Virtual Representation Analyzed

Martin D. Begleiter (Ellis and Nelle Levitt Distinguished Professor of Law, Drake University Law School) recently authored an article entitled Serve the Cheerleader–Serve the World: An Analysis of Representation in Estate and Trust Proceedings and Under the Uniform Trust Code and Other Modern Trust Codes, 43 Real Prop. Tr. & Est. L.J. 311 (2008).

Here is a synopsis:

This Article is an in-depth examination of representation in estate and trust proceedings of one person (or class of persons) by a person who is already a party to the action. A person who is represented by another party need not be made a party to the proceeding for the judgment to be binding on such person, thus enabling the action to proceed without minors, unborns, and persons under disability. The doctrine arose in England and was used in the United States in the early 1800s in cases involving multiple parties. In estate and trust proceedings, a restricted form of the doctrine was recognized both at common law and in the first Restatement of Property. The doctrine was greatly expanded by New York legislation enacted in 1967, the elements of which have been adopted by many other jurisdictions, either by statute or case law. The use of representation is desired by attorneys because it avoids the expense of appointing a guardian ad litem for unborns, minors, and persons under a disability. The Uniform Trust Code and other modern trust codes have greatly expanded the uses of representation, creating substantial risks that judgments will not be binding on parties alleged to be represented. This Article explores those risks and suggests changes in the representation doctrine.