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Copyright 1972 by Northwestern University School of Law Printed In U.S.A.
Northwestern University Law Review Vol. 67, No. 1
THE PAYABLE ON DEATH ACCOUNT AND OTHER

WILL SUBSTITUTES
William M. McGovern, Jr.*
History repeats itself in strange ways. In medieval England,

land could not be devised by will and was subject to dower, claims
of creditors, and the feudal incidents, such as relief, wardship and
marriage. To avoid these restrictions, the practice arose of putting
land "in use." If A enfeoffed B to the use of A and his heirs, A's
equitable interest could now be devised and was free of dower, cred-
itors' claims, and the feudal incidents. In order to stop these evasions,
statutes were enacted, culminating in the Statute of Uses of 15351
which recited the foregoing "abuses," and sought to put an end to
this "subversion of the good and auncyent lawes."
Today wills are allowed, but are subject to formal requirements.
Property transferred by will is subject to death taxes and to claims
of the testator's creditors. In addition, the surviving spouse may
waive the will and take a share of the estate regardless of the testa-
tor's wishes. These restrictions are often circumvented by the use
of will substitutes such as life insurance, joint bank accounts, and
revocable living trusts. The latest of these avenues for avoiding pro-
bate is the payable-on-death (P.O.D.) account in which A deposits
money with the instruction that it be payable on his death to B.
This article will analyze the question of whether such an account or
any other will substitute in common use should be subject to the rules
governing wills.
FORMAL REQUIR MENTS
The prohibition against devises of land in medieval England was

based on the rule that land must be transferred by delivery.2 This
* Professor of Law, Northwestern University. Visiting Professor of Law,

University of California, Los Angeles, 1971-72. Member, Illinois Bar. A.B.
Princeton University, 1955; LL.B. Harvard University, 1958.
1 27 Hen. 8, c. 10 (1535). For earlier statutes see note 168 infra.
2 R. GLANVILLE, TRACTATUS DE LoIBus ET CONSUETUDINIBUS REGNI ANGLIE
69 (G. Hall ed. 1965). The Statute of Uses recites that "by the common Lawes of
NORTHWESTERN UNIVERSITY LAW REVIEW
was an inconvenient rule since a man might wish to provide for the
disposition of his land upon his death without surrendering it during
his lifetime. Sympathy for this desire probably contributed to the
Chancellor's recognition of uses. However, the elimination of the
necessity for delivery had its dangers. The Statute of Uses states
that wills were "sumtyme made by nude parolx and wordes" and
were "made by such persones as be visited with sykenes, in theyr
extreme agonyes and peynes or at such tyme as they have hadde
scantlye eny good memorie or remembrance; At whiche tymes they
• . . do many tymes dyspose indiscretely and unadvisidly theyr
landes;" furthermore, uses had led to "manyfest perjuryes by triall
of such secrete willes. ' '3 Some of these difficulties could have been
obviated by requiring that wills be in writing, but the Chancellor ap-
parently imposed no such requirement.4 When, however, five years
after the Statute of Uses, the King and Parliament were persuaded
to allow wills again, the Statute of Wills required a writing. 5 This
requirement could be satisfied by oral statements by the testator com-
mitted to writing by someone else. 6 The Statute of Frauds of 16761
required more; the will had to be signed by the testator and sub-
scribed by witnesses. These rules generally prevail in American law
today."
Arguably, the same formal requirements ought to apply to the
designation of a beneficiary in a life insurance policy, or a revocable
trust, or a joint bank account. These transactions have most of the
characteristics of wills. Usually the beneficiary designation is revo-
cable like a will, and the beneficiary, like a legatee, receives noth-
ing until the donor dies and then only if he survives him. The
modem will substitute is much like the gift causa mortis of Roman
law which was also revocable and conditioned upon the donee's sur-
viving the donor.' After some hesitation Roman law treated gifts
causa mortis like wills and subjected them to the same formal re-
this Realme, Landes . . . be not divisible by testament, nor ought to be transferrid

frome one to a nother, but by solemne lyvery and season ...... 27 Hen. 8, c. 10,
§ 1 (1535).
3 27 Hen. 8, c. 10, § 1; cf. GLANVILLE, supra note 2, at 70.
4 K. DIGBY, HISTORY OF THE LAW OF REAL PROPERTY 331, 337-38 (5th ed. 1897).
5 Statute of Wills, 32 Hen. 8, c. 1, § 1 (1540).
6 Brown v. Sackville, 73 Eng. Rep. 152 (K.B. 1552).
7 29 Car. 2, c. 3, § 5 (1676).
8 For the details see Rees, American Wills Statutes: 1, 46 VA. L. REv. 613 (1960).
A number of states allow unwitnessed wills if entirely in the testator's handwriting.
Id. at 634.
9 INsTTUTs 2.7.1.
67:7 (1972) The Payable on Death Account
quirements. 10 The same rule applies in France'1 and Louisiana. 2

In most American jurisdictions today, however, will substitutes
are usually held valid even though they do not comply with the for-
malities prescribed for wills.'" There is a clear trend in the cases
toward upholding them.' 4 A curious exception is the payable-on-
death bank account. Although the P.O.D. account is recognized by
the Uniform Probate Code' 5 and a few state statutes,' 6 courts which
have considered such accounts in the absence of a statute have gener-
ally held them invalid for failure to comply with the requirements
prescribed for wills.' 7 The P.O.D. account has been distinguished
from the joint account on the ground that the latter conveys a "pres-
ent interest," and thus, like other inter vivos conveyances, is not sub-
ject to the formal requirements of wills.' 8 It has been argued that
the P.O.D. account on the other hand "brushes uncomfortably close
to a purely testamentary transfer," and therefore "a greater than
usual formality" should be required for it. 9 This suggested distinc-
tion between joint and P.O.D. accounts is not persuasive. More
10 CODE 8.57.4.
11 J.BRISSAUD, A HISTORY OF FRENCH PRrvATE LAw 715 (1912). The Napo-
leonic Code prohibits gifts causa mortis. C. Civ. art. 893 (69e ed. Petits Codes
Dailoz 1969-70); Baudrouet v. Baudrouet, [19001 D.P. I. 358 (Cass.). However,
the designation of a beneficiary in a life insurance policy is effective. Law of July
13, 1930, art. 67, [19311 D.P. IV. 1, 36.
12 LA. CIVIL CODE art. 1570 (West 1952). The designation of a beneficiary of
death benefits under a pension plan has been held valid, Succession of Rockvoan,
141 So. 2d 438 (La. App. 1962), but not a joint bank account. Succession of
Grigsby v. Hamilton, 219 So. 2d 832 (La. App. 1969).
13 T. ATKiNSON, HANDBOOK OF THE LAW OF WILLs § 39 (2d ed. 1953) (insur-
ance) [hereinafter cited as ATKINsON]; Farkas v. Williams, 5 IL. 2d 417, 125 N.E.2d
600 (1955) (revocable trust); Estate of Michaels, 26 Wis. 2d 382, 132 N.W.2d 557
(1965) (joint bank account).
14 Compare Matter of Hillowitz, 22 N.Y.2d 107, 238 N.E.2d 723 (1968), with
McCarthy v. Pieret, 281 N.Y. 407, 24 N.E.2d 102 (1939). See also National
Shawmut Bank v. Joy, 315 Mass. 457, 53 N.E.2d 113 (1944), overruling McEvoy v.
Boston Five.Cents Savings Bank, 201 Mass. 50, 87 N.E. 465 (1909).
15 UNIFORM PROBATE CODE § 6-104(b) [hereinafter cited as U.P.C.].
16 ILL. REV. STAT. ch. 32, § 770(c) (1971); IOWA CODE § 534.11(8) (1970);
N.J. STAT. ANN. § 17:9A-217 (West 1963); Omo REV. CODE § 2131.10 (Baldwin
1971).
17 Compton v. Compton, 435 S.W.2d 76 (Ky. 1968); Blais v. Colebrook Guaranty
Savings, 107 N.H. 300, 220 A.2d 763 (1966); Methodist Church v. First Nat1 Bank,
125 Vt. 124, 211 A.2d 168 (1965); Grace v. Klein, 150 W. Va. 513, 147 S.E.2d 288
(1966).
38 In re Atkinson's Estate, 85 Ohio L. Abs. 540, 175 N.E.2d 548 (P. Ct. 1961);
Tucker v. Simrow, 248 Wis. 143, 21 N.W.2d 252 (1946).

19 Hines, Personal Property foint Tenancies: More Law, Fact and Fancy, 54
MINN. L. REv. 509, 557 (1970).
stringent formal requirements are imposed for wills than for inter
vivos transfers because when the validity of a will is tested, the
testator, a crucial witness to its execution, is always dead. 20 But
usually litigation concerning joint bank accounts arises after the de-
positor is dead, and therefore presents the same problem of deter-
mining a decedent's intent. In this respect a joint account is no
different than a P.O.D. account or any other will substitute.
United States Savings Bonds can be purchased in P.O.D. form,
21
and the beneficiary designation on such a bond is clearly effective.
The P.O.D. bond can perhaps be distinguished from a P.O.D. ac-
count because federal law under which the bonds are issued su-
percedes any formal requirements imposed by state law. 22 But
how is the P.O.D. account different from life insurance? If A
pays money to B and B in return promises to make payments on
A's death to C, the validity of this transaction in most states will
turn on whether B is an insurance company, the United States,
or a bank. In some states for no apparent reason a distinction
is made between such similar institutions as banks, savings and
loan associations, and credit unions.2 3 Sometimes with respect to
the same institution the result will turn on the form of words used.
In New York, for example, if a depositor uses the word "trust" all
is well, but if he neglects to employ the magic word, his "clear in-
tention" to have the account paid on death to another will be frus-
trated. 24 This distinction at least has the virtue of simplicity, but
the matter is more complex since courts in a particular jurisdiction
may construe "payable-on-death" language as creating a valid trust
in one case, but refuse to do so in another without any noticeable
difference in the facts.
20 Gulliver & Tilson, Classification of Gratuitous Transfers, 51 YALE L.3. 1, 6

(1941).
21 Franklin Washington Trust Co. v. Beltram, 133 N.J. Eq. 11, 29 A.2d 845
(Ch. 1943); Matter of Deyo, 180 Misc. 32, 42 N.Y.S.2d 379 (Sur. Ct. 1943). One
decision to the contrary, Decker v. Fowler, 199 Wash. 549, 92 P.2d 254 (1939),
has been changed by statute. WASH. REV. CODE § 11.04.240 (1965).
22 Winsberg v. Winsberg, 220 La. 398, 56 So. 2d 730 (1952); Free v. Bland, 369
U.S. 663 (1962).
23 The Illinois and Iowa statutes cited supra note 16 apply only to savings and
loan associations. In New Jersey, on the other hand, banks are also covered, but
not credit unions. In re Estate of Posey, 89 N.J. Super. 293, 214 A.2d 713 (Union
County Ct. 1965), aff'd per curiam, 92 N.J. Super. 259, 223 A.2d 38 (App. Div.
1966).
24 In re Schultz's Estate, 89 Misc. 55, 152 N.Y.S.2d 959 (Sur. Ct. 1956).
25 Compare Compton v. Compton, 435 S.W.2d 76 (Ky. 1968), with Hale v.
Hale, 313 Ky. 344, 231 S.W.2d 2 (1950).
These distinctions are anomalous and the Uniform Probate Code

does well to disregard them. A more important question is whether
any will substitutes should be exempted from the formal requirements
for wills. Dean Ritchie has summed up the arguments in favor of
bank account trusts; they are a "convenient and inexpensive method of
disposing of a bank account under circumstances that provide ade-
quate safeguards against the abuses at which the statutes of wills are
aimed."2 6 These arguments, which also apply to other will substi-
tutes, have often been urged, usually with the added thought that will
substitutes are beneficial to the less affluent; they are the "poor man's
2 7
'will."
To say that will substitutes are "convenient and inexpensive"

