Class Gifts in the the New Restatement of Property

Frederic S. Schwartz (Professor of Law, Oklahoma City University School of Law) has recently published The New Restatement of Property and Class Gifts: Losing Sight of the Testator’s Intention, 22 Quinnipiac Prob. L.J. 221(2009).

The following are excerpts from the introduction to the article:

Division V of the new Restatement (Third) of Property: Wills and Other Donative Transfers will soon be published in final form. In addressing a very common issue, this part of the Restatement violates the most fundamental principle in the law of wills: that the testator’s intention is paramount.

The issue is this: When a devise is made to a plurality of beneficiaries, some of whom predecease the testator, who is entitled to the subject matter of the devise? Does it pass entirely to the beneficiaries who survive the testator? Or do the shares that the predeceased beneficiaries would have taken had they survived pass to the residuary beneficiaries? The correct approach to this allocational issue (as I will call it) seems obvious enough: The court should determine which outcome the testator likely intended.

Yet, most of the courts (and now the Restatement) have endorsed a different approach, in which a gratuitous conceptualism interferes with the inquiry into the testator’s intention. * * *

In Part I of this article, the correct (and non-conceptualist) resolution of the allocational issue will be described. Part II will show briefly how the courts have substantially endorsed the conceptualist method. Part III will describe and criticize the Restatement’s treatment of the allocational issue and the afterborn issue.