have been a bit immodest.

As beautifully recounted in an unattributed student case note,2 English legal tradition is not alone in recognizing beneficial ownership, the concept that underlies the enduring ingenuity of trust law. The Hagia Sophia Case: Turkey’s Highest Administrative Court Annuls Ataturk’s 1934 Decision Converting the Hagia Sophia into Museum, reveals that the validity of a fifteenth-century Islamic charitable trust emerged in 2020 as a pivotal question on appeal to Turkey’s highest administrative court. In that case, the petitioner sought to invalidate the conversion of one of Istanbul’s famous landmarks, the Hagia Sophia, from an active mosque into a public museum.

Built by the Romans in 537, Turkey’s renowned marvel of Byzantine architecture existed for nearly a millennium as the flagship cathedral of eastern Christianity. But in the aftermath of Emperor Constantine XI’s military defeat in 1453 by the Ottoman Turks, Sultan Mehmed II converted the Hagia Sophia into a mosque and endowed the property in perpetuity as an Islamic charitable trust. Later adorned by four minarets, the Hagia Sophia was administered according to the terms of Mehmed’s trust for nearly five hundred years until 1934, when Kemal Atatürk, the first president of the newly secular Republic of Turkey, converted the ancient landmark into a public museum. The controversial move surprised both Turks and foreigners alike,3 but it did not immediately transform the landmark into the blockbuster tourist attraction that it later became. By one account, published by the Guardian in 1935, “the most famous Turkish mosque, for all time the greatest triumph of large-scale Byzantine building, [. . .] has tranquilly slipped into the state of a rather empty museum.”4 Attendance improved over time and, by 2019, the Hagia Sophia had become Turkey’s most visited museum.5

The Harvard Law Review case note reveals that, while many commentators attribute the recent decision restoring the Hagia Sophia’s sacred status to an executive fiat by President Recep Erdogan, a Turkish court was actually the mandate’s official source. While it is probably impossible to disentangle this litigation from the influence of domestic politics, analysis of the actual case argued before the Turkish courts offers a fascinating glimpse into the mechanics of medieval Islamic trust law, which, to my surprise, closely resembles doctrines of modern American trust law in certain respects.

In 2016, the Turkish Association for the Protection of Historical Monuments and the Environment filed a petition to reopen the Hagia Sophia as a mosque for Muslim worship. The petition slowly wound its way through the trial and appellate courts until the matter was finally appealed to the Council of State. There, the high court concluded that the 1926 Turkish Civil Code, which governed at the time of the 1934 conversion, preserved an Ottoman doctrine of Islamic trust law which prohibited modification of a charitable trust unless the purpose becomes useless or violates public policy. The Council of State held that, because neither exception applied, Turkish courts have an obligation to carry out the settlor’s intent, a duty that compelled the annulment of Atatürk’s 1934 conversion because that act violated the terms of Mehmed’s charitable trust.

The case note agrees that the Council of State reached the legally correct decision, but the student author offers a fascinating three-part critique of the Council’s application of Ottoman law.

First, the note argues that the court could have more fully addressed the legitimacy of Mehmed’s power to terminate existing rights of Byzantine citizens to use the cathedral for Christian worship. Under the branch of Islamic law followed by the Ottomans, a ruler who prevailed in conquest was required to respect existing property rights, especially for religious sites, but only if the defeated party surrendered. In a conquest by force, like Mehmed’s invasion of Constantinople, the prevailing conqueror could void existing property rights entirely. Conquest by force, therefore, gave Mehmed authority as Sultan to void the rights of Byzantine worshippers to maintain the Hagia Sophia as a Christian cathedral.

Second, the note contends that the court should have analyzed the way in which Mehmed exercised his authority over the Hagia Sophia. Under Islamic law, conquest by force entitled the ruling party to void existing property rights (as noted), but not for the ruler to seize proprietary ownership for himself. Up to one fifth of the conquered land could be endowed for the benefit of the general public while the rest had to be allocated among the soldiers. Thus, Mehmed never owned the Hagia Sophia outright in his individual capacity, as some commentators and historians have claimed, but Mehmed did have a legal right to endow the Hagia Sophia in trust as a mosque for the benefit of the worshipping public. The court could have strengthened its argument by mentioning this point.

Third, the note confronts the court’s failure to explain why Atatürk, as sovereign leader of the prevailing conqueror, lacked authority to modify the terms of Mehmed’s trust. Under one theory of Islamic law, rulers were permitted to modify charitable trusts if the corpus contained income-producing property and the modification implicated a governmental interest. Mosques, however, are not income-producing, so, under that theory, Mehmed’s restriction would be binding against successive rulers. According to another theory, a ruler could add or remove provisions but could not completely repurpose a charitable trust. At least one precedent seems to support the claim that altering the holy status of a mosque would rise to the level of impermissible repurposing.

For me, a reader more familiar with the modern rules of American trust law than sacred cannons from centuries past, what resonated most profoundly about this case was the unmistakable similarity between medieval Ottoman trust law and the modern rules of American trust law that T&E professors teach at law schools today throughout the United States. Indeed, provisions of the Uniform Trust Code, first promulgated in 2000 and since enacted in 35 states, are virtually identical to the Ottoman trust law doctrines that governed in the time of Sultan Mehmed: a valid trust purpose is one that is lawful and not contrary to public policy (UTC §404), and a charitable trust cannot be completely repurposed contrary to the settlor’s intent unless “a particular charitable purpose becomes unlawful, impracticable, impossible to achieve, or wasteful” (UTC §413), to cite two examples.

If Frederic William Maitland could revive himself from the dead, he would surely read this case note about the Hagia Sophia with as much interest as I did. Maitland would be gratified by the flourishing field of modern trust law, which has proven to be one of the most useful and enduring concepts of property law, but, perhaps, he might concede that the idea of beneficial ownership should not be attributed exclusively to English jurisprudence.

  1. F. Maitland, Selected Essays 129 (1936).
  2. According to internal policy, the Harvard Law Review does not attribute author names to unsigned comments.
  3. See Yildiray Ogur, Hagia Sophia: Ataturk and the rich Americans who changed icon’s fate, Middle East Eye (July 23, 2020).
  4. Saint Sophia: conversion into a museum, The Guardian (June 12, 1935).
  5. See The Governorship of Istanbul, The Most Visited Museums of Turkey: Hagia Sophia Museum (Dec. 3, 2020).
Cite as: Reid Weisbord, New Developments in Fifteenth-Century Ottoman Trust Law and the Fate of the Hagia Sophia, JOTWELL (May 16, 2022) (reviewing The Hagia Sophia Case, Recent Case: Daniștay, Onuncu Daire [Council of State, Tenth Chamber] Matter No. 2016/16015, Decision No. 2020/2595, July 2, 2020, 134 Harv. L. Rev. 1278 (2021)), https://trustest.jotwell.com/new-developments-in-fifteenth-century-ottoman-trust-law-and-the-fate-of-the-hagia-sophia/.

‘Till Death Do We Vote: The Thorny Issue of Votes Cast By People Who Die Before Election Day

David Horton, The Dead Voter Rule, 73 Ala. L. Rev. 341 (2021).

It is vastly better to address issues related to voting outside the context of a hotly contested election. Professor David Horton has done an admirable job of doing this with his article that addresses what he accurately refers to as a “comparatively niche issue of predeceasing absentee voters.” (P. 347.) Specifically, he takes on the nuanced and thorny issue of whether to count votes that were cast by a voter who subsequently dies before election day.

