Restatement (Third) of Property: Wills and Other Donative Transfers

Editorial note. American donative-transfers law developed unevenly across the twentieth century, with the Uniform Probate Code (1969, extensively revised 1990) leading the modernization on the statutory side. The Third Restatement, drafted from 1985 to 2011 under Reporter Lawrence W. Waggoner, restates that modernized common law and coordinates with the UPC.

Editorial note. To restate the modern American law of donative transfers, to integrate the law of wills with the law of non-probate transfers, and to align common-law doctrine with the reforms of the Uniform Probate Code.

Editorial note. Intestate succession; execution and revocation of wills; will substitutes; construction of donative documents; class gifts; future interests; the Rule Against Perpetuities as reformed; and powers of appointment.

Editorial note. Volume 1 (1999): Intestate Succession and Execution of Wills (§§ 1.1–3.4). Volume 2 (2003): Revocation, Revival, Components, Contracts Concerning Wills, and Will Substitutes (§§ 4.1–7.2). Volume 3 (2011): Rules of Construction; Class Gifts; Future Interests; Perpetuities; Powers of Appointment (§§ 8.1–19.24).

Editorial note. Black-letter rules with Comments, Illustrations, and Reporter's Notes. Comments and Reporter's Notes coordinate expressly with the Uniform Probate Code and the Uniform Statutory Rule Against Perpetuities.

Editorial note. Supersedes the donative-transfers portions of the Restatement (First) of Property (1936–1944). Coordinated with the Restatement (Third) of Trusts (Am. L. Inst. 2003–2012) on the boundary between trusts and other donative devices.

Editorial note. Section 3.3 (harmless error in execution of wills) is the flagship reform. Sections on will substitutes (§§ 7.1–7.2), class gifts (§§ 13.1–15.4), and future interests (§§ 25.1–27.3) supply the leading modern American formulations. The Restatement embraces functional over formal analysis of donative acts.

Editorial note. State courts have adopted specific sections—especially the harmless-error rule—by judicial decision, and state legislatures have enacted analogous UPC provisions. The Restatement is routinely cited in probate and construction litigation.

Editorial note. Frequently cited on execution formalities (§§ 3.1–3.3), revocation (§§ 4.1–4.3), lapse and antilapse (§ 5.5), construction of ambiguous donative documents (§§ 10.1–11.3), and application of the Rule Against Perpetuities as reformed.

Editorial note. Persuasive secondary authority. State probate codes and precedent control where they speak; the Restatement supplies the rule of decision where they do not, and its Reporter's Notes coordinate expressly with the Uniform Probate Code.

Editorial note. See Statute of Wills, 32 Hen. 8, c. 1 (1540); Statute of Frauds, 29 Car. 2, c. 3 (1677) (§§ 4, 5 on wills of land, now largely subsumed by the Statute of Wills' American successors); Uniform Probate Code (Unif. L. Comm'n 1969, as amended); Uniform Statutory Rule Against Perpetuities (Unif. L. Comm'n 1986); Restatement (Third) of Trusts (Am. L. Inst. 2003–2012).

Editorial note. Trusts-and-estates practitioners rely on the Restatement for construction of donative documents, planning around the boundaries between probate and non-probate transfers, and litigation of contested wills.