GULLIVER AND TILSON, ‘THE CLASSIFICATION OF
GRATUITOUS TRANSFERS’ - A BELATED REVIEW
ADAM J HIRSCH *
I
Some law review articles are pathbreaking. They remake a field, or even open up
a new field. 1 For the reader of such works in real time, it must be thrilling to be
present at the creation. Such events are rare and perhaps most likely to occur
following the retirement of a scholar whose outlook and outsized presence has
previously dominated his or her subject. As Max Planck quipped about his own realm
of study, ‘science advances one funeral at a time’. 2
Other law review articles are synthetic. They bring together ideas that are already
fermenting but that have not theretofore been viewed collectively, or whose relation to
each other has gone unnoticed. ‘The Classification of Gratuitous Transfers’ by Dean
Ashbel Gulliver and Catherine Tilson, 3 published in the Yale Law Journal in 1941,
comprised a work of this sort. 4 Although typically characterized as ‘seminal’ 5 or
‘canonical’, 6 the article in truth made its mark – at least the one for which it is
remembered and cited – by marshalling preexisting ideas. The authors themselves
made no pretense of doing otherwise. 7 The work’s original contribution lay in
applying those ideas in novel ways, a contribution for which, ironically, it remains
*
1
2
3
4
5
6
7
Professor of Law, University of San Diego. MA 1979, JD 1982, PhD 1987, Yale University.
See, eg, Ronald Coase, ‘The Problem of Social Cost’ (1960) 3 Journal of Law and Economics 1.
Quoted in Pierre Azoulay, et al., ‘Does Science Advance One Funeral at a Time?’ (Working
Paper No 21788, National Bureau of Economic Research, December 2015) 1.
Ashbel G Gulliver and Catherine J Tilson, ‘Classification of Gratuitous Transfers’ (1941) 51
Yale Law Journal 9. Ashbel ‘Pyle’ Gulliver spent his entire academic career on the Yale Law
School faculty, serving as dean between 1940 and 1946. He went on to produce an excellent
textbook, Ashbel G Gulliver, Cases and Materials on the Law of Future Interests (1959), taking
a policy-oriented approach to a subject long notorious for its formalism. Catherine Tilsonʼs
career was more obscure. She graduated from the Yale Law School in 1937 and served as an
instructor at the law school from 1938 to 1942. During this stint, she collaborated with Dean
Gulliver on ‘Classification’. In 1942, she joined the elite New Haven law firm of Wiggin &
Dana, where she pursued a general practice for the balance of her career. She continued to
publish occasional short pieces in the Connecticut Bar Journal, including one in 1946 in which
she took exception to the Equal Rights Amendment, see Catherine J Tilson, ‘The Equal Rights
Amendment to the Federal Constitution: Opposed’ (1946) 20 Connecticut Bar Journal 66, but
‘Classification’ was and remained her major contribution to the scholarly literature.
As others have noticed, scholars often develop the same ideas around the same time, even while
pursuing their research independently. See Robert K Merton, ‘Singletons and Multiples in
Scientific Discovery: A Chapter in the Sociology of Science’ (1961) 105 Proceedings of the
American Philosophical Society 470, 475–82. Such was the case here: Working at the Harvard
Law School, Professor Lon Fuller published his own, highly-regarded analysis of the functions
of formalization in the same year ‘Classification’ appeared, and the two works overlap to a
certain extent. See Lon Fuller, ‘Consideration and Form’ (1941) 41 Columbia Law Review 799.
For a further discussion, see Adam J Hirsch, ‘Formalizing Gratuitous and Contractual Transfers:
A Situational Theory’ (2014) 91 Washington University Law Review 797, 800–02.
Mark Glover, ‘Decoupling the Law of Will Execution’ (2014) 88 St John’s Law Review 597,
606.
David Horton, ‘Wills Law on the Ground’ (2015) 62 UCLA Law Review 1094, 1112.
See Gulliver and Tilson, above n 3, 2 n 1.
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largely unknown and is rarely cited. From this sequela we can possibly learn a lesson
or two.