implies that wills themselves are inconvenient and expensive, but is
this true? Unlike the medieval requirement of delivery, the necessity
of a writing, signature and witnesses does not seem to be a great bur-
den, even for a poor man. The utility of some of the formalities pre-
scribed for wills may be questionable, 28 but they are not onerous.
Probably most people resort to will substitutes in order to avoid hir-
ing a lawyer to draft a will, and to avoid the delay and expense of
administration. However, one can draft a valid will without going to
a lawyer; in fact, wills drawn without counsel are not uncommon. 9
The expense of administration may be an undue burden, particularly
on small estates, but many statutes exempt small estates from ad-
ministration.3 0 However, these statutes typically have low dollar
limits, whereas there are no dollar limits on transmission by will
2 Ritchie, What Is a Will?, 49 VA. L. REV. 759, 763 (1963). Dean Ritchie also
suggests that the exemption of gifts causa mortis from the formalities prescribed for
wills may be justified because the requirement of delivery provides an adequate safe-
guard. Id. at 761. See also Foster v. Reiss, 18 N.J. 41, 52, 112 A.2d 553, 560
(1955). In later Roman law gifts were valid without delivery. INsrrruTs 2.7.2.
This may explain why gifts causa mortis were subject to the requirements of wills.
See note 10 supra.
27 ATmNsON § 41, at 177; Gulliver & Tilson, Classification of Gratuitous Trans-
fers, 51 YALE L.J. 1, 38-39 (1941); 1 A. Scorr, THE LAW OF TRUSTS § 58.3, at
527 (3d ed. 1967). Compare the privilege of making informal wills accorded to
soldiers in Roman law propter nimiam imperitiam. See INsTITuTEs 2.11.pr.
28 Gulliver & Tilson, Classification of Gratuitous Transfers, 51 YALE L.J. 1, 9-13
(1941); ATKINSON § 72, at 340-41.
29 A recent study of wills probated in England revealed that almost a quarter of
them were home made. COUNCIL OF JUSTicE, HOME MADE WILS 1 (1971). See
also 2 W. BLACKSTONE, COMMENTARIES *172 [hereinafter cited as BLACKSTONE].
30 E.g., U.P.C. § 3-1201; ILL. REv. STAT. ch. 3, § 324 (1971).
substitutes,3 1 and sometimes large amounts pass in this form.32 Thus

the "poor man's will" is not in fact confined to the poor.
The assertion that will substitutes "provide adequate safeguards
against the abuses at which the statutes of wills are aimed" is ques-
tionable in many instances. Some statutes authorizing certain will
substitutes require that the intent to pass the property be expressed
in a signed writing. 33 But most statutes dealing with joint or trust
accounts, like the Uniform Probate Code, have no such require-
ment.34 Normally a written notation will appear on the bank's records
or on a passbook, but sometimes it is not clear whether this notation
was made by or at the direction of the depositor, so that courts must
resort to testimony, sometimes by interested parties, of alleged oral
statements of intent by the decedent.3 5 Is this not the evil which
statutes of wills are designed to prevent? Courts tend to look unfa-
vorably upon claims by survivors to bank accounts where there is
no signed agreement. 36 But even if perjury rarely succeeds, should
the courts be burdened with the task of ascertaining the wishes of a
person so careless of making his intent clear? Are there not more
pressing problems of social concern to which courts might devote
their time?
The solution is not to subject will substitutes to all the ceremo-
nials prescribed for wills, which are designed partly to avoid the risk
that casual conversations may be mistaken for testamentary intent.ST
This risk seems insubstantial in the case of a bank account where
the depositor typically has gone to the bank in order to open or
change the form of the account, a fact which indicates deliberate
intent. But in order to be sure that this intent is accurately recorded,
a writing signed by the depositor seems to be a reasonable require-
ment.
31 ME. REv. STAT.' ANN. tit. 9, § 515(2) (West Supp. 1970), seems to be unique
in setting a maximum amount for joint bank accounts.
32 E.g., Estate of Simonson, 11 Wis. 2d 84, 104 N.W.2d 134 (1960) ($226,858).
33 N.Y.E.P.T.L. § 13-3.2(d) (McKinney 1967) (insurance and pension plans);
ARK. STAT. § 67-1838(5) (1966 repl.) (P.O.D. account).
34 E.g., IOWA CODE ANN. § 524.806-.807 (West 1970); N.J. STAT. ANN. §
17:9A-216, -218 (West 1963).
35 Manti v. Gunari, 5 Cal. App. 3d 442, 85 Cal. Rptr. 366 (CL App. 1970);
Betker v. Ide, 335 Mich. 291, 55 N.W.2d 835 (1952); Dyer v. Vann, 359 P.2d
1061 (Okla. 1961).
36 Jones, The Use of Joint Bank Accounts as a Substitute for Testamentary Dis-
position of Property, 17 U. PiTT. L. Rkv. 42, 54-55 (1955).
37 A. VON MEHREN, THE CIVxI LAw SYSTEM 605 (1957); Gulliver & Tilson,
Classification of Gratuitous Transfers, 51 YALE L.J. 1, 3-4 (1941).
Such a rule should be prescribed by statute, since courts are

understandably reluctant to create formal requirements by judicial
fiat. The formality prescribed should be reasonably related to the
object sought to be achieved. In Illinois an ambiguous statute has
been construed to require an agreement signed by both parties in
order to create a joint account.3 8 Although banks may desire to have
both parties' signatures, to impose this as a legal requirement for an
effective transfer at death seems as pointless as a requirement that
legatees sign a will.3 9 The Illinois statute has also been construed
to require that a joint account contain an express reference to the
right of survivorship; thus an account opened in the names of "A or
B" creates a tenancy in common so that only one-half passes to B
when A dies.4 0 Under the Uniform Probate Code, on the other hand,
such an account would pass entirely to B even though there was no
mention of the right of survivorship. 4 1 This seems to be the sounder
view, based on the probable intention of most persons opening joint
accounts. Sometimes joint accounts are opened simply for con-
venience, with no intent that the other party receive anything when
the depositor dies. But it is probably rare that a depositor opening
a joint account intends that the other party receive half of the funds
with the other half to be subject to administration as an asset of the
depositor's estate. Therefore a rule which dictates this result in the
absence of a clear expression of a contrary intention seems unsound.
One of the arguments sometimes advanced for validating will
substitutes is that their use has become common.4 3 In view of the
widespread popular belief in the validity of joint accounts, it seems
wrong to frustrate these expectations in the hope that the public will
be "made aware of the necessity of complying with the Statute of
Wills."4 4 Perhaps even the more limited requirement of a signed
38 Doubler v. Doubler, 412 Ill.597, 107 N.E.2d 789 (1952); Lipe v. Farmers
State Bank, - Ill. App. 2d -, 265 N.E.2d 204 (1970). The statute is ILL. REv.
STAT. ch. 76, § 2(a) (1971). Very similar language in § 2(c) of the same statute
has been held not to require an agreement signed by all parties for a joint tenancy
in stock. Frey v. Wubbena, 26 Ill.
2d 62, 185 N.E.2d 850 (1962).
39 But cf. Hines, Personal Property Joint Tenancies: More Law, Fact and Fancy,
54 MINN. L. Rnv. 509, 556 (1970).
40 Frey v. Wubbena, 26 IM. 2d 62, 185 N.E.2d 850 (1962). See also 2 AM~mCAi
LAW OF PROPEaTY § 6.4 (A. J. Casner ed. 1952).
41 U.P.C. §§ 6-101(4), -104(a). Accord, Brose Estate, 416 Pa. 386, 206 A.2d
301 (1965); Ann. STAT. § 67-1838(1) (1966 repl.). As to United States Savings
Bonds, see 31 C.F.R. H8 315.60, .62 (1971).
43 Gulliver & Tilson, Classification of Gratuitous Transfers, 51 YALE L.J. 1, 24
(1941); Matter of Reich, 146 Misc. 616, 618, 262 N.Y.S. 623, 626 (Sur. Ct. 1933).
44 In re Schultz's Estate, 89 Misc. 55, 58, 152 N.Y.S.2d 959, 963 (Sur. Ct. 1956).
writing would cause hardship in some cases. But it does not seem
unreasonable to expect that financial institutions, which attract busi-
ness by offering a means for avoiding probate, 45 should be familiar
with any formal requirements imposed by the law and should see
that their customers comply with these requirements. If a bank ac-
count serves as the "poor man's will," the bank is the "poor man's
lawyer" on whose advice as to the proper form depositors usually
rely. 6 If a bank's bad advice leads to frustration of a depositor's
intention because of failure to fulfill formal requirements imposed by
the law, it should be liable to the intended beneficiary.4" If such a
sanction is provided against the lax procedures which apparently pre-
vail at some banks,48 will substitutes can, in fact, provide "adequate
safeguards against the abuses at which the statutes of wills are aimed."
EXTRINSIC EVIDENCE
When a will has been duly executed, courts are naturally sus-
picious of attempts to prove by oral evidence that the testator in-
tended something other than what the written will provides.4 9 Nev-
ertheless, in a number of situations evidence extrinsic to the will
can be introduced to show that the will should not be given effect
as written. If a person has engaged in wrongful conduct, such as
undue influence, fraud, or breach of a promise to the testator, the
courts will either deny probate to the will or impose a constructive
trust on the legatee. It is more difficult to introduce extrinsic evi-
dence in cases in which no wrongful conduct is alleged. There is
authority that when a testator makes a will under a mistake of fact
not induced by fraud the will must stand,50 and that when a testator
bequeaths property, intending that the legatee turn it over to an-
other, no constructive trust will be imposed if the legatee did not
learn of the testator's intention until after the testator died. 51 These
45 Cf. Free v. Bland, 369 U.S. 663, 669 (1962).

46 E.g., Dyer v. Vann, 359 P.2d 1061, 1062 (Okla. 1961).
47 Robinson v. Colebrook Guaranty Savings Bank, 109 N.H. 382, 254 A.2d 837
(1969). I am grateful to Professor Jesse Dukeminier for calling my attention to this
case.
48 See, e.g., Crocker-Anglo National Bank v. American Trust Co., 170 Cal. App.
2d 289, 338 P.2d 617 (Ct. App. 1959); Betker v. Ide, 335 Mich. 291, 55 N.W.2d
835 (1952).
49 Swackhamer v. Forman, 26 Ohio App. 2d 72, 269 N.E.2d 48 (1971).
50 ATKiNsON § 59.
51 RESTATEmENT (SEcoND) OF TRUSTS § 55, comment f. (1959); 1 A. ScoTr,
THE LAW OF TRUSTS § 55.5 (3d ed. 1967).
holdings seem questionable-why should the admissibility of extrin-

52
sic evidence turn on how wrongful someone is alleged to have been?
In many cases parol evidence can be used even though no wrongful
conduct is charged, for example, to show that the testator lacked
capacity, or to resolve ambiguities in the written will,53 or to show
that words were inserted therein by mistake, 54 or that the will was
not intended to be operative.55
Since will substitutes are typically executed with less formality
than wills, it is not surprising that courts have generally been at
least as liberal in admitting extrinsic evidence to show the decedent's
intent. For example, the designated beneficiary of an insurance pol-
icy can be compelled to share the proceeds with others in accordance
with the insured's orally expressed wishes. 5 6 Although federal reg-
ulations provide that the registration of United States Savings Bonds
shall be "conclusive" except "to correct an error," 7 courts have
awarded the proceeds from bonds to someone other than the regis-
tered beneficiary for a variety of reasons.5" When land is held in
joint tenancy, oral evidence can be introduced to show that a joint
tenant named in the deed was not intended to have a beneficial in-
terest. 59
Bank accounts provide the most commonly litigated cases in-
volving extrinsic evidence. If one deposits money in an account
"intrust for" another, oral evidence can be used to show that no trust
was actually intended.6 0 As to joint accounts there is confusion in
the cases. It is sometimes held that the parol evidence rule pre-
cludes any attempt to show that a joint account was created only
for convenience with no intent to have the proceeds go to the sur-
vivor when the depositor died. 6 At the other extreme is the view
52 Cf. McGovern, The Enforcement of Informal Contracts in the Later Middle

