Article by Robert B. Niles-Weed & Robert H. Sitkoff
There is broad consensus that the law of conflict of trust laws is outdated. Both the American Law Institute and the Uniform Law Commission have initiated reform projects to address this obsolescence. But there is no consensus around what went wrong or how to fix it. This Article, prepared for a Symposium on Conflict of Laws in Trusts and Estates, responds to that gap by providing a historically, theoretically, and institutionally grounded account of the rise and fall of the old regime with an eye toward informing ongoing law reform efforts. We first show that the prevailing regime--that of the 1971 Restatement (Second) of Conflict of Laws--was purpose-built to encode then-common norms of trust law and practice. We then explain how and why modern trust law and practice has departed from those norms, upending the Restatement's foundational assumptions. In the Restatement's era, conflicts of trust laws rarely arose and were easily resolved through reliance on the locational anchors of land, probate, and court supervision. Today, by contrast, provoking a conflict of trust laws by drafting a trust to capture the benefits of interstate variation in law is a routine estate planning strategy, and the locational anchors of land, probate, and court supervision have become unmoored. Indeed, our account recasts nearly every significant development affecting trust law and practice over the past fifty years as a contributor to the revolution in conflict of trust laws. Informed by this understanding of the old regime's obsolescence, we offer tentative suggestions for the law reform efforts currently underway.
About the Authors
Robert B. Niles-Weed. Associate, Weil, Gotshal & Manges LLP.
Robert H. Sitkoff. Austin Wakeman Scott Professor of Law and John L. Gray Professor of Law, Harvard University, rsitkoff@law.harvard.edu.
The authors thank Adam Hirsch, John Langbein, Emily Taylor-Poppe, Jeffrey Schoenblum, Joe Singer, Carla Spivack, and the participants in the 2022 Symposium on Conflict of Laws in Trusts and Estates held by Tulane Law School for helpful comments and suggestions. Sitkoff serves as the Chair of the drafting committee that is preparing a Uniform Act on Conflict of Laws in Trusts and Estates. The views expressed in this Article are those of the authors and may not reflect the views of that drafting committee, the Uniform Law Commission, Weil, Gotshal & Manges LLP, or Harvard University. In accordance with Harvard Law School policy on conflicts of interest, Sitkoff discloses certain outside activities, one or more of which may relate to the subject matter of this Article, at https://perma.cc/X5NM-KXVM.
Citation
97 Tul. L. Rev. 1013