II
‘Classification’ first addressed the justifications for requiring transferors to
formalize gifts, bequests, and other sorts of gratuitous transfers in some manner or
other. This preliminary segment of the work is forever reprinted or quoted in
casebooks, treatises, articles, and judicial opinions, typically in connection with the
requirements for will execution. 8
Gulliver and Tilson identified three justifications for transfer formalities. The
first, which they called the ritual function, is the need to distinguish legally
performative words from ordinary, communicative words. By requiring a testator to
execute a will according to an elaborate protocol, lawmakers clarify to him or her, and
to a court assessing the willʼs legality, that the words used were intended to take effect
as a legally performative statement – that these were not merely conversational words.
The second justification, which Gulliver and Tilson called the evidentiary function, is
to ensure that courts can accurately reconstruct the terms of a will and to avoid
fraudulent claims of testation, an aim accomplished by the writing and witnessing
requirement for will execution. Finally, Gulliver and Tilson discerned a protective
function in insulating testators from undue influence or other wrongful conduct by
would-be beneficiaries, a purpose that the witnesses could also perform. 9
‘Classification’ served to highlight these functions. And for the first time, by
assigning names to them, Gulliver and Tilson clarified their distinct attributes, an
exercise in taxonomy, holding value in itself. The late Stephen J Gould may have
exaggerated (for effect?) when he described taxonomy as ‘the height of human
creativity’. 10 At a minimum, it provides a useful, if not essential, foundation for policy
analysis.
The fact remains that this portion of the article was derivative. The evidentiary
function of will formalities had been understood from the beginning and acknowledged
in the earliest British legislation on point. For a brief time, the Statute of Uses of 1536
forbade trusts circumventing the law and (more importantly from the Crownʼs
perspective) taxation of intestacy on the ground that these trusts (or a ‘nude parole’
will) had resulted in ‘fraudulent feoffments’. 11 A century and a half later, in 1677,
legislation requiring all testators to execute their wills in writing (and in front of
witnesses if wills disposed of real property) continued to rehearse as its sole rationale
the ‘prevention of many fraudulent Practices which are commonly endeavored to be
upheld by Perjury. . .’. 12 Gulliver and Tilson confirmed that this function had stood the
8
9
10
11
12
See, eg, Gower v Winelander (Estate of Parsons), 163 Cal Rptr 70, 74–75 (Ct App, 1980); Jesse
Dukeminier and Robert H Sitkoff, Wills, Trusts, and Estates (9th ed, 2013) 150–52; William M
McGovern et al., Wills, Trusts and Estates (4th ed, 2010) § 4.1, 198–99; Jane B. Baron,
‘Irresolute Testators, Clear and Convincing Wills Lawʼ (2016) 73 Washington & Lee Law
Review 3, 9, 15–16.
Gulliver and Tilson, above n 3, 5–13.
Stephen J Gould, ‘Judging the Perils of Official Hostility to Scientific Error’, New York Times
(New York) 30 July 1989, E6.
Statute of Uses 27 Hen. VIII, c. 10 (preamble) (Eng).
Statute of Frauds 1677 29 Car. 2, c. 3 (Eng). In 1590, Henry Swinburne had observed the
practice of making a ‘solemn testament’ (borrowed from civil law), a sealed document executed
before seven witnesses, as providing ‘a more safe Way, as well against the Forging of False
Wills, as Suppressing of true Wills,’ adding, however, that ‘no man is necessarily tied thereunto
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Vol 35(1) Gulliver and Tilson’s ‘The Classification of Gratuitous Transfers’
test of time. 13 Without a formalization process, the adjudicative (and error) costs of
probate would skyrocket.
The other functions of will execution observed by Gulliver and Tilson were
likewise understood in theory before ‘Classification’ appeared. But if the evidentiary
function remains a constant, the others have waxed and waned. Prior to the nineteenth
century, the protective function played a more important role for wills. Back then,
wills in England and America were typically dictated on the deathbed, 14 a time when
testators were vulnerable to coercion by the persons around them. Contemporaries
recognized the risk of coercion and justified the use of witnesses, in part, to shield
vulnerable testators. 15 In modern times, when wills typically are created earlier in life,
this function has faded in significance. Healthy testators can protect themselves or
simply revoke unintended estate plans. Gulliver and Tilson pointed out this dynamic. 16
At the same time, the deathbed provided a ritual setting for the creation of a will
that at least clarified a testatorʼs intent to make it legally performative. So long as
most wills were executed close to death, no one mentioned the virtues of an artificial
ceremony to supplement the natural one attending the creation of wills, for it would
have been superfluous. The issue – triggering thought – did not arise until the need for
ritual grew more conspicuous by its absence. What is more, under early law ritual was
not indispensable. Prior to the eighteenth century, courts could hold a will effective
even if it did not display literal finality. 17 Even so, this emerging function of will
execution was hardly a revelation in 1941. Courts and scholars had been making the
same point for some time. 18
III
Gulliver and Tilsonʼs real contribution lay in the application of the policies they
highlighted. They were first to observe the pointlessness under modern conditions of a
rule requiring interested witnesses to a will to forfeit their bequests. This rule, widely
enforced by virtue of ‘purging statutes’ at the time when ‘Classification’ appeared, 19 in
effect transformed interested witnesses into disinterested ones. In a withering critique,
Gulliver and Tilson observed, inter alia, that whereas disinterested witnesses were no
13
14
15
16
17
18
19
here in England.’ Henry Swinburne, A Briefe Treatise of Testaments and Last Willes (photo.