In his thought-provoking article, The Dead Voter Rule, Professor Horton notes that in the 2020 national election, more than 100 million voters used absentee ballots and early voting procedures before Election Day. This was out of the approximately 160 million total votes cast. A small number of early voters, however, died before Election Day. When this happens, many states utilize what Professor Horton refers to as the dead voter rule (the “DVR”) to invalidate those votes. While the numbers are small, Professor Horton accurately notes that those votes can alter the outcome of a close election. He argues persuasively that the DVR should be abolished and that we should not wait until we have a really close election to enact reforms.

Part I of the article surveys the rules surrounding early absentee voting around the country. It notes that many states apply the DVR to discard the ballots of people who cast ballots and die before Election Day. Professor Horton explains the history of absentee voting in the United States, noting that it initially emerged in some states to allow soldiers who were away during the Civil War to vote. It expanded after World War II to allow anybody who needed to be away, such as due to illness or traveling for business, to vote. By the late 1970s and 1980s, it expanded again in certain states to allow “no excuses absentee voting.” Similarly, some states began adopting early in-person voting as well. Collectively, these initiatives indicate a growing trend toward allowing “convenience voting.” This trend inevitably raises the question of whether states should honor the votes of people who vote early and pass away before the polls open on “Election Day.”

The article then explores the history of the DVR and notes that the first mention of the DVR seems to be in New Hampshire’s 1921 absentee voting law, which simply held that ballots cast by people who subsequently die before election day would not be counted if the officials charged with counting votes became aware of a voter’s death. Other states subsequently expanded that principle, saying that votes cast by people who die before election day would not be counted. By the 1990s, the DVR was the majority approach throughout the United States.

The rationale given for the DVR is simply that a person must be alive on Election Day to be qualified to vote. Professor Horton refers to this rationale as “rank formalism.” If a person votes and then dies before Election Day, the simplistic argument goes, that person’s vote will not count because they were not qualified to vote on Election Day. But had the person died on Election Day, his or her vote would count even though there is no strong substantive rationale that would justify the differential treatment. Professor Horton notes that, while the DVR is not applied with a great deal of frequency, it is a “visible part of the electoral landscape.” Most recently, in the last election, states rejected 6,599 ballots under the DVR, and that doesn’t count the 20 percent of localities that do not report this data.

Part II of the article evaluates two theories: (1) that the DVR is unconstitutional and (2) that the DVR is normatively flawed. As to constitutionality, it appears possible that intermediate scrutiny might apply to some applications of the DVR because voting is a fundamental right. However, because courts have uniformly held that there is no “right” to vote absentee, a court could simply note that, because it is impossible for a dead person to actually vote on Election Day, candidates are not entitled to count absentee ballots submitted by predeceased voters in their favor.

Professor Horton also highlights a major issue with litigating such a constitutional challenge: standing. Who is able to challenge the DVR? The three potential plaintiffs are (1) estates of decedents who voted and then died, (2) candidates who, in order to win an election, needed the votes of predeceased voters, or (3) living voters who are terminally ill and likely to die before Election Day. As to (1), the estate lacks standing because constitutional rights die with the decedent, and the decedent is necessarily dead at the time of the alleged constitutional violation. As to (2), while the candidate might be able to demonstrate third-party standing, it is still necessary to demonstrate that the voter suffered a constitutional deprivation, which is not possible after death. Finally, as to (3), it impossible to prove that the voter will definitely die before election day, making proof of standing impossible. Professor Horton ultimately concludes that a lack of standing should preclude a successful constitutional challenge to the DVR.

Although the DVR almost certainly would survive a constitutional challenge, Professor Horton argues that the DVR is normatively flawed and should be repealed anyway. Specifically, he argues that there is no persuasive justification for the DVR. His primary point is that the rationale for the DVR, that absentee ballots are not effective until Election Day, is a mere technicality. He argues that the rationale for not letting people vote after dying, either through a representative or through instructions in a will, does not apply to people who have actually cast a vote before dying. It would be inappropriate to allow people who die before attempting to cast a ballot to vote because they can no longer make informed decisions regarding issues presented in the election. Somebody who actually casts a ballot before dying, however, can make an informed decision, like any other early voter. Stated simply, the factors that generally disqualify dead people from voting under the DVR do not apply to living absentee voters who actually vote but happen to die before Election Day.

Another argument that is often made in support of the DVR is that it is administratively difficult to deal with the issue of predeceased voters. Professor Horton correctly notes that the opposite is true. It is administratively less convenient to figure out which voters may have died before Election Day so that their votes can be eliminated. In short, the DVR itself is burdensome to administer, and we would be better off without it.

The final argument often asserted in support of the DVR is that it reduces the risk of fraud. Professor Horton dismisses this allegation by noting that there is astoundingly little actual evidence of voter fraud of any kind in elections in the United States. With respect to absentee ballots, he notes that the conservative Heritage Foundation has identified only 204 cases of fraud involving absentee ballots out of 250 million votes cast in 2020. In short, there simply is no significant evidence of fraud that would support a rule, such as the DVR, that erases legitimately cast votes.

Professor Horton has written a thought-provoking article. While this may be a “niche issue” that will affect relatively few voters, I am persuaded by his arguments. The arguments in support of abolishing the DVR simply outweigh the arguments in support of keeping it in place.

Cite as: Sergio Pareja, ‘Till Death Do We Vote: The Thorny Issue of Votes Cast By People Who Die Before Election Day, JOTWELL (April 11, 2022) (reviewing David Horton, The Dead Voter Rule, 73 Ala. L. Rev. 341 (2021)), https://trustest.jotwell.com/till-death-do-we-vote-the-thorny-issue-of-votes-cast-by-people-who-die-before-election-day/.

Unearthing Posthumous Subordination

Fred O. Smith Jr., On Time, (In)equality, and Death, 120 Mich. L. Rev. 195 (2021).

Fred O. Smith Jr.’s compelling new article, On Time, (In)equality, and Death, is a remarkable inquiry that delves into the posthumous rights of individuals and the risks of subordination that persist even beyond death. Smith identifies “four long-standing ‘rights’ after death” – bodily integrity, dignified interment, protection against undignified disturbance once interred, and control over the disposition of one’s property – and subsequently analyzes the potential that inheres in each category for posthumous subordination. These risks overlap with and undergird each other, discrimination compounding dispossession, but Smith identifies four main mechanisms and details how reliance on these mechanisms increases the likelihood of posthumous subordination.

The first site of subordination is linguistic and discursive. As Smith explains, statutory language used to govern burial practices and acts of desecration rely on terms like “outrage,” “offensiveness,” and “reasonableness.” The problem is that these terms are culturally contingent and “imbued with cultural values and norms.” Bodies have been prepared in different ways, burial has involved many different processes, and mourning practices have ranged from public and vocal, to private and silent. Cultural norms, pinpointed in time, have dictated these practices and the variety of approaches taken to death and care for the dead reminds us that the “outrage” accounted for in statutes is co-extensive with whatever it is that ruling bodies and classes find outrageous at any given moment. It would be interesting to have some examples of what Smith has in mind here as evidence of the cultural contingency of burial practices.

