Article on Trusts and Estates: Implementing Freedom of Disposition
Robert H. Sitkoff (Harvard) recently published an article entitled, Trusts and Estates: Implementing Freedom of Disposition , 58 St. Louis U. L.J. 643 (2014). Provided below is an excerpt from the article:
The Trusts and Estates course is about the law of gratuitous transfer at death, that is, the law of succession.1 Lately such courses have come to cover both probate succession by will and intestacy, and nonprobate succession by inter vivos trust, pay-on-death contract, and other such will substitutes. The organizing principle of the American law of succession, both probate and nonprobate, is freedom of disposition. My suggestion in this Essay, which I have implemented in my Trusts and Estates class and in the casebook for which I am the surviving coauthor,2 is that the Trusts and Estates course can likewise be organized around this principle. The Trusts and Estates course is perhaps best conceptualized as a survey of the law and policy of implementing freedom of disposition.3
I. INTRODUCTION: FREEDOM OF DISPOSITION
The American law of succession embraces freedom of disposition, authorizing dead hand control, to an extent that is unique among modern legal systems.4 Within the American legal tradition, a property owner may exclude his or her blood relations and subject his or her dispositions to ongoing conditions, as in the classic teaching case of Shapira v. Union National Bank.5 The right of a property owner to dispose of his or her property on terms that he or she chooses has come to be recognized as a separate stick in the bundle of rights called property.6
There are, of course, some limits on freedom of disposition. The law protects a decedent’s creditors and surviving spouse, and it imposes a handful of other policy limitations, such as the Rule Against Perpetuities. Gratuitous transfer of property, whether during life or at death, is also subject to wealth transfer taxes.7 For the most part, however, the American law of succession facilitates, rather than regulates, the carrying out of the decedent’s intent. Most of the law of succession is concerned with enabling posthumous enforcement of the actual intent of the decedent or, failing this, giving effect to the decedent’s probable intent.8
Notice the emphasis on the donor rather than the donee. The interest protected by the law of succession is the donor’s right to freedom of disposition. The interest of a prospective donee, being derivative of the donor’s freedom of disposition, does not harden into a cognizable legal right until the donor’s death. Until then, a prospective beneficiary has a mere expectancy that is subject to defeasance at the donor’s whim. Consequently, the justification for freedom of disposition must be found in the balance of the “proper rewards and socially valuable incentives to the donor”9 against the risk of perpetuating inequality and concentrating economic and political power.
Along with the nature and function of freedom of disposition, it is convenient at the outset of the Trusts and Estates course to consider the professional responsibility of lawyers in succession matters. Doing so alerts students to the ethical perils in trusts and estates practice,10 and it invites consideration of the role of the trusts and estates lawyer as family counselor. Because the exercise of freedom of disposition at death is the decedent’s final expressive act, the Trusts and Estates course is fundamentally about people and their most intimate relationships. Each case is a drama in human relationships and a cautionary tale.