reprint 1978) (1590) pt 4, §26; see also, pt 1, §§ 9–10, pt 4, §27.
Spectacular cases of fraudulent wills have dotted the annals of history, from early times to
modern. See, eg, Cole v Mordaunt (Unreported, 1676) (described and discussed in Mathews v
Warner, 31 Eng Rep 96, 100 (Ch. 1798)); Gordon Brown and Scott Myers, Administration of
Wills, Trusts, and Estates (4th ed, 2009) 5 (discussing the estate of Howard Hughes).
See 2 Frederick Pollock and Frederick W Maitland, History of English Law (2nd ed, reissued
1968) 318–20, 340; George L Haskins, ‘The Beginnings of Partible Inheritance in the American
Colonies’ (1942) 51 Yale Law Journal 1280, 1289.
See Henry Sugden, An Essay on the Law of Wills 178–80 app. (London, S Sweet 1837).
Gulliver and Tilson, above n 3, 10. The trend in the timing of will execution played out over the
second half of the nineteenth century. See Lawrence M Friedman, ‘Patterns of Testation in the
19th Century: A Study of Essex County (New Jersey) Wills’ (1964) 8 American Journal of Legal
History 34, 37–39.
See Rossetter v Simmons 6 Serg. & Rawle 452, 454–55 (Pa 1821); Swinburne, above n 12, pt 1,
§ 11; Haskins, above n 14, 1287.
See Waller v Waller, 42 Va (1 Gratt.) 454, 476–77 (1845); John R Rood, A Treatise on the Law
of Wills (1904) § 258; Philip Mechem, ‘The Rule in Lemayne v Stanley’ (1931) 29 Michigan
Law Review 685, 690.
See Percy Bordwell, ‘The Statute Law of Wills’ (Pt 1) (1928) 14 Iowa Law Review 1, 17–25.
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2016
longer required to protect the typical, healthy testator – a role that medical staff could
play for a hospitalized one, in any event – neither was disinterest any longer
considered necessary to secure accurate evidence. The common-law bar on interested
testimony had long since disappeared, making the disinterested witness requirement an
anachronism. In point of fact, ‘the remedies are employed more frequently against
innocent parties who have accidentally transgressed the requirement than against
deliberate wrongdoers, and this further confirms the imaginary character of the
difficulty sought to be prevented’. 20 In due course, the drafters of the Uniform Probate
Code bowed to this logic. 21 Purging statutes now stand in the minority among
American states, 22 one of the fruits of Gulliver and Tilsonʼs analysis, thanks to the
attentiveness of the Uniform Law Commissioners. 23
Other applications suggested by Gulliver and Tilson were more far-reaching and
prophetic – but not discernably influential. One suggestion of theirs, to validate
testamentary instruments in ‘functional compliance’ 24 with the objectives of the statute
of wills, went undeveloped in the article, and it remains unclear how far they would
have favoured extending the principle. 25 The idea appears harmonious with the
subsequent push to give effect to documents intended as wills that substantially, but
not fully, meet the formal requirements. 26 Yet, this concept had been aired and applied
even before 1941. As early as 1926, the treatise writer Professor William Page had
identified cases holding that “substantial compliance with the Wills Act is sufficient;
and that a will is invalid only where there is no substantial compliance with such
statute.” 27 Gulliver and Tilson gave this line of cases an academic imprimatur that
others have since echoed and amplified. 28
20
21
22
23
24
25
26
27
28
See Gulliver and Tilson, above n 3, 10–13.