Another mechanism for enabling posthumous subordination is inheritance law’s fixation on the idea of “decedent intent.” This concept, which runs through the domain of death and wealth, is a lodestar for courts and lawmakers. In a leading inheritance case about the Indian Land Consolidation Act and the fractionation of indigenous land, Hodel v. Irving, the Court commented that: “In one form or another, the right to pass on property—to one’s family in particular—has been part of the Anglo-American legal system since feudal times.”1 This statement – filled with tragic irony in its imposition of feudal histories on indigenous testation – belies the fact that freedom of testation (and any concomitant care for decedent intent) was historically the province of white men. The trope of decedent intent, meant to memorialize and actualize posthumous agency can also, then, be used to privilege the wishes of those who were authorized to express them in legal format and disregard the wishes of those who never had the chance to set forth their intentions in a will or other testamentary document. Smith does not dwell on this point but it is worth future explication as contesting and complexifying the concept of freedom of testation gives us a better understanding of the field of wealth transfer, more generally.

Decedent intent also matters, Smith tells us, regarding who will carry out of such intent. Which brings us to the third way in which subordination gets reproduced – through “combined legal and cultural reliance on family members as trustees and stewards of a decedent’s interests and integrity.” Kinship, Smith explains, plays “a paramount role” in the protection of family corpses (just think of Antigone), creates default inheritance rights, and determines supervision of a decedent’s privacy rights. However, families whose legality was historically denied and whose relational ties were violently fractured by law and by custom were and are at a distinct disadvantage, subordinate to those families with legally recognized genealogies and family trees. Smith describes this phenomenon – the “ways that violent, identity-based subordination [have] disrupted some individuals’ relationships with their descendants” – as “lineal alienation.” Because family members are living agents for their dead, Smith points out that lineal alienation not only disturbs inheritance right but also disrupts kinship cycles of care and control that begin at death and ensure proper memorializing.

The last way in which death practices have the potential to recreate oppressive relationships, thereby instantiating posthumous subordination, is through collective memory. Collective memory translates concerns about proper care and respect for the dead from the private, family realm to a squarely public one. Here, Smith taps into current debates about monuments, grave sites, and the built landscape of death and commemoration. Smith claims that “custodians’ treatment of the bodies and images of subjugated, stigmatized deceased persons can render them complicit in additional harm to those victims.” That is to say, those acting in current controversies – such as the treatment of newly discovered slave cemeteries or the display of slave skulls in museum – can posthumously harm communities and populations by “reinforcing their marginal status in our nation’s memory.”

Both historically and currently, America has created and compounded relationships of oppression by “subordinating the memory of the dead on the basis of race, ethnicity, and disability.” Think segregated cemeteries or the mass, unmarked graves of those who died of AIDS-related causes in the 1980s. This posthumous subordination has served to build a selective “memory” of what constitutes our nation and its people and represents the counterpart – silent, unsung, concealed, and subjugated – to memorials and monuments celebrating confederate leaders, eugenicists, and sexual predators. Smith leaves the details of rebuilding our imagined nation to future conversations but states that “[r]efusing to detoxify our collective memory is not only a disservice to ourselves but an encouragement to continued assaults on victims of mass subordination.”

Smith’s article is, then, a launching point for thinking about not only how private processes surrounding death and mourning get coded and codified in our current landscape. This article also prompts consideration about where to begin collective detoxification and how to make symbolic as well as economic reparations. It is an article for the times and an article that can help us better conceptualize and regulate death and the practices around death for the future as well.

  1. Hodel v. Irving, 481 U.S. 704 (1987).
Cite as: Allison Anna Tait, Unearthing Posthumous Subordination, JOTWELL (March 2, 2022) (reviewing Fred O. Smith Jr., On Time, (In)equality, and Death, 120 Mich. L. Rev. 195 (2021)), https://trustest.jotwell.com/unearthing-posthumous-subordination/.

Most People, Most of the Time

Mary Louise Fellows & E. Gary Spitko, How Should Non-Probate Transfers Matter in Intestacy?, 53 U.C. Davis L. Rev. 2207 (2020).

Each moment of every day, many people are living without a formal estate plan and dying without a valid will. Reasons include ignorance, inertia, and choice. Some might not know that they have the ability to transfer property at death; others don’t want to think about the matter or do not care. A slight few might consciously figure that solving who gets what is best left to survivors to sort out, thereby externalizing the effects of their indecision. And there always remains the unlikely possibility that a person will both know, and consciously select, the succession outcomes that intestacy would force. In the latter two instances, those who “choose not to decide [] still have made a choice.” Nevertheless, as Professors Mary Louise Fellows and E. Gary Spitko intimate in How Should Non-Probate Transfers Matter in Intestacy?, individuals who intentionally die without an estate plan are probably rare.

Dying without an enforceable estate plan poses problems because clarity of ownership – knowing who owns what and precisely when – matters. Such deaths are neither new nor novel, with intestacy rules offering a solution. The property will pass to the decedent’s heirs, i.e. those whom state statutes identify as takers in default of a will. Otherwise stated: the property will pass to whomever some set of long-ago legislators (picture that demographic) determined as the most likely (or, as shaded by inherent biases, “appropriate”?) candidates for the decedent’s largesse. While intestacy may provide an efficient solution for distributing the property of decedents who died without manifesting a preference, Professors Fellows and Spitko note the inadequacy of that solution and posit a more intent-effectuating response.

Most notable to critics of current intestacy statutes are the mismatches between the universality of death and the personality of a particular decedent—between objective rule and subjective reality, which describes every decedent’s “intent” even if we can no longer clearly discern it. As Professors Fellows and Spitko note, that asymmetry generates attempts to fit informal or under-recognized relationships into recognized statutory boxes or to determine what sorts of factors can remove a privileged “heir” status once obtained. That problem is exacerbated by time. Just as wills become more ambiguous the more stale they become, intestacy statutes often reflect suppositions about “rightful takers” that don’t square well with modern family dynamics. What would (“should?”) most decedents have wanted, most of the time? The most efficient answer is not necessarily the best. And as both over-and under-inclusive, the statutes often fail to get it right.

At some level, the problems that intestacy statutes solve by default seems dismissible because wills are cheap and easy to create. Would-be intestates accept, or again perhaps even choose, the consequences of their (in)action, with the law getting as close as possible to likely intent anyway and without costly, fact-intensive litigation to unearth it. Professors Fellows and Spitko would disagree in favor of a more direct engagement with the decedent’s intent. To them, while perhaps administratively costlier than applying objective rules of heirship, an intestate decedent’s probable intent can be discerned from an individualized review of the decedent’s own nonprobate transfers. Fellows and Spitko would surely impose new costs on the process of estate administration, but their elegant solution would be superior to intestacy in most cases. Lifetime donors – even those of will substitutes where the burn of transfer is delayed – are presumably more immediately, acutely aware that some sort of ownership transfer has taken place. Those choices offer valuable evidence of decedent intent, perhaps even more so than wills drafted long ago, and probably much more so than the text of a fusty statute.

