Article: These Are a Few of My Least Favorite Things

Richard C. Ausness recently published an article entitled, These Are a Few of My Least Favorite Things, Quinnipac Probate Law Journal, (2021). Provided below is the Introduction to the Article:

The Uniform Probate Code (“UPC”) can trace its origins back to a Model Probate Code promulgated by the American Bar Association (“ABA”)’s section on Real Property, Probate, and Trust Law in 1946. In 1962, the Section on Real Properly, Probate, and Trust Law, along with National Conference of Commissioners on Uniform State Laws began work on what was to become the original UPC. The National Conference and the ABA’s House of Delegates approved the UPC in 1969. The 1969 UPC was an attempt to modernize some of the traditional rules and provide a degree of uniformity for the American law of wills and intestacy. In general, the original UPC did a good job of achieving these goals. The 1990 revised UPC was somewhat more ambitious. It introduced entirely new concepts such as “harmless error” and substantially changed longstanding rules on descent and distribution and elective share rights for surviving spouses. Unfortunately, some of the 1990 UPC’s sections are unnecessarily confusing and complex, while others seem excessively vague and open-ended. This Article will identify some of the worst offenders and suggest ways to improve them. Part II discusses the doctrine of representation and advocates replacing the Code’s per capita at each generation rule with the more traditional per capita with representation approach. Part III examines the harmless error rule, or dispensing power, which allows a court to probate a will even though it has not been properly executed. Part IV is concerned with the treatment of revival in the 1990 UPC. This section further explores why only a few jurisdictions have adopted said revival as most courts are turned off by the provision’s complex arrangement of presumptions going every which way. Part IV suggests a return to the 1969 UPC’s treatment of revival. Part V provides a critique of the revised UPC’s anti-lapse provision. Not only is this provision much too long and complicated, but it makes it unnecessarily difficult for a testator to allow a gift to lapse. Finally, Part VI analyzes the concept of ademption by extinction and recommends that the 1990 UPC’s provision on ademption be jettisoned and replaced by the 1969 UPC’s more workable version.