See Uniform Probate Code § 2-505, 8 pt 1 U.L.A. 220 (2013).
See Restatement (Third) of Property: Wills and Other Donative Transfers (1999) § 3.1 statutory
note 9.
Although the comment accompanying this provision of the Code included no references, see
Uniform Probate Code § 2-505 cmt, 8 pt 1 U.L.A. 220 (2013), the reporter cited to Gulliver and
Tilsonʼs analysis of interested witnesses in a promotional article, suggesting its influence upon
the Code. See Richard V Wellman and James W Gordon, ‘Uniformity in State Inheritance
Laws: How UPC Article II Has Fared in Nine Enactments’ (1976) Brigham Young University
Law Review 357, 382–84, n 124; see also John H Langbein, ‘Substantial Compliance with the
Wills Act’ (1975) 88 Harvard Law Review 489, 496 (confirming the article’s influence on this
section of the Code).
Gulliver and Tilson, above n 3, 19.
See ibid 17 (“[A]n intended transfer should be sustained if the facts show substantial
performance of the ritual and evidentiary functions, whatever may be the particular method of
securing that performance. . . . Such a functional test of the validity of the alleged transfer is
surely more fundamental than purely technical criteria.”) (footnote omitted).
See Uniform Probate Code § 2-503, 8 pt 1 U.L.A. 215 (2013); Restatement (Second) of
Property: Donative Transfers (1992) § 33.1 cmt g; Restatement (Third) of Property: Wills and
Other Donative Transfers (1998) § 3.3 & cmt b.
1 William Herbert Page, The Law of Wills (2nd ed, 1926) § 233, 407 (observing further that
“[w]hether the Wills Act will be construed strictly or liberally is a question upon which there has
been some difference of opinion”). Subsequent editions have repeated the assertion and added
to the collection of cases. See, eg, 2 Page on the Law of Wills (William J Bowe & Douglas H
Parker eds, rev ed 2003, & Jeffrey A Schoenblum ed, Supp 2016) §19.4, 14–15. But as early as
1901, in the first edition, Professor Page hinted at the idea: “these statutes [of wills] must be
substantially complied with or the will will be invalid.” William Herbert Page, A Concise
Treatise on The Law of Wills (1901) § 158, 181.
See Langbein, above n 23; John H. Langbein, ‘Excusing Harmless Errors in the Execution of
Wills: A Report on Australiaʼs Tranquil Revolution in Probate Lawʼ (1987) 87 Columbia Law
Review 1; James Lindgren, ‘The Fall of Formalismʼ (1992) 55 Albany Law Review 1009, 1010–
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Vol 35(1) Gulliver and Tilson’s ‘The Classification of Gratuitous Transfers’
The thrust of Gulliver and Tilsonʼs analysis – in fact, the bulk of the article –
addressed the formalization of living trusts and revocable pay-on-death designations of
various sorts. These devices – now commonly known as will substitutes – were
already growing quietly in popularity at the time when ‘Classification’ appeared, 29 a
quarter century before the publication of Norman Daceyʼs How to Avoid Probate cast
them into the national spotlight. 30
When ‘Classification’ appeared in 1941, courts weighed the formal requirements
for will substitutes by assessing their temporal characteristics. Ones found to be
testamentary in nature were void, unless they had been formalized according to the
strictures of the state statute of wills. By contrast, those held inter vivos had only to
satisfy the common law of gifts, the equitable doctrine of trusts, and the statute of
frauds. Courts chose the category by assessing whether the beneficiary of a will
substitute did or did not enjoy some ‘present interest’ immediately, sufficing to
distinguish the beneficiary from one with a mere expectancy of inheritance under a
will. 31
Exploring the existing judicial opinions – not yet superseded by legislation in
1941 – Gulliver and Tilson showed how the law of will substitutes had become
hopelessly muddled. Courts held that revocable pay-on-death designations attached to
life insurance and trusts with a third party trustee created inter vivos interests in their
death beneficiaries.
Simultaneously, courts held that revocable pay-on-death
designations for deeds, custodial accounts, contracts, and gifts through agents (other
than gifts causa mortis) created testamentary interests in their death beneficiaries.
