'Passing Wealth on Death. Will-Substitutes in Comparative Perspective' by Alexandra Braun and Anne Röthel in Braun and Röthel (eds),
Passing Wealth on Death. Will-Substitutes in Comparative Perspective (Hart, 2016)
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Wealth can be transferred on death in a number of different ways, most commonly by will. Yet a person can also use a variety of other means to benefit someone on death. Examples include donationes mortis causa, joint tenancies, trusts, life-insurance contracts and nominations in pension and retirement plans. In the US, these modes of transfer are grouped under the category of 'will-substitutes' and are generally treated as testamentary dispositions.
Much has been written about the effect of the use of will-substitutes in the US, but little is generally known about developments in other jurisdictions. For the first time, this collection of contributions looks at will-substitutes in a comparative perspective. It examines mechanisms that pass wealth on death across a number of common law, civil law and mixed legal jurisdictions, and explores the rationale behind their use. It analyses them from different viewpoints, including those of owners of businesses, investors, as well as creditors, family members and dependants. The aims of the volume are to show the complexity and dynamics of wealth transfers on death across jurisdictions, to identify patterns between them, and to report the attitudes towards the different modes of transfer in light of their utility and potential frictions they give rise to with policies and principle underpinning current laws.
'Will-Substitutes in England and Wales' by Braun in the same volume
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Will-substitutes, that is to say mechanisms that are functionally equivalent to wills, are very common in the US, where much of the wealth is transferred on death by means other than wills, and thus outside traditional probate procedures. The purpose of this chapter is to investigate whether this is the case also in England and Wales.
This chapter explores some of the most common mechanisms used, the rationale behind their use, as well as the consequences that arise from their proliferation. In doing so, it considers will-substitutes from different perspectives, including those of creditors and family members and dependants. It argues that the current state of the law in England and Wales is unsatisfactory and that it is time for a debate involving non-probate transfers and their relationship with current succession laws.
'Exploring Means of Transferring Wealth on Death: A Comparative Perspective' by Braun and Röthel in the same volume
notes
Will-substitutes are mechanisms that are functionally equivalent to wills and that allow the disposition of property on death outside the sphere of traditional succession law rules. This chapter provides an overview of the principal means through which property can be disposed of on death across a number of jurisdictions. It further offers a discussion of the rationale behind their use and explores the challenges these mechanisms present for the operation and functioning of succession law.