Ages, 59 CALIF. L. REv. 1145, 1173 (1971).
53 In re Estate of Seaton, 4 Wash. App. 380, 481 P.2d 567 (1971); In re Estate
of Thompson, 164 N.W.2d 141 (Iowa 1969).
54 Breckheimer v. Kraft, - Ill. App. 2d -, 273 N.E.2d 468 (1971); Estate of
Gibbs, 14 Wis. 2d 490, 111 N.W.2d 413 (1961).
55 ATKINSON § 46.
56 Ballard v. Lance, 6 N.C. App. 24, 169 S.E.2d 199 (1969).
57 31 C.F.R. §§ 315.5, .48 (1971).
58 Byer v. Byer, 180 Kan. 258, 303 P.2d 137 (1956); Tanner v. Ervin, 250 N.C.
602, 109 S.E.2d 460 (1959); Katz v. Lockman, 356 Pa. 196, 51 A.2d 619 (1947).
59 Peek v. Peek, - Ill. App. 2d -, 268 N.E.2d 443 (1971); Forlenza v. For-
App. 2d 399, 256 N.E.2d 42 (1970).
lenza, 119 Ill.
60 RESTATEMENT (SECOND) OF TRUSTS § 58, comment a (1959); 1 A. SCOTT,
THE LAw oF TRUSTS § 58.1 (3d ed. 1967).
61 Connor v. Temm, 270 S.W.2d 541 (Mo. App. 1954).
that any presumption of donative intent arising from the execution of

a joint account agreement "disappears the moment evidence is pre-
sented negating the gift."62 Most cases take an intermediate posi-
tion which attaches great weight to the agreement but does not make
it conclusive. The joint account agreement "raises a rebuttable pre-
sumption" that the proceeds were intended to go to the survivor, and
the presumption can be rebutted only by "clear and convincing evi-
dence" of a different intent. 6"
The Uniform Probate Code adopts this test for both joint and
trust accounts; the form of the account is determinative "unless there
is clear and convincing evidence of a different intention at the time
the account is created." 4 However, no such proviso appears in
section 6-104(b) which deals with P.O.D. accounts. The official
comments to the Code provide no explanation for this distinction.
In the only reported case dealing with this problem, a man named
his brother as beneficiary of a P.O.D. account, but assured his wife
that "[tihat doesn't mean anything. . . . The money will be
yours." Nevertheless the account was awarded to the brother, ap-
parently on the theory that the written agreement with the savings
institution was conclusive. P.O.D. accounts do differ from joint ac-
counts, which are often created only for the convenience of having
the other party make withdrawals, whereas the P.O.D. payee cannot
make withdrawals during the depositor's lifetime. But the admis-
sibility of parol evidence to show the actual intent in a joint account
is not limited to cases in which the account was created for con-
venence.6 6 It seems unsound to make the written agreement con-
clusive for either account. Of course, cases could be decided more
quickly if all evidence outside the writing were barred.6 7 But this
consideration has not led courts to exclude extrinsic evidence where
62 Rutchick v. Salute, 288 Minn. 258, 263, 179 N.W.2d 607, 611 (1970).
63 Johnson v. Mielke, 49 Wis. 2d 60, 76-77, 181 N.W.2d 503, 511-12 (1970).
See also Hobbs v. Fenton, 25 Utah 2d 206, 209-10, 479 P.2d 472, 474 (1971)
(Crockett, J., concurring); Frey v. Wubbena, 26 Ill.
2d 62, 70-71, 185 N.E.2d 850,
855-56 (1962).
64 U.P.C. § 6-104(a) (joint account). Section 6-104(c), dealing with trust ac-
counts, uses the words "contrary intent," but apparently both sections mean the same
thing. The disconcerting practice of using different words to express (apparently)
identical meaning is not confined to the Probate Code. See Mellinkoff, The Lan-
guage of the Uniform Commercial Code, 77 YALE L.J. 185, 204-09 (1967).
65 Johnson v. Garellick, 118 Ill. App. 2d 80, 82, 254 N.E.2d 597, 598 (1969).
66 In re Estate of Gandolphi, - Ill. App. 2d -, 263 N.E.2d 516 (1970); Eden
v. Eden, 182 Neb. 768, 157 N.W.2d 543 (1968).
67 Havighurst, Gifts of Bank Deposits, 14 N.C.L. REV. 129, 159 (1936).
a will incorrectly represents the testator's actual wishes. If such

evidence is allowed in the case of wills, a fortiori it should be admit-
ted to show that a bank account agreement, which is usually exe-
cuted with much less care, does not reflect the depositor's true in-
tent.
The absence of a provision in the Uniform Probate Code for
extrinsic evidence of intent as to P.O.D. accounts may have little
practical effect. As Professor Richard Wellman, Chief Reporter for
the Code, has observed, "experience teaches that the courts will per-
mit evidence of fraud, undue influence, trust, and probably mistake
no matter what the statute says." 68 California once had a statute
which provided that a joint account "shall, in the absence of fraud
or undue influence, be conclusive evidence" of the depositor's intent
to pass the account to the survivor.6 9 Nevertheless the courts al-
lowed proof that the survivor was intended to share the proceeds
with another." A similar statute in New York was held not to bar
evidence that the account was set up solely for convenience. 71 The
"conclusive evidence" language has been eliminated from the New
York and California statutes, 2 but some other states still have similar
provisions which also have been accorded little respect by the
courts. 73
Joint accounts create difficulties because they are used for dif-
ferent purposes. The depositor may be using it as a will substitute,
or merely for the convenience of having the other party make with-
drawals for him. Sometimes the depositor makes his purpose known
to the bank. For example, in Matter of Creekmore74 a hospitalized
mother requested a power of attorney for her daughter in order to
enable her to pay bills. The mother's emissary was told
that the bank was opposed to accepting powers of attorney...
that they had no power of attorney forms available, and recom-
mended that the accounts be changed to joint accounts ....
This policy on the part of these savings banks did not concern
the welfare or purposes of Mrs. Creekmore, but was designed to
68 Wellman, The Joint and Survivor Account in Michigan-Progress Through

Confusion, 63 MIcH. L. REV. 629, 676 (1965).
69 Bank Act, § 15a, as amended, [1921] Stat. of Calif. 1367.
"t0 Jarkieh v. Badagliacco, 75 Cal. App. 2d 505, 170 P.2d 994 (1946).
71 Matter of Creekmore, 1 N.Y.2d 284, 135 N.E.2d 193 (1956).
72 N.Y. BANK. LAW § 675(b) (McKinney 1971); CAL,. FIN. CODE § 852 (West
1968).
73 Bauer v. Crummy, 56 N.J. 400, 267 A.2d 16 (1970).
74 1 N.Y.2d 284, 135 N.E.2d 193 (1956).
protect the banks against inadvertently cashing checks drawn

by the attorney-in-fact of a decedent .... These banks evi-
dently did not notice or care that the course of procedure which
they were recommending would materially alter 75the devolution
of these accounts upon Mrs. Creekmore's decease.
Mrs. Creekmore's actual intent was given effect after her death,
but only at the cost of proceedings in three courts, to which the
bank contributed nothing, so far as we are told. Fortunately, other
institutions are more careful in carrying out the wishes of their cus-
tomers, in providing power-of-attorney forms and in warning against
the dangers of using joint accounts for "convenience. ' 78 Surely in
a case as blatant as Matter of Creekmore the bank should be liable
for the trouble caused by its bad advice. But financial institutions
cannot be held to the same standard as lawyers, or charged with
responsibility for ascertaining and carrying out the unexpressed pur-77
poses of a depositor who requests a particular form of account.
However careful banks may be, undoubtedly cases will continue to
arise in which the form of account does not reflect the depositor's in-
tent, and parol evidence should be received, with caution, to correct
the error.
REVOCATION
It has long been settled that wills are revocable even though the
power to revoke is not expressly reserved. 78 As to will substitutes,
the rule is not so clear. The beneficiary of an insurance policy has
sometimes been held to have an indefeasible interest, but policies
today usually give the insured the right to change the beneficiary70
The regulations governing United States Savings Bonds in P.O.D.
form provide that the designated beneficiary cannot be changed or
eliminated without his consent, but this means very little, for the
regulations also provide that the owner can cash the bond "as though
75 Id. at 288, 135 N.E.2d at 194-95.

76 See "Talman tells savers how to choose the right kind of account ownership,"
an advertisement supplied to the author by Talman Federal Savings & Loan As-
sociation of Chicago. In fairness to New York banks, it must be added that one
bank did supply the power of attorney requested for Mrs. Creekmore.
77 Nor, of course, should the bank be liable if the depositor ignores its advice
and insists on an inappropriate form of account. Robinson v. Colebrook Guaranty
Savings Bank, 109 N.H. 382, 254 A.2d 837 (1969).
78 T. LITTLETON, TENURES § 168 (1903); 2 BLACKSTONE *502.
79 W. VANCE, HANDBOOK ON THE LAW OF INSURANCE §§ 106, 108 (3d ed. 1951).
In French law the designation of a beneficiary becomes irrevocable upon his
"acceptance." Law of July 13, 1930, art. 64, [1931] D.P. IV. 1, 33.
no beneficiary had been named."' 0 Statutes authorizing P.O.D. ac-

counts generally allow the depositor to change the beneficiary or
withdraw from the account."' Living trusts cannot be revoked un-
less the power to revoke is reserved, but this rule does not apply
to bank account trusts which are presumed to be revocable. 2
Property held in joint ownership has presented the greatest
problem. At common law if a husband and wife held lands as
tenants by the entirety, neither could defeat the other's right of sur-
vivorship.88 This rule has been applied to personal property held
jointly by spouses in Pennsylvania, 84 but in many other states today
a spouse's right of survivorship can be destroyed even in jointly held
land.85 At common law a joint tenancy between persons other than
spouses could be converted into tenancy in common by either tenant,
thereby destroying the other's right of survivorship but not his half
interest in the land. 88 As to modem joint bank accounts, the law
is unclear. Statutes often provide that the bank can safely pay the
funds on deposit to either party.87 Does this mean that in case of
conflict between the parties, the one who gets to the bank first is
entitled to the money? This is an unsatisfactory solution. Some
courts have held that any party who withdraws funds without the
other's consent must pay the other his share of the funds with-
drawn. 88 But probably the average person who deposits money in
a joint account either regards the account as a convenient device for
enabling the other to make withdrawals for him, or as a will substi-
tute. In either event, the depositor's expectations would be defeated
by denying him the right to withdraw all the funds, or by giving the
noncontributing party the right to withdraw any funds without the
80 31 C.F.R. § 315.65-.66 (1971).

81 ARK. STAT. § 67-1838(5) (1966 repl.); Omo REv. CODE § 2131.10 (Baldwin
1971); ILL. REV.STAT. Ch. 32, § 5770(c) (1971).
82 RPESTATEMENT (SECOND) OF TRUSTS § 330(2), comment a (1959). See also
ILL. REV. STAT. ch. 32, § 770(b) (1971); cf. N.Y. SrAT. ANN. § 17:9A-216(A)(1)
(West 1963).
83 2 BLACKSTONE *182; 2 ANMRICAN LAW OF PROPERTY § 6.6 (A.J. Casner ed.
1952).
84 Holmes Estate, 414 Pa. 403, 200 A.2d 745 (1964).
85 Hendrickson v. Minneapolis Federal Savings, 281 Minn. 462, 161 N.W.2d 688
(1968).
86 2 BLACKSTONE *185-86; 2 AMERICAN LAW OF PROPERTY § 6.2 (A.J. Casner ed.
1952).
87 ILL. REv. STAT. ch. 76, § 2(a) (1971); ARK. STAT. § 67-1838(1) (1966 repl.).
See also 31 C.F.R. § 315.60 (1971) (U.S. bonds in co-ownership form).
88 Estate of Kohn, 43 Wis. 2d 520, 168 N.W.2d 812 (1969); Kacirek v. Mangan,
489 P.2d 342 (Colo. App. 1971).
depositor's consent. Therefore, most courts ignore the theory that

the creation of a joint account transfers a "present interest" to the
other party, a theory which may be useful in explaining why joint
accounts are not "testamentary,""9 but which does not accord with
the average person's intent, or with the results usually reached by
courts in cases of this type. 90 Often the result is explained by say-
ing that the depositor "did not intend to create true joint tenancy
accounts," 91 or that the account was created "for convenience only." 92
This suggests that unless the presumption of an intent to create a
"true joint tenancy" when the account was created is rebutted, the
depositor cannot change his mind.93 It would seem more in ac-
cordance with popular understanding to hold, as is done with trust
accounts, that the depositor can treat the account as his own through-
out his life unless he manifests an intent to make an irrevocable gift
when creating it.94 This is the position taken by the Uniform Pro-
bate Code, which provides that "a joint account belongs, during the
lifetime of all parties, to the parties in proportion to the net contribu-
tions by each to the sums on deposit unless there is clear and con-
vincing evidence of a different intent." 95
If joint bank accounts, like other will substitutes, should be
revocable like wills, what formalities for revocation are appropriate?
Under the original Statute of Wills, a written will could be revoked
by oral declarations. 9 6 Today, however, statutes require either a
document executed with the formalities prescribed for wills or a
physical act, such as tearing up the will.9 7 On the other hand, the
Restatement of Trusts states that "[n]o particular formalities are
89 See note 18 supra.