Meanwhile, courts confronted with revocable pay-on-death designations for savings
accounts and for employee death benefits respectively had failed to reach a consensus
on the status of death beneficiaries. 32
Gulliver and Tilson rejected these contradictory formalisms. The present interest
test constituted ‘an intellectual exercise of the most abstract character’, 33 mere ‘verbal
clothing’ for results that ‘can be manipulated almost at will by the courts’, 34 and – still
more pejoratively – ‘a shell game’. 35 They advocated instead a ‘functional test’ for the
formal validity of all gratuitous transfers, premised on whether a given transfer served
sufficiently the functions of formalizing rules that their article had earlier identified. 36
29
30
31
32
33
34
35
36
16; Peter T. Wendel, ‘Compliance with the Wills Act Formalities: The ‘Flexible Strict
Complianceʼ Approachʼ (2016) (unpublished manuscript) (on file with author).
See Gulliver and Tilson, above n 3, 24 (referring to the trend). Four years before Gulliver and
Tilson published their work, Professor Thomas Atkinson coined the term ‘will substitutes’ to
identify these devices collectively for the first time, an indication of their rising importance. See
Thomas E Atkinson, Handbook of the Law of Wills (1937) 122. For an earlier allusion to this
terminology, see C W Leaphart, ‘The Trust as a Substitute for a Will’ (1930) 78 University of
Pennsylvania Law Review 626.
Daceyʼs first edition appeared in 1965. Within a matter of weeks, this unlikely work had soared
to the top of the New York Times bestsellers list, supplanting Masters and Johnsonʼs Human
Sexual Response (1966). See Edwin McDowell, ‘Book Notes’, New York Times, 7 March 1990,
C23. It is believed that ‘[m]ore wealth passes by way of will substitutes than in probate’ today,
although statistics are wanting. Dukeminier and Sitkoff, above n 8, 435. Will substitutes also
exist under English law, although they have not flourished to the same extent and fewer types of
them are valid in England. For a discussion, see Alexandra Braun, ‘Will-Substitutes in England
and Wales’ in Alexandra Braun & Anne Röthel (eds) Passing Wealth on Death: Will-Substitutes
in Comparative Perspective (2016) 51–77.
See Restatement of Trusts (1935) § 57; Atkinson, above n 29, §60, 137.
See Gulliver and Tilson, above n 3, 18–39.
Ibid 39.
Ibid 18.
Ibid 37.
Ibid 17.
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That comprised ‘the major thesis of this article’. 37 On the basis of their functional test,
Gulliver and Tilson advocated making valid all revocable pay-on-death designations
committed to writing and concerning property entrusted to a third party or orchestrated
through arrangements with a corporate or business entity. 38 Decisions invalidating
such interests were, in their delightfully understated phrase, ‘unfortunate’. 39 In
contrast, oral declarations of interest at death, or written declarations unaccompanied
by any form of delivery, disserved the functions of transfer formalities and should
fail. 40 Accordingly, Gulliver and Tilson countenanced will substitutes, but with
caveats.
Gulliver and Tilson had no qualms about the ramifications of their expansive
approach to will substitutes. One concern was that by making revocable transfers valid
as inter vivos, lawmakers would undermine protective legislation for dependents,
granting a surviving spouse a share of the probate estate. 41 Gulliver and Tilson
brushed aside the objection as answerable by purposive construction of forced share
statutes: ‘It would not preclude protection of the statutory share of the spouse, which
can be based on the policy of safeguarding the objective of that statute and should not
require classification . . . as a will’. 42
The law of will substitutes eventually caught up with these ideas. Yet, it is a
striking fact that ‘Classification’ made its mark by virtue of its first, derivative part,
rather than its second, more imaginative part. Cases citing the article have done so for
its analysis of will formalities. 43 Meanwhile, the present interest test disappeared only
gradually from the case law, hanging on in some states until fairly recent times. 44
It was left to the model lawmakers eventually to adopt Gulliver and Tilsonʼs
thesis – but at this juncture they appear to have reinvented the wheel. The Uniform
Probate Code creates broad allowance for revocable pay-on-death designations and
implicitly rejects the ‘present interest’ test, which the Code nowhere mentions as
doctrinally relevant. 45 Meanwhile, the Code explicitly renders all of these vehicles
subject to the forced share of a surviving spouse under state law. 46 Yet, if one scours
the ‘Law Review and Journal Commentaries’ that accompany these sections, along
with the relevant scholarship of the reporters, ‘Classification’ is nowhere mentioned –
not even once. 47 The first Restatement of Trusts acknowledged the present interest test
in 1935. The pertinent section states that ‘[w]here the settlor transfers property in trust
and reserves not only a beneficial life estate and a power to revoke and modify the trust
37
38
39
40
41
42
43
44
45
46
47
Ibid.
