Succession law, the law governing trusts and estates, is experiencing an identity crisis. Similar to an individual going through a midlife crisis, the laws of succession seem to be in search of a new purpose or meaning. It seems odd that a legal discipline as old as private property succession law would lack the continuity of some shared jurisprudential image. Yet, despite its historical legacy, succession law appears to have neither a complete descriptive theory (explaining what the law is) nor a complete normative theory (explaining what the law should be), hence the identity crisis.
It may seem intuitive that before lawmakers impose a consequence on property owners there should be a unifying normative basis for making the imposition or preferring the selected consequences of the law, or both. However, rule making in succession law seems to be implemented and developed in an ad hoc manner. Although scholars and legislatures tend to pay lip service to succession law's historical core goal of effectuating a decedent's testamentary intent, this once-central value has been cast to the periphery of legal relevance. Accordingly, the policy goals of succession laws are largely amorphous, with no consensus built around any particular theory.' This patchwork nature of succession law, though, has proven to be fertile ground for scholarship. Succession law has been the subject of intensive analysis, debate, and exploration of different theories to justify and advocate the evolution of succession law.
Lee-ford Tritt, Technical Correction or Tectonic Shift: Competing Default Rule Theories Under the New Uniform Probate Code, 61 Ala. L. Rev. 273 (2010), available at http://scholarship.law.ufl.edu/facultypub/264