90 Hines, Personal Property Joint Tenancies: More Law, Fact and Fancy, 54
MINN. L. Rav. 509, 533-34 (1970); Kepner, Five More Years of the Joint Bank
Account Muddle, 26 U. Cm. L. REv.376, 396-97 (1959).
91 Paterson v. Comastri, 39 Cal. 2d 66, 73, 244 P.2d 902, 906 (1952).
92 Koziol v. Harris, 82 Ill. App. 2d 472, 477, 226 N.E.2d 387, 390 (1967).
93 See Estate of Zengerle, - App. 2d -, 276 N.E.2d 128 (1971); DePasqua
v. Bergstedt, 355 Mass. 734, 247 N.E.2d 354 (1969).
94 Cf. Kinney v. Ewing, - N.M. -, 492 P.2d 636 (1972).
95 U.P.C. § 6-103(a). This provision has been criticized on the ground that it
will produce a "wave of litigation" because the respective contributions of the par-
ties may be unclear. Zartman, An Illinois Critique of the Uniform Probate Code,
1970 U. ILL. L.F. 413, 461-62. But it is hard to see how a rule, even if difficult
to apply in some cases, will produce more litigation than the absence of any rule at
all (as in some states), or a rule focusing on the difficult question of the depositor's
intent when the account was created.
96 Brook v. Warde, 73 Eng. Rep. 702 (K.B. 1572).
97 E.g., CAL.PROB. CODE § 74 (West 1956).
necessary to manifest" an intention to revoke a bank account trust."

However, courts generally reject claims that oral statements by a de-
cedent constitute a revocation on the ground that a "positive step
indicating a changed decision" is necessary. 99
The Uniform Probate Code provides that the form of an ac-
count "may be altered by a written order" to the bank which "must
be signed."'100 It seems incongruous that the Code requires a signed
writing to alter the form of the account but not to create it.1 1 A
gift of an account, accompanied by delivery of the passbook, is a
"positive step indicating a changed decision" and ought to be ef-
fective to pass the account to the donee rather than the designated
beneficiary, 102 just as a gift of property bequeathed in a will revokes
or adeems the bequest.' 03 But a delivery of United States Savings
Bonds has been held ineffective against the claim of a P.O.D. bene-
ficiary because of the Treasury regulations governing transfer of
bonds. 104
Often, the formalities prescribed by law for altering will sub-
stitutes are unimportant because the question is controlled by con-
tractual provisions dictated by the financial institution. The most
common source of litigation arises from attempts to revoke by will.
Certainly the execution of a will is a "positive step indicating a
changed decision. "105 In United States v. Pahmer,10 6 for example,
the insured's will referred to "the beastly doings and writings of my
hated ex-wife" who, he made clear, was not to receive the proceeds
of the National Service Life Insurance Policy of which she had for-
merly been named beneficiary. The wife nevertheless claimed the
proceeds, relying on a Veterans Administration regulation provid-
98 RESTATEMENT (SECOND) OF TRUSTS § 58, comment c (1959). See also

1 A. SCOTT, THE LAW OF TRusTS § 58.4, at 536 (3d ed. 1967).
99 Conry v. Maloney, 5 N.J. 590, 593, 76 A.2d 899, 901 (1950). See also
Matter of Deneff, 44 Misc. 2d 947, 255 N.Y.S.2d 347 (Sur. Ct. 1964); Wellman,
The Joint and Survivor Account in Michigan-ProgressThrough Confusion, 63
MICH. L. REv. 629, 658 (1965).
100 U.P.C. § 6-105.
101 If A opens an account and orally instructs the bank to pay on his death to B,
and later tells the bank to pay the funds on his death to C, presumably under the
Code B would be entitled to the funds when A died.
102 Wellman, supra note 99, at 659.
103 ArKiNsoN § 85, at 433; C. Cirv. art. 1038.
104 Matter of Hagar, 181 Misc. 431, 45 N.Y.S.2d 468 (Sur. Ct. 1943). Contra,
Neglia Estate, 403 Pa. 464, 170 A.2d 357 (1961).
105 Sometimes, however, the will is ambiguous as to the intent to revoke. See
Matter of Krycun, 24 N.Y.2d 710, 249 N.E.2d 753 (1969).
100 238 F.2d 431 (2d Cir. 1956).
ing that "a beneficiary designation, but not a change of beneficiary,

may be made by last will.' 1 0 7 The court rejected her claim, brushing
"aside all legal technicalities in order to effectuate the manifest in-
tention of the insured."' 0 8 Most courts, however, refuse to give ef-
fect to an attempted change of beneficiary by will, because the will
does not comply with the procedure for changes prescribed by the
terms of the policy.' 0 9 Similarly it has been held that the designa-
tion of a P.O.D. beneficiary of United States Savings Bonds" 0 or of
a bank account"' cannot be altered by will. Nor can a will change
a joint account."' Although the Restatement of Trusts states that a
will can revoke a bank account trust," 3 the terms of1 the4
trust agree-
ment may be construed to preclude revocation by will.
Thus Uniform Probate Code section 6-104(e), which prohibits
changing joint, trust, or P.O.D. accounts by will," 5 is largely de-
claratory of existing law. But if a will can be revoked by a later
will, why can't a will substitute? What interest is served by this
frustration of the decedent's intent? Of course, if an insurer or bank
pays before it receives notice of a decedent's will, it ought to be pro-
tected. The Code elsewhere provides protection for such payments
made without notice of an adverse claim.'1 6 But often the institu-
tion has notice of a claim under a will, interpleads the claimants and
is indifferent as to which one prevails."17 Even when the institution
insists that it should pay in disregard of the decedent's will, it seems
to be protecting no legitimate interest." s It is sometimes argued
107 Id. at 433.

108 Id.
109 Cook v. Cook, 17 Cal. 2d 639, 111 P.2d 322 (1941); Suga v. Suga, 35 Ill.
App. 2d 355, 182 N.E.2d 922 (1962); Wannamaker v. Stroman, 167 S.C. 484, 166
S.E. 621 (1932).
110 Davies v. Beach, 74 Cal. App. 2d 304, 168 P.2d 452 (1946).
111 Estate of Schwendeman v. State Savings & Loan Ass'n, 112 Ill. App. 2d 273,
251 N.E.2d 99 (1969).
112 Re Aylward, [1955] 5 D.L.R. 753; In re Estate of Anderson, 69 I. App. 2d
352, 217 N.E.2d 444 (1966). Joint tenancies in land cannot be severed by will.
2 AMERICAN LAW OF PROPERTY § 6.2 (A.J. Casner ed. 1952); 2 BLACKSTONE *185-
86; T. L=rrLETON, TENURES § 287 (1903).
13 RESTATEMENT (SECOND) OF TRUSTS § 58, comment c (1959). See also
1 A. SCOTT, THE LAw OF TRUSTS § 58.4, at 537 (3d ed. 1967).
114 In re Estate of Anderson, 69 Ill. App. 2d 352, 217 N.E.2d 444 (1966).
115 The Code on this point does not accord with the published views of the Chief
Reporter. See Wellman, supra note 99, at 659.
116 U.P.C. § 6-112.
"17 See Annot., 25 A.L.R. 2d 999, 1004 (1952).
118 See Lyles v. Teachers Retirement Board, 219 Cal. App. 2d 523, 33 Cal. Rptr.
328 (Ct. App. 1963).
that the public interest in having proceeds paid promptly after death
requires that any will be ignored so that there be no uncertainty as to
the beneficiary." 9 However, no certainty is in fact achieved by
barring changes in bank accounts by will, since courts sometimes do
give effect to the depositor's will on the theory that the account was
created only for convenience and the will itself is evidence of this.' 2 0
Therefore, unless the form of the account is held conclusive of the
depositor's intent, a position generally rejected by the courts and
the Code, 121 the beneficiary designated in the account may not be
entitled to the funds. Since this is true, it seems better to treat the
decedent's final intent manifested in his will as controlling.
CHANGE OF CIRCUMSTANCES
Sometimes after a will is executed, a change occurs in the testa-

tor's circumstances which might be expected to change his intentions
but he neglects to alter his will. In order to carry out the testator's
probable intent, statutes often provide that the change in circum-
stances revokes or alters any previous will unless the will provides
otherwise. For example, in many states a testator's marriage revokes
prior wills.' 22 These statutes refer only to wills. Arguably they
should be applied by analogy to will substitutes when, for example, a
man marries after opening a joint account or after naming an insur-
ance beneficiary, but no court seems to have done this.' 3
In many states a divorce revokes all provisions for the testator's
spouse appearing in a prior wil. 24 An attempt to apply such a stat-
ute to the designation of the decedent's ex-wife as beneficiary under
a pension plan has been rejected.' 25 A Michigan statute provides
that a divorce decree terminates a wife's rights in an insurance pol-
"'D Wannamaker v. Stroman, 167 S.C. 484, 491, 166 S.E. 621, 623 (1932).
120 In re Estate of Duiguid, 24 Ohio St. 2d 137, 265 N.E.2d 287 (1970); In re
Estate of Posey, 89 N.J. Super. 293, 214 A.2d 713 (Union County Ct. 1965), affd
per curiam, 92 N.J. Super. 259, 223 A.2d 38 (App. Div. 1966). But cf. DePasqua
v. Bergstedt, 355 Mass. 734, 247 N.E.2d 354 (1969).
121 See notes 63-64 supra.
122 COLO. REv. STAT. § 153-5-3 (1963); cf. CAL. PROB. CODE § 70 (West
1956); U.P.C. § 2-301.
123 For cases in which the factual situation was presented but the argument was
not made see Armstrong v. Daniel, 88 Ill. App. 2d 31, 232 N.E.2d 218 (1967);
Tierney v. United States, 315 F. Supp. 1073 (D. Mass. 1970).
124 U.P.C. § 2-508; Rees, American Wills Statutes: 11, 46 VA. L. REv. 856, 885-
86 (1960).
125 Rogers v. Rogers, 152 So. 2d 183 (Fla. App. 1963).
icy, 12 6 but in the absence of such a statute, courts generally award

insurance proceeds to the former spouse.' 2 7 The Michigan statute
has been held inapplicable to benefits under a profit sharing plan. 2 '
As to land jointly owned, a divorce decree terminates the right of
survivorship, 12 9 but it is not clear that this rule applies to joint bank
accounts.' 30 Property rights following a divorce are usually con-
trolled by an agreement which may bar the former spouse's claim,
but in construing such agreements courts are remarkably liberal to-
ward divorcees.' 1
If a child is born to the testator after a will is executed, he can
take a share of the testator's estate under many statutes unless the
will manifests an intent to disinherit him.' 3 2 Such a statute has been
applied by analogy to a child born after the purchase of bonds in
P.O.D. form on the ground that they "are substitutes for and have
the same effect as testaments" and should therefore be governed by
the same provisions.1 33 On the other hand, a similar statute has
134
been held inapplicable to a gift causa mortis.
At common law if a legatee predeceases the testator the legacy
lapses.' 3 5 Whether a condition of survivorship will be implied in a
will substitute is not clear. In a revocable living trust, a remainder
following the death of the settlor has been construed as vested when
the remainderman predeceased the settlor,13 6 but in bank account
trusts a condition of survivorship is implied, 137 as it is in joint and
126 MIcH. STAT. ANN. § 25.131 (Callaghan 1957).
127 Harris v. Harris, - N.M. -, 493 P.2d 407 (1972); Modarelli v. Midland
Mut. Ins. Co., 10 Ohio App. 2d 115, 226 N.E.2d 137 (1967); W. VANCE, HANDBOOK
ON THE LAW OF INSURANCE § 116 (3d ed. 1951).
128 Daugherty v. Wickes Corp., 9 Mich. App. 305, 156 N.W.2d 581 (1967).
129 2 AMERICAN LAW OF PROPERTY § 6.6 (A.J. Casner ed. 1952); CONN. GEN.
STAT. ANN. § 47-14g (Boston 1960). But cf. Witzel v. Witzel, 386 P.2d 103 (Wyo.
1963).
130 VA. CODE ANN. § 6.1-73 (1966 repl.) so provides, but only if a copy of the
divorce decree is delivered to the bank.
131 Mullenax v. National Reserve Life Ins. Co., 485 P.2d 137 (Colo. App. 1971);
Wolf v. Wolf, 259 N.E.2d 93 (Ind. App. 1970).
132 For the variations in such statutes see Rees, American Wills Statutes: 1I,
46 VA. L. REV. 856, 894-97 (1960).
133 Winsberg v. Winsberg, 220 La. 398, 406, 56 So. 2d 730, 732 (1952).
134 McCoy v. Shawnee Building & Loan Ass'n, 122 Kan. 38, 251 P. 194 (1926).
Contra, Bloomer v. Bloomer, 2 Bradf. (N.Y.) 339 (Sur. CL 1853).
135 2 BLACKSTONE *513; Farmers & Merchants State Bank v. Feltis, 276 N.E.2d
204 (Ind. App. 1971). See also C. Civ. art. 1039.
136 First Nat'l Bank v. Tenney, 165 Ohio St. 513, 138 N.E.2d 15 (1956).
137 RESTATEMENT (SEcOND) OF TRUSTS § 58, comment c (1959). Statutes often
provide the same result. ILL. REV. STAT. ch. 32, § 770(b)(3) (1971); N.J. STAT.
ANN. § 17:9A-216(A) (2) (West 1963); U.P.C. § 6-104(c).
P.O.D. accounts and bonds. 3 ' Cases are divided as to whether