These are a few of the direct arguments and outcomes to admire in the authors’ work. But part of what makes the piece so powerful has as much to do with other things. First, their piece is thorough and careful, and for those less familiar with empirical research, offers a blueprint for how one might effectively blend qualitative and quantitative research with existing legislation and legal theory. Second, it holds a dialogic quality that deepens understanding. The authors invite the reader into a conversation with and between them and the material, their thesis, the estate planners they interviewed and the individuals they polled, the ways in which their initial theses were refined and re-presented. At least for me, they encouraged me to have a conversation with myself. I had first encountered their initial research a decade ago, and found the ideas then presented compelling. The ability to revisit that material anew and updated ten years later, and to see how different stages of the past research and results both altered initial project scope and contributed to present design, generated a satisfying feeling: that even were I not to have agreed with the outcomes reached, I had in a sense lived with, really knew, and understood that which informed them.

Although the authors’ scholarship is always valuable, the range of benefits found in this update was an unexpected gift.

Cite as: Katheleen Guzman, Most People, Most of the Time, JOTWELL (January 31, 2022) (reviewing Mary Louise Fellows & E. Gary Spitko, How Should Non-Probate Transfers Matter in Intestacy?, 53 U.C. Davis L. Rev. 2207 (2020)), https://trustest.jotwell.com/most-people-most-of-the-time/.

Wealth, Privilege, Power, And Opportunity

Allison Anna Tait, Inheriting Privilege, 106 Minn. L. Rev. __ (forthcoming 2022), available at SSRN.

Over one’s lifetime, advantage processes have a cumulative and potentially significant impact on inequality.  The notion of cumulative advantage, or behavior processes whereby wealth continues to fall into the hands of individuals based upon how much they have already accumulated, is a concept to which many labels are applied: preferential attachment; “the rich get richer”; the Matthew effect. Most law school courses on trusts and estates consider (to some extent) the privilege, power, and opportunity that flows from economic wealth. Conversely, inherited social and cultural capital create advantage processes that are arguably no less significant, driving behaviors that produce tacit economic benefits—the parent who pays for extra tutoring so that a child may outperform peers on an entrance exam; the professional able to develop an instant sense of rapport and connection with other successful professionals; the job candidate who comports herself with high cultural knowledge (au courant but appropriate attire, elegant table manners, knowledge of fine arts, broad functional vocabulary). Although the intergenerational impact of inherited cultural capital is fascinating and relevant as an advantage process, the implications have been largely overlooked by legal scholars contemplating inheritance frameworks. Inheriting Privilege by Allison Anna Tait considers the family trust as a mechanism for intergenerational transfer of privileged social standing and cultural hierarchies.

The article encourages us to think more broadly about patrimonies: family resources usually considered by legal scholars in the narrow context of financial assets. Social and cultural capital is manifest within the patrimonies of the wealthy, with season tickets to the polo club, country club memberships, fee-paid legacy status within initiation-based social clubs, or box seats to performing arts events. Cultural objects, heirloom possessions, and shared rituals may also be part of the patrimony. Notably, treasured collectibles may sometimes be a part of both the economic patrimony and the family’s cultural capital. Trust beneficiaries may have access to priceless antiquities without ever investing capital to purchase them (“only middle-class people buy furniture (because upper-class people inherit it)”). Access to high-value antiquities, artwork, and social memberships—or any of the conspicuous markers of elite white culture—is a mantle of privilege and one inherits unearned opportunities when cloaked with this mantle. Professor Tait’s argument that young people are paid more and promoted far earlier when they possess a wealth of social capital is thoroughly supported.

The family trust may facilitate control over a patrimony for centuries. The structural flexibility of a trust arguably allows it to operate as both sword and shield when it comes to protecting the capital within the patrimony. The power of a trustee to treat the trust principal as sacred, allowing distributions only from income generated by the principal, allows wealth to be preserved for as long as the state’s perpetuities will permit. Settlor-imposed restrictions that micromanage spending may be so explicit as to place the trustee in the position of substitute parent to the beneficiaries. And with a properly drafted trust, the assets within the trust may not be reached by generations of beneficiaries’ creditors. Professor Tait takes examination of family trusts a step further and considers the specific ways in which structural flexibility allows social and cultural capital to be protected and preserved:  restrictions may be placed upon the trustee to preserve family assets and preclude their sale or disposition (e.g., vacation homes, farm properties, closely-held businesses, art collections, family heirlooms); a statement of values may be incorporated in the preamble of the trust, as a way of setting forth some sense of shared identity among family members; and, wielding both carrots and sticks, incentive provisions may be incorporated into a trust to encourage socially productive behavior, specific educational outcomes, or mandate philanthropic involvement.

Professor Tait notes that seven of the twenty wealthiest families on the Forbes Richest 400 list have inherited intergenerational wealth that was “strategically transferred . . . from one generation to the next through a complicated system of trusts, charitable foundations, and corporate entities.” She observes that to the extent trusts play an important role in preserving and concentrating wealth for an elite segment of society, conversations about structural inequity must necessarily involve trust law. This well-researched journey through the trust as a “unique catalyst of inequality” shifts gears and then reimagines the family trust as a tool for equality. Professor Tait contemplates the use of “citizen trusts” to address the needs of historically marginalized or vulnerable persons or communities. By way of a model, the article considers the First Nation Settlement Trusts in Canada, which are currently used to manage, preserve, and protect settlement funds received by displaced aboriginal communities, and the Alaska Permanent Fund, which has grown from $900 million in 1980 to $60 billion in 2017 and is used to support the community-at-large in Alaska.

This type of scholarship serves as a departure point for important conversations that need to happen in the classroom about the benefits and disadvantages arising from the plasticity of the family trust, and the ability of the trust to preserve intergenerational wealth and privilege. Professor Tait has also made an extraordinarily important contribution in helping to frame a pivot: harnessing the advantages of the trust enjoyed by the wealthy to advance community-supported causes. An article is a noteworthy contribution when it leaves us with new thoughts and ideas of our own, and when we are inspired to incorporate those ideas into our classes.

Cite as: Victoria J. Haneman, Wealth, Privilege, Power, And Opportunity, JOTWELL (December 22, 2021) (reviewing Allison Anna Tait, Inheriting Privilege, 106 Minn. L. Rev. __ (forthcoming 2022), available at SSRN), https://trustest.jotwell.com/wealth-privilege-power-and-opportunity/.

Don’t Forget About the Fakes

Reid Kress Weisbord & David Horton, Inheritance Forgery, 69 Duke L. J. 855 (2020).

In the Estates textbook I use, most of the will execution cases involve testators whose clear intent is unrealized because they bungled strict execution requirements. The Uniform Probate Code and the Restatement (Third) of Property: Wills and Other Donative Transfers—mainstays in any Estates class—are drafted to minimize the possibility of formal requirements interfering with testator intent. Reis Kress Weisbord and David Horton’s Inheritance Forgery is a counter-narrative that demonstrates how forgery remains a real and substantial risk of which the law must take account.

Weisbord and Horton argue that “counterfeit donative instruments are a serious problem.” (P. 855.) They focus on three donative transfers: wills, deeds, and life insurance beneficiary designations. To explore the prevalence of forged wills, the authors conduct empirical research in Alameda County, California. In a dataset consisting of every matter on the probate court’s docket in a one-year period, ten percent of will contests involved a forgery claim. (P. 876.) To document the forgery risk with deeds, the authors examine reported opinions since 2000, grand jury reports, and journalistic accounts of cases that were never litigated. As Weisbord and Horton explain, “these cases and stories share a common thread: deed forgers tend to prey on property that is owned by a decedent’s estate.” (P. 883.) To demonstrate that courts “routinely preside[] over claims that a life insurance form was falsified or fabricated,” the authors study reported opinions since 2000. (P. 889.) This empirical works reveals the extent to which forgery threatens the integrity of donative transfers.

