Monday, January 29, 2007
Frances H. Foster (Edward T. Foote II Professor of Law, Washington University School of Law) has recently published her article entitled Privacy and the Elusive Quest for Uniformity in the Law of Trusts, 38 Ariz. St. L.J. 713 (2006).
Here is her introduction:
On July 9, 2004, Marlon Brando's will was filed for probate in Los Angeles Superior Court. A media feeding frenzy ensued. Reporters from across the globe scoured Brando's probate file for intimate details about the reclusive actor's personal life. Within hours, "enquiring minds" learned that Brando left a $21.6 million estate and a truly complex and fractured family. What even the most intrepid reporter could not discover, however, is how Brando's property will be divided. Except for "certain monthly payments" to two female friends, Brando's will devises his entire estate to his "[l]iving [t]rust," a document that is not part of the public probate file. Thus, Brando's trust gave him after death what he most craved during life-- privacy.
The Brando case illustrates a curious distinction between two "functional equivalents," the will and the revocable inter vivos or "living" trust ("revocable trust"). If the decedent devises her estate by will, the will becomes public record after her death, available to beneficiaries, heirs, thieves, reporters, and the "just plain curious" alike. If the decedent makes the identical disposition of her estate by a revocable trust, however, the document remains private. Indeed, in most states, even current beneficiaries of a revocable trust cannot view in full the trust document that defines their rights and interests.
At first glance, trust privacy has considerable appeal. It responds to an almost visceral human need to keep one's private life private and to protect one's survivors from the glare of publicity. Yet, closer analysis reveals a darker side of trust privacy. Elsewhere, I have exposed the human costs of trust privacy and concluded that the human costs of trust privacy exceed its benefits. In this Article, I show that trust privacy undermines reform.
This Article argues that trust privacy has impeded two of the most significant modern reform efforts in the trusts and estates field. Part II describes the effort to unify the law of wills and will substitutes and shows how trust privacy has undermined that effort. Part III describes the effort to make trust law uniform across states through the promulgation and enactment of a Uniform Trust Code and shows how trust privacy has frustrated that effort. Part IV concludes that these reform efforts will not succeed until reformers have confronted and resolved the trust privacy issue.