insurance proceeds are to be paid to the estate of a beneficiary who
predeceases the insured, but more recent cases, and modem poli-
cies, generally require that the beneficiary survive. 3 9
The Uniform Probate Code provides that "[a] devisee who does
not survive the testator by 120 hours is treated as if he prede-
ceased the testator" unless the will otherwise provides. 140 There is
no comparable provision as to multiple-party accounts. Therefore, a
devisee who survives a testator by a few minutes would not take
under a will, but apparently would succeed to a joint, trust, 141
or
P.O.D. bank account of which he was designated beneficiary.
In the case of wills, an anti-lapse statute often provides a sub-
stitutional gift to the descendants of a legatee who predeceases the
testator. 142 Such statutes have been applied by analogy to pass in-
surance proceeds or assets of a revocable trust to the descendants of
a beneficiary who died before the insured or settlor, 1 43 but authority
1 44
to this effect is scant.
It is surprising that courts so rarely apply statutes designed to
carry out a testator's probable intent in changed circumstances to
comparable problems arising from will substitutes. For example, if
we presume the average testator wishes to have the descendants of a
deceased legatee succeed to his interest, why is it not also assumed
that the average creator of a P.O.D. account desires a similar substi-
tution should the beneficiary predecease him? Perhaps statutory pro-
138 U.P.C. § 6-104; N.J. STAT. ANN. § 17:9A-217(c) (West 1963); ARK. STAT.
§ 67-1838(5) (a) (1966); 31 C.F.R. H9 315.62, .70 (1971).
139 Wilson v. Perdue, 16 Mich. App. 80, 167 N.W.2d 851 (1969); W. VANCE,
HANDBOOK ON THE LAW OF INSURANCE § 115 (3d ed. 1951); ef. Law of July 13,
1930, art. 64, al. 5, [19311 D.P. IV. 1, 35.
140 U.P.C. § 2-601.
141 If the order of deaths could not be established, the beneficiary would ap-
parently take nothing under a trust or P.O.D. account, but a joint account would be
divided equally between the two decedents under the Uniform Simultaneous Death
Act, §§ 1, 3.
142 See U.P.C. § 2-605; Rees, American Wills Statutes: 11, 46 VA. L. REV. 856,
899-903 (1960).
143 Supreme Council Catholic Knights v. Densford, 21 Ky. L. Rptr. 1574, 56
S.W. 172 (Ky. Ct. App. 1900); In re Estate of Button, - Wash. 2d -, 490 P.2d 731
(1971); cf. Kellner v. First Trust & Savings, 40 Ill. App. 2d 371, 189 N.E.2d 766
(1963).
144 The form of Trust Agreement used by Talman Federal Savings of Chicago
provides for a substitutional gift to the surviving descendants of a deceased bene-
ficiary, but no such provision appears in the form for a P.O.D. Account.
visions dealing with wills do not cover will substitutes only because
of legislative oversight. On the other hand, perhaps such provisions
are inappropriate for will substitutes because the creator is less likely
to have forgotten a will substitute than a will, and therefore would
have altered the existing arrangement after the change in circum-
stances had he wanted to do so.' 45 One cannot be sure what the
typical testator would desire, hence the differing rules in different
states on the subject.14 6 The possibility that a particular rule does
not represent the testator's actual intent is usually recognized by a
47
proviso that the rule is not to apply if the will provides otherwise.'
It is unrealistic to expect that the creator of a will substitute, who
usually signs a printed form and pays little attention to its contents,
would actually make such a provision in anticipation of a change in
circumstances.
CREDITORS
One of the reasons land was put in use in the later Middle Ages
was to escape creditors. 4 ' A statute in 1503 recited that many
persons had thereby been defrauded of their debts and provided that
lands held in use should be subject to execution on behalf of cred-
itors of the cestui que use.'49 Even after this statute, creditors were
unprotected if the debtor died. One of the "myscheiffes" charged
to uses in the early 16th century was that:
If a man hauying never so much landes In use be bound and
his heres In an obligacyon and dye, hauying nott goodes suf-
fecyent to satysfye the obligacyon, his heir, tho he haue ye use
of a thousand pounde land, shall nott be chargyd with no parte
of the sayd obligacyon, and yett if ye land had dissendyd he
should haue made Satysfaccion For ye seyd dett. 150
However, nothing was made of this point in the preamble to
the Statute of Uses, and in the Statute of Wills the payment of debts
was mentioned as a typical purpose for making wills.--' It appears,
therefore, that uses and wills were commonly employed to ensure
145 Wellman, supra note 99, at 661.

146 See Rees, supra note 142, at 880-86.
147 See U.P.C. §§ 2-301, -302, -508, -603.
148 C. SAINT GERMAiN, DocToR ANDiSTUDENT 168 (W. Muchall ed. 1874).
149 19 Hen. 7, c. 15 (1503).
150 Quoted in 4 W. HOLDSWORTH, A HISTORY OF ENGLISH LAW 578 (1924).
151 32 Hen. 8, c. 1 (1540). However, if a will made no provision for payment
of debts, devisees were not subject to suit by creditors until 1691. 3 & 4 Win. &
Mary, c. 14 (1691).
rather than to evade the payment of creditors, by charging lands

52
with informal debts.'
Today it might be objected that if a man dies with property in
the form of insurance or joint tenancy or the like, his successor will
not be charged with his debts even though had the property passed
by will or intestacy it would be subject to claims of the decedent's
creditors. The paucity of cases on the subject suggests that instances
of injustice are rare, but they do occur.15 3
In Roman law gifts causa mortis, like legacies in a will, were
subject to the decedent's debts. 154 The same rule prevails in Anglo-
American law,' 5 5 but other will substitutes are treated differently.
Insurance proceeds are generally exempted by statute from claims
of the insured's creditors. 56 When a joint tenant dies, his creditors
cannot reach the property in the hands of the survivor. 5 7 When the
settlor of a revocable living trust dies, the property is no longer sub-
ject to his debts,' 58 although the rule is otherwise for bank account
trusts. 59 United States bonds in P.O.D. form are also exempt from
claims of the purchaser's creditors after he dies.'1
The injustice of having property pass at death to a debtor's des-
ignated beneficiary while his debts are unpaid can be avoided if an
intent to defraud creditors is found. 1 One court has held that if
a decedent's probate estate is insolvent, will substitutes are ipso facto
fraudulent as to creditors. 1 2 In a few states statutes give creditors
protection. In Iowa and under the Uniform Probate Code, P.O.D.
152 At this time creditors without a deed were unable to sue the debtor's heirs or
executors. McGovern, Contract in Medieval England: Wager of Law and the Effect
of Death, 54 IowA L. REV. 19, 41-42 (1968).
153 See notes 157-58 & 160 infra.
254 DiGEsT 35.2.66.1; 39.6.17.
155 ATKiNSON § 116, at 639-40; 2 BLACKSTONE *514.
156 E.g., N.Y. INS. LAW § 166 (McKinney 1966). The same rule prevails in
France. Law of July 13, 1930, art. 69, [1931] D.P. IV. 1, 36.
157 DeForge v. Patrick, 162 Neb. 568, 76 N.W.2d 733 (1956); Matter of Walsh,
23 Misc. 2d 873, 200 N.Y.S.2d 159 (Sur. Ct. 1960).
158 Schofield v. Cleveland Trust Co., 135 Ohio St. 328, 21 N.E.2d 119 (1939).
159 RESTATEMENT (SECOND) OF TRUSTS § 58, comment d (1959); 1 A. SCOTT,
THE LAW OF TRusTs § 58.5, at 543 (3d ed. 1967.) See also U.P.C. § 6-107.
160 Application of Laundree, 277 App. Div. 994, 100 N.Y.S.2d 145 (1950); In
re Briley Estate, 155 Fla. 798, 21 So. 2d 595 (1945); Reynolds v. Danko, 134 N.J.
Eq. 560, 36 A.2d 420 (Ch. 1944).
161 Katz v. Driscoll, 86 Cal. App. 2d 313, 194 P.2d 822 (1948); N.Y. INS.
LAw § 166(4) (McKinney 1966). In French law, creditors can reach insurance
premiums which are "manifestly excessive having regard to the resources" of the
insured. Law of July 13, 1930, art. 68-69, [19311 D.P. IV. 1, 36.
162 Matter of Granwell, 20 N.Y.2d 91, 228 N.E.2d 779 (1967).
accounts are subject to the decedent's debts. 6 ' The Code and a
few statutes also subject property passing to a surviving joint tenant
to claims of the decedent's creditors. 16 4 It can be argued that only
half of a joint account should be subject to claims at death, the
other half having been given when the account was created. 6 5 How-
ever, this argument seems unpersuasive, since the theory that a pres-
ent interest is transferred when a joint tenancy is created is ignored
more often than applied.' 66 Creditors of a party who has not con-
tributed to a joint account are usually not allowed to treat it as an
asset of their debtor while both parties to the account are alive, 1 7 or
if the noncontributing party predeceases the depositor. 6 8 Thus the
noncontributing party is treated like a legatee under a will.
Assuming that justice demands that will substitutes be treated as
wills in regard to creditors' rights, problems still remain. Is distri-
bution to beneficiaries to be postponed until claims are ascertained
and paid, as in the case of property passing by will? Under the Iowa
statute, a savings and loan association cannot safely pay the benefi-
ciary of a P.O.D. account until six months after the depositor dies. 169
This rule defeats one of the principal objectives of will substitutes-
avoidance of the delay of administration. Therefore, the Uniform
Probate Code and other statutory schemes for protecting creditors
contemplate immediate distribution of funds to the beneficiary who
is then subject to suit. 170 This procedure presents problems. If the
beneficiary is insolvent, should not creditors of the decedent be pre-
ferred as to the property passing by will substitute to the benefi-
ciary's own creditors?' 7 ' If there are several beneficiaries, should
they not contribute proportionately to the payment of claims? 1 72 If
163 IowA CODE ANN. § 534.11(8) (West 1970); U.P.C. § 6-107.

164 NEB. REv. STAT. § 30-624 (1964); N.C. GEN. STAT. § 41-2.1(b)(3) (Michie
1966); S.D. CoMP. L. § 30-21A-1 (Smith Supp. 1971).
165 Matter of Granwell, 20 N.Y.2d 91, 95, 228 N.E.2d 779, 781 (1967). See
also N.C. GEN. STAT. § 41-2.1(b) (3) (Michie 1966).
166 See notes 90 supra and 185 infra.
167 Greenwood v. Beeson, 253 Ore. 318, 454 P.2d 633 (1969); Union Properties,
Inc. v. Cleveland Trust Co., 152 Ohio St. 430, 89 N.E.2d 638 (1949); U.P.C. §
6-103(a). But cf. Park Enterprises v. Trach, 233 Minn. 467, 47 N.W.2d 194 (1951).
168 S.D. CoMP. L. § 30-21A-4 (Smith Supp. 1971); U.P.C. § 6-107; NEB. REV.
STAT. § 30-624(2) (1964). But cf. N.C. GEN. STAT. § 41-2.1(b)(3) (Michie 1966).
169 IowA CoDE ANN. § 534.11(8) (West 1970).
170 U.P.C. § 6-107; NEB. REV. STAT. § 30-624 (1964); S.D. CoMP. L. § 30-21A-2
(Smith Supp. 1971).