Will forgery remains such a problem because policy makers fail to appreciate that it is a problem. Instead, the popular perception is that “forged wills are rare” and “just the stuff of novels.” (P. 870.) The Restatement (Third) does not even include forgery on its list of grounds for refusing to probate a will. (P. 871.) The Uniform Probate Code and some states have abolished purging statues that disincentivize beneficiaries from serving as witnesses; the Uniform Probate Code allows testators to use a notary instead of two witnesses; and in the most recent developments the Uniform Law Commission and some states have endorsed electronic wills. Unless policy makers appreciate the prevalence of forgery, they underestimate the risks inherent in each of these statutory changes. Moreover, Weisbord and Horton argue, the lack of attention to will forgery creates “festering areas of doctrinal uncertainty”, including issues about the burden of proof and burden shifting; whether a judge may look beyond the four corners of an instrument to determine due execution; and the “shaky science” of forensic handwriting analysis. (P. 882.)

The risk of forgery also plagues life insurance beneficiary designations, largely because life insurance companies lack adequate incentives to police for forgery. Under the rules of interpleader, the insurer that sues to compel adverse claimants to resolve their conflict can recover costs and attorney’s fees. Moreover, an insurer who learns of a forgery after it has paid the death benefit can fall back on facility-of-payment statutes. These statutes shield insurers from liability if they have acted in good faith and paid proceeds to the beneficiaries named on the policy—even if the names of those beneficiaries were forged. (P. 890.) Moreover, impleader rules and facility-of-payment statues “create perverse incentives for insurers to avoid scrutinizing death-beneficiary designations.” (P. 890.) This is because the less insurers know about the authenticity of the signature, the easier it is for the insurer to reap the benefit of the facility-of-payment statute and recover costs and fees in the interpleader action. Because less knowledge is advantageous to the insurer, companies make only “hollow gestures toward discouraging forgery.” (P. 891.)

Forgery on deeds may seem like a real property problem, not an estates problem. But Weisbord and Horton explain that forgers have “discovered another soft target: vacant real estate owned by the recently deceased.” (P. 885.) When a parcel is unoccupied and moving through the probate process, a counterfeit deed or trespasser may not be immediately detected. (P. 885.) Often the forger’s job is simple because recording a fake deed is “shockingly easy.” (P. 884.) The “overwhelming majority of Deed Registers [do] not try to authenticate legal instruments,” and many states expressly prohibit them from passing upon the validity of deeds because Registers are merely “ministerial officers.” (P. 884.) While all fake deeds are void, “untangling these legal knots can be time-consuming and expensive.” (P. 887.)

Weisbord and Horton’s explanation of why forgery is a contemporary problem previews their solutions. For beneficiary designations, they propose rule changes that would force life insurance companies to shoulder the burden of deterring forgery. For deeds, they suggest authentication protocols that would make it difficult to record a forged document. For wills, they are careful to note that many of the Uniform Probate Code’s innovations—harmless error, the abolition of purging statues, and holographic wills that only have material portions in the decedent’s handwriting—do not appear to increase the possibility of forgery. (Pp. 895-96.) However, Weisbord and Horton are skeptical of the trend to allow a notary to substitute for witnesses because “crooked notaries” appear in an alarmingly number of the will forgery cases. (P. 878.) The authors also are concerned about the potential of forgery with electronic wills and argue that authentication characteristics must be hard to fabricate, such as biometric measures. (P. 898.) Weisbord and Horton also advocate for reform of burden shifting and other doctrinal rules so as to eliminate the “powerful procedural advantage” held by the proponent of a will. (P. 899.)

From the first sentence to the last, Inheritance Forgery functions as a wake-up call: forgery is a modern-day problem that thwarts the intent of decedents and weakens our system of donative transfers. Policy makers should take note.

Cite as: Sarah Waldeck, Don’t Forget About the Fakes, JOTWELL (November 25, 2021) (reviewing Reid Kress Weisbord & David Horton, Inheritance Forgery, 69 Duke L. J. 855 (2020)), https://trustest.jotwell.com/dont-forget-about-the-fakes/.

Electronic Wills Are Just Like Paper Wills, Except When They’re Not

Adam J. Hirsch, Models of Electronic-Will Legislation, San Diego L. Stud. Res. Paper No. 21-014 (June 20, 2021), available at SSRN.

A conventional paper will must be in writing, signed by the testator, and signed by two witnesses. Statutes that authorize electronic wills (“e-wills”), by contrast, largely replicate the conventional will execution formalities in a digital format by giving legal effect to electronic documents that “are never reduced to paper.” (P. 164.) As of June 30, 2021, nine American states have enacted validating statutes for e-wills, and seven more states are considering e-will legislation. (Pp. 164, 165.) Currently, only one state, Oregon, expressly invalidates e-wills. (P. 166.) While American states are only recently beginning to address the validity of e-wills, certain foreign countries have had over two decades of experience with the concept. (P. 165.)

In Models of Electronic-Will Legislation, Professor Adam Jay Hirsch surveys the current landscape of e-will legislation in the United States and argues that states’ limited experience on the ground with e-wills renders the Uniform Law Commission’s approval in 2019 of the Uniform Electronic Wills Act (“Uniform Act”) premature. To enrich our understanding of the various options for validating e-wills, Professor Hirsch examines four competing legislative models that warrant policy and empirical analysis: (1) general validating statutes, such as the Uniform Act, which create general protocols for testators to formalize an e-will; (2) limited validating statutes, which are more limited designs for treating certain electronic records as an e-will; (3) emergency statutes, which validate only e-wills that serve a specific purpose, such as creating an estate plan during an emergency; and (4) remedial statutes, which validate e-wills that are otherwise not valid but are demonstrably intended as testamentary vehicles. (P. 165.) In thoroughly analyzing each legislative model, Professor Hirsch supports (among other things): (1) rejecting general validating legislation for e-wills because legislatures need time to develop substantive rules for e-wills, (2) enacting legislation explicitly proscribing e-wills, and (3) giving time to state legislatures to evaluate different models of e-will legislation, arguing that, because, among other things, there is currently little domestic experience with e-wills, the Uniform Electronic Wills Act is premature. (Pp. 206, 231-35.) This jot summarizes only some of the substantive rules discussed by Professor Hirsch and can only hint at the impressive depth and breadth of his analysis.

The first model, to which Professor Hirsch devotes the most attention, is a general validating statute. Professor Hirsch analyzes four aspects of this model: the writing requirement, the signature requirement, the self-proving affidavit, and will revocation.

As to the writing requirement, e-wills necessarily differ from paper wills because electronic documents are, of course, paperless. Under the Uniform Act, an e-will must be “readable as text” and, therefore, cannot be an audio or video file. (P. 168.) Professor Hirsch persuasively argues that, once wills are in the digital realm, words can be interchangeable between sound and text; he also notes that Uniform Law Commissioners acknowledge in a comment that “a will dictated by a testator onto a computer file using voice-recognition technology qualifies as an e-will.” (P. 169) The Uniform Act allows the remote witnessing of an e-will, but states have diverged on how witnesses should attest an e-will: some require the physical presence of witnesses, others permit remote witnessing, while still others permit remote witnesses only under limited circumstances. (P. 174.) I found persuasive Professor Hirsch’s critique of remote witnessing because the alarming rise of elder financial abuse and recent scourge of predatory caretakers pose a heightened risk of undue influence, duress, or fraud. (P. 176.)

