Article on the Third Volume of the New Property Restatement

Lawrence W. Waggoner(Lewis M. Simes Professor Emeritus of Law at the University of Michigan)recently published an article entitled, What’s in the Third and Final Volumeof the New Restatement of Property That Estate Planners Should Know About, 38 ACTEC L.J. 1 (Spring2012).  This article is a part of the March 2012 Joseph Trachtman MemorialLecture presented at the annual meeting of The American College of Trust andEstate Council in Miami Beach and has been revised for publication.  Provided below is the introduction to hisarticle:

Professor John Langbein and I have just concluded atwenty-year project for the American Law Institute to restate the law ofdonative transfers.  The official titleof our three-volume Restatement is the Restatement(Third) of Property: Wills and Other Donative Transfers.  We refer to it herein simply as the PropertyRestatement.  The third and final volumeof the work was published in the last days of 2011.  Professor Langbein spoke about certain of theinitiatives in the two earlier volumes, which set forth the principlesgoverning the law of wills, intestacy, interpretation of instruments, and thenonprobate system.  The concluding volumecovers class gifts, powers of appointment, future interests, and perpetuities.  In our division of labor today, I will bespeaking about that material.  Because Iwill not be able to cover all of the topics in the third volume, I have addedan Appendix to the print version that reproduces the Table of Contents for thatvolume. 

Although the Property Restatement does not addressthe tax-planning side of the work of estate planners, it does address the state-law side of the practice: the everyday workof drafting and construing dispositive provisions in wills, trusts, and othertypes of donative documents, as well as preparing to argue cases at both trialand appellate levels.  When it comes tolitigation, the courts pay attention to the Restatement and usually follow it.

The Property Restatement, not the Trusts Restatement,deals with the interpretative matters applicable to dispositive provisions intrusts as well as in wills and will substitutes.  Consequently, in construing the meaning of adispositive provision in a trust, the relevant Restatement is the Restatementof Property, not the Restatement of Trusts.