171 See C. CIV. art. 878, 2103, al. 6; DiGEST 42.6.1.1.
172 S.D. COMP. L. § 30-21A-5 (Smith Supp. 1971); Zartman, An Illinois Critique
of the Uniform Probate Code, 1970 U. ILL. L.F. 413, 461; cf. C. Civ. art. 870.
a beneficiary spends the money before he learns of the claims of the

decedent's creditors, should he be forced to pay? However, the fore-
going problems are not likely to arise often, particularly if creditors
can reach non-probate assets only as a last resort. 17 3 The same dif-
ficulties can occur under the civil law system of allowing a decedent's
creditors to sue his heirs, a system which seems to work satisfac-
torily.1 74 In fact, the widespread use of transfers designed to avoid
administration is moving the common law in the direction of the civil
law.
TAxEs
One of the most frequent reasons for uses in medieval England
was to evade the feudal incidents such as relief, wardship and mar-
riage.175 Maitland has suggested that these evasions were counte-
nanced by the law because "feudalism had ceased to be useful; it
had become a system of capricious exactions-it was very natural
and not dishonorable that men should attempt to free themselves
from the burdens of reliefs and wardships and marriages ... .
Nevertheless these exactions were an important source of revenue
to lords, particularly the King, and statutes were enacted to preserve
the lord's right to wardship and relief for lands held in use when
the cestui que use died without a will. 7 7 No protection was given
to lords if the cestui que use died with a will until the advent of the
Statute of Uses, which was designed to prohibit wills completely on
the grounds, inter alia, that "Lordes have lost theyr wardes, mariages,
relyefes" and other feudal incidents.' 7 Protection of feudal revenues
could not be reconciled with the power of testation because ward-
ship, the most valuable of the feudal incidents, 1 79 accrued only when
Conversely if assets are insufficient to pay all claims in full, should not the creditors
be paid pro-rata? This can be assured if the right to sue is conferred on the de-
edent's personal representative rather than on individual creditors. See Hines,
PersonalProperty Joint Tenancies: More Law, Fact and Fancy, 59 MnqN. L. REv.
509, 567 (1970); U.P.C. § 6-107.
173 See U.P.C. § 6-107; S.D. ComP. L. §§ 30-21A-2, -3 (Smith Supp. 1971).
174 Executors are not unknown in France, but are rarely used. See I. BRassAUD,
A HISTORY OF FRENCH PRIvATE LAw § 491 (1912).
175 C. SAINT GERMAn, DOCTOR AND STUDENT 168 (W. Muchall ed. 1874). Uses
were not, however, the only device used for avoiding feudal incidents. See J.BEAN,
ThE DECLINE OF ENGLISH FEuDALISM 86-88, 295-96 (1968); Statute of Marlborough,
52 Hen. 3, c. 6 (1267).
176 F. MArLAND, EQurrY 29 (rev. ed. 1936).
177 Statutes, 4 Hen. 7, c. 17 (1488); 19 Hen. 7, c. 15, § 2 (1503).
178 Statute of Uses, 27 Hen. 8, c. 10 (1535).
179 BEAN, supra note 175, at 15.
a tenant's land descended to a minor child, an event which could be

avoided so long as wills were allowed. Therefore, when in 1540
wills were again permitted, limitations were imposed on devises of
land held by knight-service 8 ° in order to preserve part of the feudal
revenues.
Today, property passing by will is subject to death taxes, the
modem counterpart of feudal relief. Will substitutes do not usually
avoid such taxes. Insurance proceeds, for example, though free of
creditors' claims, do not normally escape taxes.' 8 Although a
revocable trust is sometimes said to transfer a present interest to the
beneficiary so that the formalities prescribed for a will are unneces-
sary,18 2 it is not treated as a gift for tax purposes but is taxable when
the settlor dies. 8 3 Bonds and presumably bank accounts in P.O.D.
8 4
form are also subject to tax when the purchaser or depositor dies.
Joint tenancy raises more difficult problems. The theory that
a present interest is transferred is often ignored; thus, no gift tax
is normally payable when a joint tenancy is created,' 8 5 and the prop-
erty is included in the taxable estate of the contributor when he
dies.'8 " But in several states property in joint tenancy either escapes
inheritance tax completely or only a portion-one half in the typical
case of two joint tenants-is deemed to pass at death.'8 7 Moreover,
even federal law sometimes adopts the notion that the other party
receives an interest when a joint tenancy is created. For example,
it has been held that when funds are withdrawn from a joint bank
account on the eve of the depositor's death, there is no gift in con-
180 Statute of Wills, 32 Hen. 8, c. 1 (1540). No such restrictions were placed on

land held in socage tenure because it was not subject to feudal wardship anyway.
2 BLACKSTONE *87-88.
181 INT. REv. CODE OF 1954, § 2042; Admin. de 1'enregistrement v. Allais, [1942]
D.A. Jur. 127 (Cass. civ.). In some states, however, insurance is exempt from in-
heritance taxes. 4 CCH INH. EST. & GIFT TAX REP. I 1580D.
182 Farkas v. Williams, 5 Ill. 2d 417, 421, 125 N.E.2d 600, 602-03 (1955); In re
Estate of Montgomery, - Ill. App. 2d -, 277 N.E.2d 739, 741 (1972).
183 A. CASNER, ESTATE PLANNING 127, 131 (3d ed. 1961); Wasserman v. Com-
missioner, 139 F.2d 778 (Ist Cir. 1944).
184 The only reported cases so far involve P.O.D. bonds. In re Estate of LeDuc,
5 Mich. App. 390, 146 N.W.2d 711 (1966); Mitchell v. Carson, 186 Tenn. 228,
209 S.W.2d 20 (1948).
185 Department of Taxation v. Berry, 258 Wis. 544, 46 N.W.2d 757 (1951);
INT. REV. CODE OF 1954, § 2515; Rev. Rul. 69-148, 1969-1 CuM. BULL. 226.
186 INT. REV. CODE OF 1954, § 2040. It may be possible, however, to show that
an irrevocable gift was made when the joint tenancy was created. Estate of Chrysler
v. Commissioner, 361 F.2d 508 (2d Cir. 1966).
187 4 CCH INH. EST. & GIFT TAX REP. 1 1570A, 1570B.
templation of death because the "decedent's motives and intent must

be viewed as of" the date when the account was opened.' 8 8
From the viewpoint of the estate planner, therefore, a joint bank
account may offer certain tax advantages over a trust or P.O.D. ac-
count. However, there are also tax disadvantages arising from the
notion that the noncontributing party to a joint account has a pres-
ent interest. In some states a taxable transfer will occur if the non-
contributing party predeceases the depositor, even though the latter
may consider that the property always belonged to him.' 89 Also,
if a surviving joint tenant purports to disclaim his right to the prop-
erty, he may be deemed to have made a taxable gift. 190 The Uniform
Probate Code permits an heir or a "beneficiary under a testamentary
instrument' to renounce his right to succeed to property,' 9 ' but ap-
parently this would not cover disclaimer'by a surviving joint ten-
ant.192 Since for most purposes the Code equates joint accounts
with wills, the failure to provide for similar treatment of disclaimers
may have been an oversight.
THE SURvrv NG SPOUSE

Another reason for the creation of uses in medieval England
was to "put away" claims to dower and curtesy by the surviving
spouse. 193 One of the abuses recited in the preamble to the Statute
of Uses was that "men maryed have lost theyr tenancies by the
curtesies, Women theyr Dowers.' 1 94 However, husbands rarely resort-
ed to uses in order to leave their wives penniless. Often the will of a
cestui que use gave his widow more generous protection than dower
provided. 19 5 The Statute of Wills of 1540 refers to "the advauncement
of [the testator's] wife" as a reason for making a will. 19 6 Men
188 Harley Wilson, 56 T.C. 579 (1971). For another situation in which a joint
tenant is treated as having a present interest for federal tax purposes see Rev. Rul.
69-577, 1969-2 Cum. BuLL. 173.
189 Graham Estate, 358 Pa. 383, 57 A.2d 853 (1948); Connelly v. Kellogg, 136
Conn. 33, 68 A.2d 170 (1949); McKimmey v. District of Columbia, 300 F.2d 724
(D.C. Cir. 1962).
190 Krakoff v. United States, 439 F.2d 1023 (6th Cir. 1971). But cf. Hershey v.
Bowers, 7 Ohio St. 2d 4, 218 N.E.2d 455 (1966); Bradley v. State, 100 N.H. 232,
123 A.2d 148 (1956).
191 U.P.C. § 2-801.
192 Cf. Zartman, An Illinois Critique of the Uniform Probate Code, 1970 U.
ILL. L.F. 413, 419.
193 C. SAINT GERMAIN, DocToE AmD STuDENT 168 (W. Muchall ed. 1874).
'94 Statute of Uses, 27 Hen. 8, c. 10 (1535).
195 J.BEAN, TH DECLINE OF ENGLISH FEUDALISM 137 (1968).
190 Statute of Wills, 32 Hen. 8, c. 1, § 2 (1540).
wished to "put away" dower, because dower was "a great clog to
alienations, and was otherwise inconvenient to families," but at the
same time they would provide for the widow's support by a settle-
ment at the time of marriage. 19 7 The Statute of Uses itself recog-
nized the reasonableness of this practice by providing that such a
settlement for the wife would bar her claim to dower. 198
Modem will substitutes, like medieval uses, have been employed
to defeat claims by widows to a statutory forced share of the hus-
band's estate.199 Although the practice is not widespread, attacks
by widows on will substitutes appear more frequently in reported
cases than do claims by the decedent's creditors. Generally speak-
ing, widows fare rather badly in the courts. In Roman law, gifts
causa mortis, like legacies, were subject to reduction by the donor's
heirs. 20 0 American law, however, has not usually treated will sub-
stitutes like wills with respect to widows' rights.
Perhaps one reason that the courts are reluctant to protect wid-
ows is that such a decision may simply lead to a flight of capital into
other jurisdictions which are willing to uphold such arrangements. 20 1
Resort to foreign jurisdictions would be fruitless if the law of the
decedent's domicile controlled, as it does in wills of personal prop-
erty.20 2 But for will substitutes, like living trusts and joint bank
accounts, the law of the state of the trustee or bank may be applied
rather than the law of the domicile. 20 3 Even if the state of domicile
chooses to apply its own law, it may be unable to obtain jurisdiction
over the foreign bank to which the decedent's20 4property has been
transferred, so its judgment may have little effect.
A second possible reason why courts tend to wink at evasions
of forced heirship statutes is that such statutes are considered to be
unfair.
197 2 BLACKSTONE *136-37.
198 Statute of Uses, 27 Hen. 8, c. 10, § 4 (1535). Compare U.P.C. § 2-204
which makes it possible for the spouse to be barred by waiver even after the
marriage takes place.
199 Most forced heirship statutes apply to widowers as well as widows, but nearly
all the reported cases involve widows.
200 CODE 8.57.2.
201 See W. MACDONALD, FRAuD ON THE WiDow's SHARE 87 (1960) [hereinafter
cited as MACDONALD].
202 Matter of Clark, 21 N.Y.2d 478, 236 N.E.2d 152 (1968).
203 Rose v. St. Louis Union Trust Co., 43 II. 2d 312, 253 N.E.2d 417 (1969);
National Shawmut Bank v. Cumming, 325 Mass. 457, 91 N.E.2d 337 (1950);
Annot., 25 A.L.R.2d 1240-41 (1952). Contra,U.P.C. § 2-201.
204 See Hanson v. Denckla, 357 U.S. 235 (1958).
It is possible that much of the evasion litigation is occa-

sioned by the arbitrary, mechanical operation of the forced share
statutes . . . . It is immaterial in the statutes that the widow
has independent means, or that she has been adequately pro-
vided for by the decedent's inter vivos transfers; and it is only
in limited instances that her share will be barred by 'miscon-
duct' ...
Consider a typical 'evasion' situation. The husband has
children by a prior marriage. ... In all probability the hus-
band will wish (a) to provide his widow with sufficient income
to continue her present standard of living and (b) to leave the
principal to his own children. Naturally he will not wish to
leave the principal to the widow, since at her death it would
in all likelihood go to her children or relatives. And, naturally,
he will carry out his plan by inter vivos disposition; otherwise
the widow may elect a statutory share .... 'Evasion' here
is laudable, not reprehensible. 0 5
Circumstances that are ignored by the statutes may make the
widow's claim seem inequitable. Sometimes the marriage occurred
only a short time before the husband died. Under a community
property system the widow would be entitled to little or nothing under
these circumstances. 06 But under most American statutes the wid-
ow's claim is not affected by the length of the marriage. A man with
a very large estate may not unreasonably think that something less
than a third or half of that will provide adequate support for his
widow. In England the widow is entitled only to a "reasonable pro-
vision" for her maintenance, 0 7 but American statutes typically give
the surviving spouse a fixed fraction regardless of the size of the
estate.20 8 A husband may feel that his widow's share should be put
in trust for her own protection because she is improvident. Under
the German Civil Code a decedent can direct that an executor man-
age the portion which must be left to a descendant.2 0 9 In American
law, however, a prodigal widow 210
can demand that her share be dis-
tributed to her free of trust.
Many courts in dealing with attacks on will substitutes by wid-
ows seem to be influenced, sometimes avowedly, by "equitable" fac-
tors in the particular case. Did the husband make provision for the
205 MACDONALD 17-18.