As to the signature requirement for both testators and witnesses, the Uniform Act and seven states accept names typed into the file of an e-will as a form of electronic execution. Two other states, by contrast, require electronic signatures that are unique to the signatories. (P. 178.) The acceptance of typed (non-unique) names as signatures and the non-requirement of a date to an e-will in the Uniform Act and in six states (with three states requiring a dated e-will) leads Professor Hirsch to propose a notarization requirement for e-wills. (Pp. 181-83.) Notarization can protect against fraud or tampering with the e-will by, among other things, verifying the identities of witnesses and providing a record of the date of signing. (P. 184.)

A paper will can be “self-proved” if attesting witnesses sign an affidavit swearing to their participation in the will-formalizing process. (P. 185.) The Uniform Act, however, authorizes a self-proving e-will “only if the parties execute the e-will and affidavit ‘simultaneously’”—the Uniform Probate Code, by contrast, provides that the parties can “self-prove a conventional will immediately or at any time after the will’s execution.” (P. 187.) Two states currently have draft e-will legislation that omits the Uniform Act’s requirement of simultaneity. (P. 187.) Whether a self-proving affidavit is signed simultaneously with the will or not, allowing the affidavit to appear in the same digital file as the e-will exposes the e-will to tampering because metadata timestamps an electronic file’s last revision, but not the date or time of the e-will’s execution. Professor Hirsch proposes an elegant solution to this problem: “lawmakers could require parties to store any self-proving affidavit created ex post in a file separate from the e-will” so that the parties “could maintain the digital purity of an e-will.” (P. 189.)

Professor Hirsch explains that allowing an e-will to be revoked by physical act (rather than by express revocation by executing a subsequent writing) raises a host of novel issues. To revoke a conventional will by physical act, the testator must perform a revocatory physical act upon the original will with the intention to revoke it. But, assuming that deletion is the digital equivalent of a revocatory act, what file should be deleted? If an e‑will is signed and electronic copies are made immediately (or, even, at a later time), are they all originals? Does revocation of an original e-will by deletion also revoke all copies? The Uniform Law Commissioners nonetheless allowed revocation of an e-will by physical act because “many people would assume that they could revoke their wills by deleting them.” (P. 192.)

Revocation by physical act of an e-will without copies does not seem problematic, but revocation by physical act of an e-will with multiple copies does. One state (Indiana) requires the testator to permanently delete each copy of the electronic will, not just one of them—the Uniform Act, however, indicates in a comment that a “physical act ‘performed on one’ among ‘multiple copies’ suffices [for revocation].” (P. 194.) To explore whether Indiana law or the Uniform Act is more likely to correspond to people’s assumptions, Professor Hirsch undertook the “first-ever survey of popular assumptions about the revocation of e-wills.” (P. 195.) He asked 1,004 Americans if, assuming electronic wills are valid in your state and you created an electronic will in a file on one drive and made a copy of the will in a file on another drive, what do think you would have to do to revoke your will?—respondents could answer: (1) “Delete either one of the electronic will files,” or (2) “Delete both of the electronic will files.” 78% of the respondents indicated that they believed they would have to delete both of the files to revoke their electronic will. (P. 195.) Professor Hirsch concludes, “These data suggest that the Indianians’ rule of revocation better fits natural assumptions, and hence is more likely to minimize legal error, than the Commissioners’ rule.” (P. 195.)

Professor Hirsch’s analysis of the diverse treatment of the foregoing substantive laws (including a discussion of partial revocation and electronic trusts that are beyond the scope of this jot) leads to a view, expressed throughout his article, that legislatures need more time to develop the substantive laws of e-wills. Accordingly, Professor Hirsch supports a rejection of general validating legislation for e-wills. (P. 206.) To prevent existing conventional will legislation from being extended to e-wills, Professor Hirsch believes that the “safer course” is to “enact legislation explicitly proscribing e-wills.” (P. 206.)

The second model for e-will legislation provides for limited validating statutes, which “offer testators digital mechanisms for doing a more limited range of things.” (P. 206.) One example is a draft act in California allowing electronic pour-over wills but not other e-wills. (P. 209.) Professor Hirsch argues that, if a pour-over will is exclusively a pour-over will, then such an “abbreviated” will does not raise independent issues of fraud and allows the trust to become the “focus of attention.” (Pp. 209-10.) In those cases, Professor Hirsch proposes that the fate of the pour-over will can be tied to the fate of the trust. (P. 210.)

A third model for e-will legislation allows e-wills in emergencies. Emergency e-will legislation can co-exist with general validating statutes, but testators in emergencies should be allowed to dispense with formalities. (P. 214.) Although no American or foreign jurisdiction has enacted legislation authorizing e-will only in emergencies, two American states have draft legislation. Ohio has a draft e-will act allowing oral wills “made in the last sickness” with two disinterested witnesses in the testator’s physical or electronic presence, thus allowing for telephone wills. California has a draft e-will act allowing a textual, audio, or video e-will if the testator executed the e-will while “in contemplation, fear, or peril of imminent death, including self-created peril” and only if the testator does not survive “such imminent peril within 48 hours of creating” the e-will. (P. 215.)

The fourth model for e-will legislation provides for open-ended remedial rules, which allow an e-will to become valid “if a court determines that a testator intended an electronic record to function as a will, even though it is improperly formalized.” (P. 219.) A remedial rule could exist with or without any general validating statute for e-wills. (Id.) In 1990, the Uniform Probate Code added a dispensing power (allowing courts to dispense with formalities on a case-by-case basis when proponents seek to probate noncompliant wills), but, as of 2021, only eleven American states have enacted some version of the so-called “harmless-error” rule. (P. 220.) The Uniform Act combines a general validating statute with a harmless-error rule for defective e-wills. (P. 222.)

Of the nine states that enacted e-will legislation, two harmless-error jurisdictions have extended the dispensing power to e-wills. (P. 225.) Professor Hirsch notes that lawmakers considering remedial legislation for e-wills have several choices. First, although the Uniform Act allows for the harmless-error rule to be applied to an improperly-formalized e-will that is “readable as text,” Professor Hirsch supports expanding the rule to validate audio and video wills, noting that, if the harmless-error rule applies to emergencies, then the dispensing power should be broad. A second matter is the burden of proof—currently, the Uniform Act requires that proponents produce “clear-and-convincing evidence” to invoke the remedy of harmless error. Professor Hirsch theorizes that this heightened standard (over the usual civil preponderance of the evidence standard) was lawmakers’ attempt to make “outcomes more predictable and resistant to litigation, except where the equities are too glaring to ignore.” (P. 229.) He argues that the clear-and-convincing standard should be rejected because it is vaguer than a preponderance of the evidence standard and “generates less predictable outcomes, and hence invites more litigation, without any compensating benefits in terms of substantive justice.” (Id.) Professor Hirsch proposes shifting decisions over remediation from probate judges to “a higher court, in which lawmakers have greater confidence.” (Id.)