Ibid 19–20, 22, 24–28, 38–39.
Ibid 27–28, 37.
Ibid 17 n 62, 24.
Ibid 36–37.
Ibid 37.
See, eg, Gower v Winelander (Estate of Parsons), 163 Cal Rptr 70, 74–75 (Ct App, 1980); In re
Will of Ranney, 589 A.2d 1339, 1344 (NJ, 1991); McKay v Kimble (In re Estate of Kimble), 871
P.2d, 22, 24–25 (NM Ct App, 1994).
The present interest test remained viable law as late as the 1970s. See Olin L Browder, ‘Giving
or Leaving – What Is a Will?’ (1977) 75 Michigan Law Review 845, 851–53, 875–77. For a
discussion of the evolution of the case law, see Austin Wakeman Scott and William Franklin
Fratcher, The Law of Trusts (4th ed, 1987) § 57.2, 139–48. For modern case law, which eschews
the present interest test, see Austin Wakeman Scott et al., Scott and Ascher on Trusts (5th ed,
2006) § 8.2.2.
See Uniform Probate Code § 6-101 & cmt, 8 pt 3 U.L.A. 354 (2013).
See ibid § 6-102, 8 pt 3 U.L.A. 357 (2013).
See ibid §§ 6-101, 6-102, 8 pt 3 U.L.A. 355, 361 (2013); John H. Langbein, ‘The Nonprobate
Revolution and the Future of the Law of Succession’ (1984) 97 Harvard Law Review 1108;
Richard V Wellman, ‘Transfer-on-Death Securities Registration: A New Title Form’ (1987) 21
Georgia Law Review 789.
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Vol 35(1) Gulliver and Tilson’s ‘The Classification of Gratuitous Transfers’
but also such power to control the trustee . . ., the disposition so far as it is intended to
take effect after his death is testamentary’. 48 In 1959, the second Restatement
jettisoned the present interest test implicitly, concluding that the ‘disposition is not
testamentary . . . merely because the settlor reserves a beneficial life interest or because
he reserves in addition a power to revoke the trust in whole or in part, and a power to
modify the trust, and a power to control the trustee as to the administration of the
trust’. 49 It was left to the third Restatement to reject the test explicitly in 2003 as
‘confus[ing] the issue’. 50 Once again, neither the second nor third iterations of the
Restatement acknowledged ‘Classification’ as the wellspring of this idea.
In the process, the model lawmakers lost track of Gulliver and Tilsonʼs caveats,
which they might have contemplated to carve out exceptions to the validity of will
substitutes. Both living trusts created by oral declaration and ones under which a
settlor doubles as trustee, and hence delivers nothing, remain valid under the Code and
the Restatement. 51 Ironically, the caveats have grown increasingly pointed as the
present interest test has ebbed. Under traditional law, the trustee of a revocable trust
owed fiduciary duties to death beneficiaries on the theory that they already enjoyed an
existing interest in the trust. That meant the settlor-qua-trustee of a self-settled trust
had to segregate and earmark trust assets, 52 actions immediately following a
declaration of trust that could serve the ritual function, if not the evidentiary function
of transfer formality. But with the fall of the present interest theory, courts – with the
blessing of the model lawmakers 53 – accepted that the trustee of a revocable trust owed
fiduciary duties only to the settlor, hence to no one if the trust was self-settled. 54 These
trusts have become perfect simulacrums of wills. As such, the model laws effectively
validated oral and unexecuted wills in the guise of trusts – doctrines that fail to take
Gulliver and Tilsonʼs functional analysis seriously. 55
IV
All of which presents a minor mystery. Why has ‘Classification’ been endlessly
cited for its derivative component and all but forgotten for its ‘major thesis’? 56
Perhaps the answer is simply that Gulliver and Tilson were ahead of their time. Their
functional model could not compete in a legal environment still dominated by an
abstract ideology. Yet, that would not explain why their work was not rediscovered,
48
49
50
51
52
53
54
55
56
Restatement of Trusts (1935) § 57(2); see also § 57(3).