206 E.g., C. Cirv. art. 1401, 1405.
207 Intestates' Estates Act, 1952, 15 & 16 Geo. 6 & 1 Eliz. 2, § 1(1), sched. 4.
208 E.g., ILL. REV. STAT. ch. 3, § 16 (1971); U.P.C. § 2-201(a).
209 BDRGERLICHES GESETZBUCa § 2338 (DTV 1970) [hereinafter cited as BGB].
210 MACDONALD 23. But cf. N.Y.E.P.T.L § 5-1.1(c) (1) (D) (McKinney 1967).
wife outside the will, by inter vivos gift or will substitute? The civil
law takes other such gifts into account,2 1 ' and so do a few American
statutes, 212 but most do not.213 Nevertheless, in cases of unsuccessful
attacks by widows on will substitutes, courts often refer to the fact
that the husband had made other provisions for the widow.21 4 Does
the widow have independent means from other sources? This is to
be considered under the English legislation,2 15 but not under Ameri-
can statutes. 216 Nevertheless American courts frequently give weight
to the presence or absence of need on the part of a widow who
attacks a non-probate transfer.211 Has the claiming widow been guilty
of misconduct toward the decedent? This may justify disinheritance
under some statutes in some situations, 218 but many statutes make
no provision for this. Nevertheless, it is often a factor in judicial
decisions involving will substitutes.2 1 9 What are the moral claims
of the persons whom the decedent preferred to the widow? The Ger-
man Civil Code takes this into account, 220 but most American stat-
utes do not,22 ' except insofar as the widow's obligatory share is often
reduced when the decedent is survived by descendants. 22 If a hus-
band's other heirs are not related to his wife (for example, children
by a prior marriage), it is "common and commendable" for him to
desire that his property go to them rather than pass out of his blood
line to his widow.22 3 In fact, in the case of second marriages the
211 DIGEST 5.2.8.6, 5.2.25 pr.; BGB § 2315; C. Civ. art. 843. But cf. Nov. 115.3.
212 U.P.C. § 2-207(a); cf. MINN. STAT. ANN. § 525.215 (West Supp. 1971);
PENN. STAT. ANN. tit. 20, § 301.11(c) (Purdon Supp. 1971).
213 E.g., Sadler v. Sadler, 184 Neb. 318, 167 N.W.2d 187 (1969). See also
ATKINSON § 129, at 722.
214 Frey v. Wubbena, 26 Ill. 2d 62, 74, 185 N.E.2d 850, 857 (1962); Winters v.
Pierson, 254 Md. 576, 584-85, 255 A.2d 22, 26 (1969); Whittington v. Whittington,
205 Md. 1, 12, 106 A.2d 72, 77 (1954).
215 Intestates' Estates Act, 1952, 15 & 16 Geo. 6 & 1 Eliz. 2, § 1(6), sched. 4.
216 It has even been held that if a widow is incompetent her guardian must
elect to take against the husband's will if this will get her more money, even though
she does not need it. In re Estate of Strauch, 11 Ohio App. 2d 173, 229 N.E.2d
95, afl'd, 15 Ohio St. 2d 192, 239 N.E.2d 43 (1968). Contra, U.P.C. § 2-203.
217 MACDONALD 168.
218 Nov. 115.3; BGB §§ 2333-35; LA. Cirv. CODE art. 1621 (West 1952); In-
testates' Estates Act, 1952, 15 & 16 Geo. 6 & 1 Eliz. 2, & 1(6), sched. 4; L. SIMES
& P. BAYSE, PROBLEMS IN PROBATE LAW: MODEL PROBATE CODE 263-67 (1946).
219 MACDONALD 169.
220 BGB § 2330; cf. INSTITUTES 2.18.1.
221 A claimant under a contract to make a will, however, may be treated as a
creditor and thus preferred to the widow. Rubenstein v. Mueller, 19 N.Y.2d 228,
225 N.E.2d 540 (1967); Beeruk Estate, 429 Pa. 415, 241 A.2d 755 (1968).
222 E.g., ILL. Rnv. STAT. ch. 3, § 16 (1971).
223 U.P.C. § 2-204, Comment.
civil law guards against any excessive generosity by the husband to

his widow at the expense of his children. 224 American statutes, how-
ever, typically protect the widow regardless of the step-children, who
will probably never receive any share of their father's estate awarded
to her.22 6 Perhaps it is not surprising that courts tend to uphold
will substitutes benefiting a decedent's children when challenged by
their stepmother.2 2 6
Objections may be raised to consideration of these equitable
factors by courts in deciding claims by a surviving spouse. First,
if there is no statutory authority for taking into account the claimant's
needs, past conduct, moral claims of the other beneficiaries, and so
forth, what right have the courts to consider them? Secondly, will
not the results reached by weighing such factors be unpredictable
and thus lead to more litigation than a literal application of the stat-
utes would produce? In answer to these objections it can be argued
that courts should not and do not apply ill-considered statutes liter-
ally in all cases.22 7 Also, attempts to defeat spouses' rights are suffi-
ciently rare that an unmanageable flood of litigation need not be
feared.2 28 Before passing final judgment on these arguments, how-
ever, alternative approaches must be considered.
Some courts have focused on the husband's motive. Thus in
ibey v. 1bey2 29 when a widow sought to reach United States Savings
Bonds made payable on death to her husband's son and grandsons,
the court said that gifts by a husband are not "subject to any stand-
ard of reasonableness," but "a husband cannot give away his personal
property for the purpose or with the fraudulent intent of depriving
his wife of her statutory rights in his estate."23 0 The husband's
state of mind could be inferred from such statements as "I will fix
it so that you, Maude, won't get any part of my estate.123' This
concentration on motive seems unsound, since motive is irrelevant
224 C. Civ. art. 1098; J. BRiSSAUD, A HISTORY OF FRENCH PRIVATE LAW § 140
(1912); cf. DIGEST 5.2.4.
225 But cf. Wis. STAT. ANN. § 861.17(2) (West 1971).
226 E.g., Dennis v. Dennis, - l1. App. 2d -, 271 N.E. 2d 55 (1971); Frey v.
Wubbena, 26 Ill. 2d 62, 185 N.E.2d 850 (1962); Winters v. Pierson, 254 Md.
576, 255 A.2d 22 (1969).
227 E.g., McGovern, Homicide and Succession to Property, 68 MICH. L. REv. 65,
68, 108 (1969).
226 Plager, The Spouse's NonbarrableShare: A Solution in Search of a Problem,
33 U. CHm. L. REV. 681, 715 (1966).
229 93 N.H. 434, 43 A.2d 157 (1945).
230 Id. at 435-36, 43 A.2d at 158.
231 Id. at 437, 43 A.2d at 159.
under the terms of most statutes, 232 and is difficult to prove. More-
over, does it really matter to a widow who is left destitute whether
her husband transferred his property because he hated her or be-
cause he loved someone else more? Is not the injury to the widow
233
the same in both cases?
Another approach is to consider the extent to which the chal-
lenged transfer was testamentary in nature. Thus, Roman law drew
a distinction between revocable and irrevocable gifts; only the former
were subject to attack by the donor's heirs. 3 4 A comparable dis-
tinction has been drawn in Anglo-American law between transfers
which are subject to alteration by will, such as a bank account trust,
and those which are not, such as a joint account. 23 5 The Restate-
ment of Trusts distinguishes bank account trusts from other revocable
trusts; only the former are subject to claims of the surviving spouse,23 6
because "the depositor reserves such complete control" during his
lifetime that the trust seems particularly testamentary.'"
The Uniform Probate Code, following the lead of a few state
statutes, 238 adopts this basic approach, but without all the foregoing
questionable distinctions. Property which has been transferred by a
decedent is made subject to the surviving spouse's election if the
transfer has any testamentary characteristics; for example, a reser-
239
vation by the decedent of a life interest or the right to revoke.
The Code would include all revocable trusts, property held jointly,
and bank accounts or bonds in P.O.D. form.2 40 Life insurance is
232 But cf.TENN. CODE ANN. § 31-612 (1955).

233 Cf. Bromage v. Prosser, 107 Eng. Rep. 1051, 1054 (K. B. 1825).
234 Under the lex Falcidia. DIGEST 39.6.27, 39.6.42.1. However, even irrevocable
gifts could be challenged as "inofficious." CODE 3.29.
235 N.Y. LAW REVISION COMMISSION REPORT 598 (1951). See also Intestates'
Estates Act, 1952, 15 & 16 Geo. 6 & 1 Eliz. 2, § 5, sched. 4.
236 RESTATEMENT (SECOND) OF TRUSTS § 58, comment e (1959).
237 1 A. SCOTT, THE LAW OF TRUSTS § 58.5, at 547 (3d ed. 1967). However, at-
tacks by spouses on bank account trusts often fail. See, e.g., Whittington v. Whitting-
ton, 205 Md. 1, 106 A.2d 72 (1954); Matter of Halperin, 303 N.Y. 33, 100 N.E.2d
120 (1951); In re Estate of Montgomery, - Ill. App. 2d -, 277 N.E.2d 739 (1972).
238 MINN. STAT. ANN. § 525.213 (West Supp. 1971); PENN. STAT. ANN. tit. 20, §
301.11 (Purdon Supp. 1971); N.Y.E.P.T.L. § 5-1.1(b) (McKinney 1967).
239 U.P.C. § 2-202(1).
240 The supremacy of federal law would not appear to bar application of these
provisions to United States bonds. Yiatchos v. Yiatchos, 376 U.S. 306 (1964);
Succession of Guerre, 197 So. 2d 738 (La. App. 1967), writ refused, 250 La. 933,
199 So. 2d 925 (1967). But cf. Clark, The Recapture of Testamentary Substitutes to
Preserve the Spouse's Effective Share: An Appraisal of Recent Statutory Reforms,
2 CONN. L. REv.513, 527 (1970).
excluded, however, 241 "because it is not ordinarily purchased as a

way of depleting the probate estate and avoiding the elective share
of the spouse.' 2 42 This is curious reasoning. Should a particular
wrong be exempted from a rule on the ground that it rarely occurs?
Should horse theft be excluded from a general prohibition against
theft merely because it is relatively uncommon? Although the sa-
cred-cow status of insurance is hard to justify or explain, except per-
haps as the result of effective advocacy by the insurance industry, 43
the exemption is found in other American statutes2 44 and in French
law, where, however, premiums which were "manifestly excessive in
fight of the resources" of the insured can be claimed by his heirs.24
Since no such provision appears in the Uniform Probate Code, pre-
sumably a determined and well-advised husband2 46 can leave his widow
penniless by putting all his money into insurance.
Is the basic approach of the Uniform Probate Code sound? The
Code provisions have been criticized on the ground that they
"would produce substantial litigation. ' 247 This is unlikely, since the
Code gives clearer rules than are provided by case law, for courts
have typically refused to promulgate a specific test for determining
what transfers are subject to the widow's right of election.2 4s How-
ever, the Code is subject to criticism for failure to deal with all the
inequities that have produced attempts to evade widows' statutory
rights. Some inequities have been eliminated by the Code. A widow
who has been provided for by inter vivos gifts must, under the Code,
take these gifts into account if she attempts to claim a share of her
husband's estate.2 49 But other defects in American statutes have
been repeated in the Code out of respect for the "traditions" of the
common law which give the widow "some capital sum related to the
size of the deceased spouse's holdings rather than to the needs of
241 U.P.C. § 2-202(2).

