Articles in this issue

Real Property Trust and Estate

Defective Catastrophe Clauses in Wills: Paths to Reform

This Article explores the problem of construing what I term “defective catastrophe clauses” in wills. Defective catastrophe clauses provide for the contingency that a beneficiary will die simultaneously, or in a common calamity, with the testator but neglect to allow for the possibility that the beneficiary will predecease the testator. The Article explores the extensive case law addressing this problem, spotlighting the most recent and ballyhooed case on point, Estate of Duke. The Article observes that this body of decisions reflects a tension between applying existing law, which fails to respond adequately to the problem, and employing one or another legal fiction to circumvent existing law. The Article argues that lawmakers should confront the problem head on by establishing a new default rule, ideally in the form of a statute, construing catastrophe clauses by implication to cover the possibility that the beneficiary will predecease the testator.

Personal Taxation

IRD and Charities: The Separate Share Regulations and the Economic Effect Requirement

Taxpayers sometimes die with a right to gross income that has not been received at the time of death and is not reportable on the decedent’s final or other pre-death income tax return, that is, with an entitlement to items of “income in respect of a decedent” (IRD). An estate with charitable beneficiaries that receives IRD will want a section 642(c) income tax charitable deduction for amounts of gross income distributed or distributable to or set aside for a charitable purpose to offset the gross income realized when the IRD is collected and reportable in gross income. This is possible when the IRD is distributable to or set aside for the charity pursuant to the terms of the governing instrument.This Article analyzes the potential application of the separate share regulations under section 663(c) and the income tax charitable deduction under section 642(c) when the estate has both charitable and non-charitable residuary beneficiaries. This Article concludes that a charity’s interest in the residue of an estate is not a separate share within the meaning of the separate share regulations.Next, this Article considers whether a direction in the decedent’s will to distribute items of IRD to charity as a part of the charity’s interest in the decedent’s residuary estate satisfies the “economic effect” requirement found in the Treasury Regulations for section 642(c). This Article suggests that it does, but that the conclusion is not certain.Finally, the Article suggests possible solutions to assure that the income tax charitable deduction is available for an estate when it pays over the proceeds from items of IRD to a charity.

Real Estate

The Revised Uniform Residential Landlord and Tenant Act: A Perspective from the Reporters

The Revised Uniform Residential Landlord and Tenant Act of 2015 tackles a number of issues that were unaddressed in its predecessor, the Uniform Residential Landlord and Tenant Act of 1972, while modifying other provisions to clarify the parties’ rights. This Article explains those changes from the perspective of the co-reporters who assisted the Uniform Law Committee drafting committee that worked on the Act. The Article provides historical context, as well as the public policy choices that the committee considered in attempting to achieve an overall balance in landlord-tenant rights and obligations.