Article by James P. Spica
When a trust whose validity is governed by the law of one state grants a power of appointment to a donee domiciled in another state, determining the substantial validity of an exercise of the power will sometimes require a choice of law. The different choice-of-law rules formulated to meet that case by the American Law Institute, on the one hand, and the Uniform Law Commission, on the other, are section 274(a) of the Restatement (Second) of Conflict of Laws and section 103(2) of the Uniform Powers of Appointment Act (UPAA), respectively. The primary contention of this Article is that Restatement section 274(a) and UPAA section 103(2) are both irrational in the sense that, in each case, the rule yields results that are inconsistent with the preferences for choice of law that are supposed by the rule's (institutional) author to inform the rule. But en route to that destructive conclusion, constructive evidence is collected indicating that in light of the common preference for jurisdiction-selecting choice of law (which goes unchallenged here), it would be better to adjust the approach of Restatement section 274(a) than to abandon it (as UPAA section 103(2) does). And occasion is taken to sketch a serviceable adjustment.
About the Author
James P. Spica. Of Counsel, Chalgian & Tripp Law Offices, Southfield, Michigan. A.B., 1979, University of Michigan; J.D., 1984, University of Detroit; LL.M. (in Taxation), 1985, New York University. The author is an ACTEC Fellow, a Uniform Law Commissioner, a member of the ULC's Conflict of Laws in Trusts and Estates Drafting Committee, a sometime ABA Advisor to the ULC, and the principal author of several Michigan statutes, including the Personal Property Trust Perpetuities Act (2008 Mich. Pub. Act 148). He clerked for Hon. Richard C. Wilbur on the United States Tax Court (1985) and taught jurisprudence, taxation, and trusts and estates as an Assistant/Associate Professor of Law at the University of Detroit Mercy (1989-- 2000, tenured 1996).
Citation
97 Tul. L. Rev. 1047