242 U.P.C. § 2-202, Comment.
243 Cf. MACDONALD 237.
244 MINN. STAT. ANN. § 525.213 (West Supp. 1971); PENN. STAT. ANN. tit. 20,
301.11 (Purdon Supp. 1971); N.Y.E.P.T.L. § 5-1.1(b)(2)(B). The widow, how-
ever, may be able to reach insurance proceeds under a community property system.
Davis v. Prudential Ins. Co., 331 F.2d 34 (5th Cir. 1954); Stephen v. Gallion, 491
P.2d 238 (Wash. App. 1971).
245 Law of July 13, 1930, art. 68, [1931] D.P. IV. 1, 36.
246 Cf. Clark, supra note 240, at 531.
247 Zartman, An Illinois Critique of the Uniform Probate Code, 1970 U. ILL.
L.F. 413, 421.
248 E.g., Newman v. Dore, 275 N.Y. 371, 381, 9 N.E.2d 966, 969 (1937).
249 U.P.C. § 2-207(a).
the surviving spouse." 250

Although the Code's distinction between inter vivos and testa-
mentary transfers is typical of American statutes, it is not an in-
evitable one. In French law the heirs' legal portion cannot be de-
feated by either will or gift.2 51 The wife's right to dower at common
law could be asserted against donees as well as devisees of the hus-
band.25 2 In some community property states wives are protected
against inter vivos transfers of community assets by the husband.25 3
Inter vivos and testamentary transfers can be distinguished on the
grounds that (1) self-interest may sufficiently guard against excessive
gifts so that legislation as to them is unnecessary, 254 and (2) to de-
prive a donee of property previously given to him may cause hard-
ship. 255 But these reasons do not seem so persuasive that they should
be determinative in every case; the testamentary character of a trans-
fer should not be the sole criterion of validity. 256 Perhaps for this
reason courts have subjected even irrevocable gifts to a widow's
claims,257 whereas transfers which are revocable or otherwise will-
like have been sustained when the equities favored them. 8 The
Uniform Probate Code, in attempting to draw a clear line between
inter vivos and testamentary transfers, departs from the actual prac-
tices of the courts. This departure seems unwise, unless accompanied
by a more thoroughgoing reform of the law relating to the widow's
forced share.
PLANNING
The advantages and disadvantages of will substitutes as com-

pared to wills have often been discussed, and need not be rehearsed
here. However, some mention of the advantages of the P.O.D. ac-
250 U.P.C., General Comment to Part 2.

251 C. CIrv. art. 913. See also LA. CIv. CODE art. 1493 (West 1952); BGB § 2325;
cf. S.C. CODE § 57-310 (1962).
252 2 BLACKSTONE *132.
253 Johanson, Revocable Trusts and Community Property; The Substantive Prob-
lems, 47 TEx. L. REv. 537, 563 (1969).
254 J. BRISSAuD, A HISTORY OF FRENCH PRIVATE LAW §§ 222, 515 (1912); Clark,
supra note 240, at 518.
255 For this reason, French law does not allow heirs to reach inter vivos gifts
unless property passing by will is insufficient to provide their share. C. Civ. art.
923. In German law, a gift is immune from attack after ten years have elapsed.
BGB § 2325(3).
256 MACDONALD 96, 277.
257 Sherrill v. Mallicote, 57 Tenn. App. 241, 417 S.W.2d 798 (1967).
count over the more common joint account seems appropriate. A

joint bank account is inherently ambiguous. Its creator may have
intended a present gift of all or part of the account. This view is
sometimes adopted by courts, particularly as a rationale for exempt-
ing joint accounts from the formalities prescribed for wills, but it is
often ignored, and properly so since it seems doubtful that a gift is
actually intended in most cases. The usual motives for gifts-saving
of death taxes or manifestation of affection for the donee--can better
be fulfilled in other ways. Still, it is possible that a true present
gift was intended. 59 It is also possible that the account was cre-
ated only for convenience with no intent to give a beneficial interest
to the other party at any time. Third, the account can be and often
is used as a will substitute, with the intent that the other party keep
the funds, but only when the depositor dies. Because these three
explanations for the creation of a joint account are possible, litigation
is often necessary to determine the depositor's intent. Doubts about
the true purpose of a P.O.D. account are less likely to arise; because
the account is expressly payable on death,26 0 it is much more diffi-
cult to argue that either a present gift was intended or that the ac-
count was set up merely for the donor's convenience during his life-
time.
The advantage of a P.O.D. account over a trust account is less
clear, since the latter is also unlikely to be misconstrued as one merely
for convenience, or as a present gift, particularly if the agreement
gives the trustee the sole power to withdraw funds during his life.
However, it is doubtful that the language employed to create a trust
account conveys a clear idea to the average layman of the legal
consequences of his action. Even a lawyer familiar with the law
of trusts may be confused, because many rules governing ordinary
trusts do not apply to bank account trusts. 26 1 The terms "payable
on death" are more clearly descriptive of the legal effect of the ac-
count. On the other hand, absent statutory authority for a P.O.D.
account, there is substantial risk that a court may hold it invalid. 62
Even in states in which P.O.D. accounts are authorized by statute,
they do not seem to be as widely used as trust or joint accounts.
259 See Estate of Chrysler v. Commissioner, 361 F.2d 508 (2d Cir. 1966).
260 Use of the abbreviated form "P.O.D." on the agreement is unfortunate as it
can be misinterpreted. In re Estate of La Pierre, - Ill. App. 2d -, 270 N.E.2d 579,
581 (1971).
261 RESTATEMENT (SECOND) OF TRUSTS § 58, comments d & e (1959).
Whether the advantages of the P.O.D. account will ultimately cause

a change in custom remains to be seen.
A depositor may have a dual motive in establishing an account;
he may wish to have the other party make deposits and withdrawals
for him during his life and keep the balance when he dies. Un-
doubtedly joint accounts are often used in this situation.2 63 Even here,
however, a P.O.D. account coupled with a power of attorney seems
to be less ambiguous and therefore a better method to accomplish
these objectives. The difficulty with a power of attorney is that its
authority may cease upon the incompetency of the depositor, when
the power is often most needed. 264 The Uniform Probate Code re-
moves this objection by authorizing a power of attorney which is not
265
affected by the disability of the principal.
CONCLUSION
The law has often been reformed indirectly by private action.
The medieval rule that a mortgagee's interest was not protected by
the possessory actions was circumvented by the practice of giving
creditors a fee simple subject to a condition subsequent. 266 The me-
dieval prohibition against wills of land was evaded by creating uses.
More recently the law's cumbersome system of probate and adminis-
tration has led to the popular use of will substitutes such as the
P.O.D. account. In the face of such evasions of established rules
the law may either attempt to stop them altogether or it may allow
them and merely try to impose reasonable limitations designed to
preserve the substance of what was sound in the older rules. The
Statute of Uses was based on the first approach; it failed. The Statute
of Wills took the second approach and succeeded. The Uniform Pro-
bate Code has elements in common with both. It recognizes and
validates the use of will substitutes. By and large, the courts have
done the same, but the Code avoids legal fictions such as the mis-
leading concept that a will substitute creates a "present interest" in
the beneficiary. The Code also gives reasonable protection to the
decedent's creditors without imposing the burden of administration
263 In re Estate of Schneider, 6 Il. 2d 180, 194, 127 N.E.2d 445, 452 (1955)
(Hershey, J., dissenting).
264 Wellman, The Joint and Survivor Account in Michigan-ProgressThrough
Confusion, 63 MIcH. L. REv. 629, 667 (1965).
265 U.P.C. § 5-501.
266 McGovern, The Enforcement of Oral Covenants Prior to Assumpsit, 65 Nw.
U.L. REv. 576, 589 (1970).

on non-probate transfers, except in the rare cases in which adminis-

tration is necessary to protect creditors' rights. However, the Code
provisions designed to limit the use of will substitutes to evade statu-
tory claims of the surviving spouse are deficient in that they do not
give adequate recognition to the inequities in the statutes which often
are the cause of the evasions.
The Code can also be criticized for failing to prescribe more
adequate formal requirements for the creation of multiple-party ac-
counts. Almost two thousand years ago the Emperor Trajan, in
recognizing the privilege of soldiers to make informal wills, observed
that "it is particularly in the interest of those to whom this privilege
is given" that remarks made in casual conversation not be construed
as wills.26 7 So today, if will substitutes are to be justified as "the
poor man's will," it is in the interest of the poor themselves that
reasonable formalities be required for them.
267 INSTITUTES 2.11.1; DIGEST 29.1.24.

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THE PAYABLE ON DEATH ACCOUNT AND OTHER

William M. McGovern, Jr.*

History repeats itself in strange ways. In medieval England,

FORMAL REQUIR MENTS

The prohibition against devises of land in medieval England was

* Professor of Law, Northwestern University. Visiting Professor of Law,

this Realme, Landes . . . be not divisible by testament, nor ought to be transferrid

quirements. 10 The same rule applies in France'1 and Louisiana. 2

Tucker v. Simrow, 248 Wis. 143, 21 N.W.2d 252 (1946).

20 Gulliver & Tilson, Classification of Gratuitous Transfers, 51 YALE L.3. 1, 6

These distinctions are anomalous and the Uniform Probate Code

To say that will substitutes are "convenient and inexpensive"

substitutes,3 1 and sometimes large amounts pass in this form.32 Thus

Such a rule should be prescribed by statute, since courts are

45 Cf. Free v. Bland, 369 U.S. 663, 669 (1962).

holdings seem questionable-why should the admissibility of extrin-

52 Cf. McGovern, The Enforcement of Informal Contracts in the Later Middle

that any presumption of donative intent arising from the execution of

a will incorrectly represents the testator's actual wishes. If such

68 Wellman, The Joint and Survivor Account in Michigan-Progress Through

protect the banks against inadvertently cashing checks drawn

75 Id. at 288, 135 N.E.2d at 194-95.

no beneficiary had been named."' 0 Statutes authorizing P.O.D. ac-

80 31 C.F.R. § 315.65-.66 (1971).

depositor's consent. Therefore, most courts ignore the theory that

89 See note 18 supra.

necessary to manifest" an intention to revoke a bank account trust."

98 RESTATEMENT (SECOND) OF TRUSTS § 58, comment c (1959). See also

ing that "a beneficiary designation, but not a change of beneficiary,

107 Id. at 433.

Sometimes after a will is executed, a change occurs in the testa-

icy, 12 6 but in the absence of such a statute, courts generally award

P.O.D. accounts and bonds. 3 ' Cases are divided as to whether

145 Wellman, supra note 99, at 661.

rather than to evade the payment of creditors, by charging lands

163 IowA CODE ANN. § 534.11(8) (West 1970); U.P.C. § 6-107.

(Smith Supp. 1971).

a beneficiary spends the money before he learns of the claims of the

a tenant's land descended to a minor child, an event which could be

180 Statute of Wills, 32 Hen. 8, c. 1 (1540). No such restrictions were placed on

templation of death because the "decedent's motives and intent must

THE SURvrv NG SPOUSE

It is possible that much of the evasion litigation is occa-

205 MACDONALD 17-18.

civil law guards against any excessive generosity by the husband to

232 But cf.TENN. CODE ANN. § 31-612 (1955).

excluded, however, 241 "because it is not ordinarily purchased as a

241 U.P.C. § 2-202(2).

the surviving spouse." 250

The advantages and disadvantages of will substitutes as com-

250 U.P.C., General Comment to Part 2.

count over the more common joint account seems appropriate. A

Whether the advantages of the P.O.D. account will ultimately cause