Professor Hirsch’s comprehensive discussion of four possible legislative models of e-will legislation and his impressive analysis of current and draft legislation in the United States and certain other countries have convinced me that e-wills require their own substantive rules because e-wills can sometimes differ greatly from paper wills. Currently, overall, American legislatures, courts, people, and society appear to have insufficient experience with e-wills. Professor Hirsch, this article, and his previous work on e-wills will help guide us in developing sophisticated and equitable substantive laws for e-wills.

Cite as: Michael Yu, Electronic Wills Are Just Like Paper Wills, Except When They’re Not, JOTWELL (October 27, 2021) (reviewing Adam J. Hirsch, Models of Electronic-Will Legislation, San Diego L. Stud. Res. Paper No. 21-014 (June 20, 2021), available at SSRN), https://trustest.jotwell.com/electronic-wills-are-just-like-paper-wills-except-when-theyre-not/.

The Long, Tortured History of California’s Nonexistent Electronic Will Statute

Francesca Torres, Electronic Wills: COVID-19 Relief or Inevitable Trouble For California?, 52 U. Pac. L. Rev. 435 (2021).

One of my favorite forms of academic writing is the Note or Comment. Students have an uncanny ability to make the most of issues that professors might overlook.

A case in point is Francesca Torres’s Note, Electronic Wills: COVID-19 Relief or Inevitable Trouble For California? Torres, a rising 3L at McGeorge, skillfully tells the story of California’s failed electronic will statute, Assembly Bill 1667.

As Torres observes, one would have expected AB 1667 to pass. For one, nine U.S. jurisdictions expressly validate wills that are memorialized in pixels rather than on paper, and cases have been trickling into courts in which someone has tried to express their last wishes on a smartphone app or tablet computer. In addition, lawmakers in the Golden State have embraced other cutting-edge probate measures, like the harmless error rule. Finally, California requires attested wills to be signed by two witnesses who were present at the same time. Thus, during the COVID-19 pandemic, estate planners “struggled to find a way for clients to execute a will without physically entering an office.”

Nevertheless, AB 1667 was introduced in 2019 and proceeded to die in slow motion. It first consisted of an ambitious array of rules that governed creating, storing, and proving an e-will. It then endued a ceaseless barrage of amendments, critiques, and proposals from various interest groups. As the California Senate Judiciary Committee put it:

This bill has undergone multiple makeovers, proposing various different schemes for recognizing electronic wills in California. Each new iteration led to multiple rounds of intensive and impassioned discussions. Although it appeared at various points that a product approximating consensus might emerge, disagreements among stakeholders, particularly with regard to the degree of formalities that should be prescribed for electronic wills, persisted and promise to remain intractable.

By the fall of 2020, AB 1667 had been gutted: rather than making digital wills enforceable, it merely deputized the California Law Revision Commission to study the issue. And somehow, even this ghost of a bill failed to pass.

So what went wrong? Torres suggests that lawmakers determined that the costs of e-wills trump the benefits. She acknowledges that digital wills might “provid[e] any easy, comfortable, and convenient method of will drafting.” However, she correctly notes that some e-will statutes—including one that California considered in 2018—were all but drafted by companies like LegalZoom and Willing.com. These do-it-yourself legal service providers have serious skin in the game: not only can they sell digital will kits over the Internet, but they can charge fees to serve as “qualified custodians” that store the completed documents. Thus, one cannot help but wonder whether these “industry statutes” truly serve the public interest.

In addition, Torres raises legitimate questions about whether e-wills facilitate fraud. As she points out, it is exceedingly easy to fake the electronic signature of a testator or witnesses. Making matters worse, a wrongdoer might be able to access an e-will that is stored on a testator’s computer and make changes that are hard to detect.

It is unclear whether California lawmakers will try again in 2021. But if they do, I hope they read Torres’s Note and take her arguments seriously.

Cite as: David Horton, The Long, Tortured History of California’s Nonexistent Electronic Will Statute, JOTWELL (September 28, 2021) (reviewing Francesca Torres, Electronic Wills: COVID-19 Relief or Inevitable Trouble For California?, 52 U. Pac. L. Rev. 435 (2021)), https://trustest.jotwell.com/the-long-tortured-history-of-californias-nonexistent-electronic-will-statute/.

A New Central Principle for Inheritance Law?

Felix B. Chang, How Should Inheritance Law Remediate Inequality?, 97 Wash. L. Rev. __ (forthcoming, 2022), available at SSRN.

In United States inheritance law, we typically listen to what the person with the money wants. In his provocative essay, How Should Inheritance Law Remediate Inequality?, Professor Felix Chang challenges this bedrock principle of freedom of disposition and proposes a new vision of inheritance law that centers intergenerational economic mobility instead. By linking trusts and estates to other fields, such as business and tax law, this piece raises a host of interesting questions about whether inheritance law can truly address societal wealth inequality.

Chang starts by tracing the twin histories of inheritance law scholarship and estate tax policy. He starts in the 1970s, when the estate tax was relatively expansive, and the seminal scholarship of Professor John Langbein was just taking off. Much of Langbein’s work concerns how to improve the inheritance law system by making it more faithful to testamentary intent. However, a lot has changed since the 1970s. The group Chang describes as The Repealers—a coalition of the ultra-rich, anti-tax activists, and Republican politicians—has largely been successful in significantly weakening the estate tax, as now a significant amount of intergenerational wealth escapes untaxed. At the same time, a new vein of critical legal scholarship has arisen in the legal academy. It is more concerned with questions of distribution1 and notably more skeptical about promoting testamentary intent, at least when it serves to promote dynastic wealth and tax evasion.

The essay’s basic descriptive thesis is that while inheritance law scholarship has changed its focus to inequality, the law of trusts and estates itself has not yet caught up. Chang’s normative thesis is that it should. In other words, the central principle of inheritance law should shift from the freedom of disposition to intergenerational economic mobility, which Chang defines as “the ability of children to move beyond the economic station of their parents.” (P. 3.) This would transform inheritance law into a “safety net” that might curb the excesses of the related fields of business and tax law, which allow the creation of great wealth but also great wealth inequalities. Chang sees these inequalities as normatively undesirable because they both constrain individuals’ life opportunities and lead to political instability.

The role of a progressive inheritance law, on Chang’s view, is to prevent these wealth inequalities from wholly being transmitted to future generations. He is careful to note that he is primarily concerned with intergenerational disparities in wealth rather than income, the latter of which he finds to be more easily defensible. As a practical matter, he believes that legal rules should both restrain the hyper-rich and boost low-income households as a way to promote “mean regression.” This theoretical framing, in turn, brings together otherwise disparate calls for reform. For example, at the higher end of the wealth spectrum, this means targeting dynasty trusts, while at the lower end, it entails facilitating estate planning and promoting the transfer of assets between generations of low-income households. The tricky part, which Chang acknowledges, is that certain legal regulations may have unintended but deleterious consequences, particularly as the wealthy engage in strategic behavior in response to more restrictive legal rules.

Working out all of the details of an inheritance law focused on intergenerational economic mobility, however, is not the goal of the essay. Instead, it is to bring together the variety of legal fields that focus on wealth generation and transmission and to suggest a theoretical alternative to the policy and scholarly status quo. On that, Professor Chang has unquestionably succeeded.