Restatement (Second) of Trusts (1959) § 57; see also § 57 cmt b.
Restatement (Third) of Trusts (2003) § 25 cmt b.
See Uniform Probate Code § 6-101 & cmt, 8 pt 3 U.L.A. 354 (2013) (creating a safe harbour for
written revocable trusts but adding in the accompanying comment that ‘[t]his section does not
invalidate other arrangements by negative implication. Thus, this section does not speak to . . .
oral trusts to hold property at death for named persons, . . . already generally enforceable under
trust law.’); Restatement (Third) of Trusts (2003) §§ 20, 25.
See In re Petition of Acchione, 227 A.2d 816, 820 (Pa 1967) (observing that a settlor acting as
trustee is ‘subject to all the duties and responsibilities imposed on any other trustee.’).
See Uniform Trust Code §603(a) & cmt (amended 2010), 7C U.L.A. 553 (2006); Restatement
(Third) of Trusts (2007) § 74 & cmt a(1).
See Fulp v Gilliland, 998 N.E.2d 204, 207–10 (Ind 2013); In re Trust # T-1 of Trimble, 826
N.W.2d 474, 482-90 (Iowa 2013); Ladd v Ladd, 323 S.W.3d 772, 778–79 (Ky Ct App 2010);
Gunther v Gunther (In re Stephen M. Gunther Revocable Living Trust), 350 S.W.3d 44, 46 (Mo
Ct App, 2011).
Statutory law in two states, however, requires living trusts to be executed with the same
formalities as wills. See Del. Code Ann. tit. 12, § 3545(a) (2007); Fla. Stat. Ann. §
736.0403(2)(b) (West, 2010).
Gulliver and Tilson, above n 3, 17.
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2016
and cited, at a later time. The fact that ‘Classification’ is known as a work on wills,
when its authors spoke primarily to will substitutes, remains curious. 57
Could it be that Gulliver and Tilson were, in a sense, victims of their own
success? ‘Classification’ʼs functional analysis of will substitutes was, in 1941, a breath
of fresh air. But its review of the functions of formality was simultaneously handy and
readily applicable to the theory and doctrine of wills. For courts and commentators,
the rest of the article may have paled by comparison. One is left wondering whether
Gulliver and Tilson made a mistake by saying too many important things at once.
It would not be the first time. The famous ‘Gettier problem’ in epistemology
might have been christened the ‘Russell problem’, had Bertrand Russell not buried it
within a larger – albeit much read – tome, half a century earlier. 58 But Gettierʼs
articulation, isolated and confined, was all of three pages long. 59 It stood out, in a way
that Russellʼs analysis did not.
And so, it could be that readers of Gulliver and Tilson fell victim to what is
known in cognitive psychology as a salience effect: 60 when oneʼs attention is drawn to
important information, it produces a sort of glare, possibly distracting attention from
other things. This tendency is sometimes intentionally exploited, as when a magician
performs sleight of hand. The phenomenon can also arise accidentally and contrary to
actorsʼ intentions.
That Gulliver and Tilson chose to construct ‘Classification’ as they did appears
sensible at first sight. Their functional analysis of the formalities of will substitutes
depended on a preliminary recitation of the functions of will formalities that will
substitutes likewise needed to fulfill. The authors built their argument in stages. That
the foundation of their work turned out to overshadow its actualization doubtless was
not what its authors had in mind. It is a hazard they might have avoided by breaking
up the work into its component parts and publishing each one of them separately. The
result would have been less cohesive scholarship. But, just possibly, it would have
made for more impactful scholarship.
Glib though the point may appear, it could be that the less an author has to say at
any one time, the better.
57
58
59
60
Which is not to say that Gulliver & Tilsonʼs contribution to the theory of will substitutes has
gone entirely unnoticed. See McGovern et al., above n 8, § 4.6, 233.
See Bertrand Russell, The Problems of Philosophy (1912) 132–40. For a recognition, see Alvin
I Goldman, ‘A Causal Theory of Knowing’ (1967) 64 Journal of Philosophy 357, 357 n 1
(observing of Gettierʼs analysis, ‘essentially the same point was made by Russell in 1912’).
See Edmund L Gettier, ‘Is Justified True Belief Knowledge?’ (1963) 23 Analysis 121.
See, eg, Scott Plous, The Psychology of Judgment and Decision Making (1993) 178–80.