  1. See, for example, my own piece on these issues: Alexander A. Boni-Saenz, Distributive Justice and Donative Intent, 65 UCLA L. Rev. 324 (2018).
Cite as: Alexander Boni-Saenz, A New Central Principle for Inheritance Law?, JOTWELL (August 18, 2021) (reviewing Felix B. Chang, How Should Inheritance Law Remediate Inequality?, 97 Wash. L. Rev. __ (forthcoming, 2022), available at SSRN), https://trustest.jotwell.com/a-new-central-principle-for-inheritance-law/.

The Case for a Federal RAP

Eric A. Kades, A New Feudalism: Selfish Genes, Great Wealth and the Rise of the Dynastic Family Trust (“DFT”) (2019), available at SSRN.

In a majority of U.S. jurisdictions, at least for purposes of trust law, the Rule Against Perpetuities (“RAP”) is dead. Yes, it’s true. In recent years most states either substantially weakened or completely eliminated their Rules Against Perpetuities. This fact has major implications for the wealthy, and more so for the ultra-wealthy. Freed from the restrictions of the RAP, those with the means and inclination can now create trusts that entrench great wealth within their families forever.

Eric Kades is concerned about this. In his second article addressing the potential repercussions of RAP repeal, A New Feudalism: Selfish Genes, Great Wealth and the Rise of the Dynastic Family Trust (“DFT”), Kades proposes a reinstatement of the RAP, this time in federal form, something he wants to call “The National Anti-Feudalism Act.” This prescription comes after he engages in a kind of predictive analysis of the imagined estate planning of the ultra-wealthy, improbably informed by his reading of evolutionary biology. According to Kades, evolutionary biology should play a “significant role” in “explaining patterns of inheritance behaviors.”

If you read Kades’s last article on the implications of perpetual trusts born of RAP repeal (Of Piketty and Perpetuities: Dynastic Wealth in the Twenty-First Century (and Beyond)),1 his conclusions here might come as a surprise. In that article, although Kades expressed a concern about the “significant evidence of a positive correlation between inequality and undemocratic governance,” he pointedly refrained from arguing for a reinstatement of the RAP. Instead, based on his identification of two arcane economic problems that might be caused by long-term trusts, Kades offered prescriptions in the form of bespoke taxes designed to offset those problems. (Readers looking for a more thorough encapsulation can access my review of Kades’s 2019 article here.) But the current article is not technically inconsistent with the prior one—at least not in all respects.

Kades remains very concerned about the political implications of permanent concentrations of great wealth in a “small circle” of families. He makes reference to the outsized political and economic power wielded by the ultra-wealthy, wealth’s potential to undermine democracy, and its tendency to skew “life chances in favor of the fortunate few.” He further points out that today’s legal tools make it far easier to create a “feudal caste system” (he refers to it as a “New Feudalism”) than did the comparatively crude English common law traditions of primogeniture and the fee tail.

But while in the prior piece Kades set aside the political objections and suggested that we could tolerate permanent family trusts so long as their potential negative economic effects were curbed by targeted taxation schemes, here he wants them stamped out entirely. And here he dispenses with sophisticated and technical economic arguments and focuses instead on the simple facts of the imagined features of estate plans of ultra-wealthy families enabled by perpetuities repeal. After speculating on the wealth and status-entrenching features of these plans, he ticks off the potential social harms of inequality, and concludes with his federal prescription: prohibit them with a federal RAP.

As mentioned above, Kades’s professed insight into the specific features of the trusts that he is sure will result from RAP repeal is gained from general principles of evolutionary biology, applied to the presumed motivations of the ultra-wealthy. Diving into the relevant literature, he points out that evolution has selected humans to “strike a nuanced balance between the quality/status of their descendants and the number of such descendants.” Much recent research in evolutionary biology has apparently focused on “the central role that status-seeking has played in human evolution.” In modern society, high placement in the status hierarchy has a positive effect on reproductive opportunities—among humans as well as apes. This explains why those at the top economically often have fewer, not more, children. When resources are limited, it is easier to confer status on a few, and thereby give those few greater reproductive opportunities.

Importantly, status is “a relative or positional good.” One cannot achieve status without competitors; it is only obtained in relation to others. This means that one must invest in the status of offspring with a view toward surpassing the status of others—one’s offspring’s place in the hierarchy is all that counts. A kind of arms race is created, with parents in competition to confer status on their children so that they may at least keep up with, if not surpass, those of other parents. Evidence shows that this is a good evolutionary bet. Humans at higher points on the status hierarchy survive myriad disasters and crises at higher rates. And biological selective pressures are ongoing. “Either as a proxy for long-term fitness or as a maladaptive holdover from simpler times, the driving force behind fertility and inheritance decisions appears to be seeking high status for children rather than simply having a maximal number of them,” Kades writes.

How is this done in contemporary society? The raw material is wealth, of course, and while humans have massive amounts of it, its distribution among them is massively unequal. The tools that mobilize that wealth are the extraordinary cognitive abilities of humans in relation to other animals, along with complex legal and other devices enabled by “pervasive powerful legal institutions.” Armed with the requisite resources and tools, humans seeking status for their progeny will set about creating that status. But there being “essentially nothing in the inheritance literature on status maximization,” Kades is free to speculate on how this might be accomplished. And he is not concerned with wealth transfer techniques of the masses remember, but rather those of the super wealthy in a post-RAP environment.

What does Kades’s “rational dynast” do? Here is where Kades begins getting conjectural, using what he has learned of the general principles of evolutionary biology to speculate on quite concrete features of his typical dynast’s estate plan. He contends that the focus will be on family rather than individual status, with a goal to “maximize [the dynast’s] bloodline’s standing in society.” His dynast eschews short-term thinking and will implement a plan that will maintain or increase long-term family status. In an admitted departure from his earlier article mentioned above, Kades now maintains that his dynast will deemphasize generational focus in favor of individual descendants who are most likely to achieve very high status. Kades also takes some of his thinking here from his review of the English history of primogeniture and fee tail. And not all of his thinking is speculative. He conducted interviews of lawyers who exclusively represent ultra-high net worth clients in their estate planning.

The more detail Kades provides as to the various contours of the trusts he envisions (“Dynastic Family Trusts,” the “DFTS” of his title), the more he strays into a less tethered conjecture. And some of the features he envisions are based on assumptions or summaries of trust law that lack nuance. But that’s not to take away from his major points, which land quite well. “We are in the early days of a RAP-free America. Dynastic trust planning is in its infancy. We simply do not know the extent to which extremely wealthy aspiring dynasts will leave their large estates in DFTs with terms like those explored here, and we don’t know how effective such trusts would be in projecting family status and power for generation after generation,” he writes.

That claim is hard to argue with, as are his points about the potential of these trusts to further distort the political system and subvert democracy. The ever-expanding American conception of absolute freedom of disposition at bottom is, as Kades aptly puts it, “a deontological statement of faith rather than a case rooted in the social values of efficiency and fairness.” A federal RAP may not be the only or even “the surest means for preventing the rise of a New Feudalism,” as Kades maintains, but it would certainly be a step in the right direction.

  1. 60 B.C. L. Rev. 145 (2019)
Cite as: Kent D. Schenkel, The Case for a Federal RAP, JOTWELL (July 12, 2021) (reviewing Eric A. Kades, A New Feudalism: Selfish Genes, Great Wealth and the Rise of the Dynastic Family Trust (“DFT”) (2019), available at SSRN), https://trustest.jotwell.com/the-case-for-a-federal-rap/.