Law of Future Interests in Nebraska (Part Two), The
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Authors
Volkmer, Ronald R.
Issue Date
1985
Type
Journal Article
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Abstract
INTRODUCTION|In their future interests casebook under a chapter entitled "Requirement of Survival, 332 Professors Halbach and Scoles have this to say about the topic of survivorship: This chapter is concerned with what is probably the most frequently litigated question in the law of future interests today, and consequently it is one of the most important phases of this course from the point of view of draftsmanship as well as construction. The question before you in most of these cases is whether the interest of a beneficiary who is living at or after the effective date of a will or deed is subject to a requirement that the beneficiary also be living at some subsequent date. Thus, the question is to be distinguished from the problem of lapse, which has to do with the death of a beneficiary before the testator dies, i.e., before the effective date of a will. These cases are also to be distinguished from those involving the question of vesting, discussed in the previous chapter. Questions of vesting and questions of survivorship are often closely related, but whether a future interest is vested or contingent does not (or at least ought not) resolve the question of whether survival is required, and conversely the fact that survival is required does not necessarily make an interest contingent. Unfortunately, courts have not always kept this distinction clear either in the language of their opinions or in actually deciding cases. Of course, the widely asserted preference for vested construction or for early vesting is relevant, and this preference is often said to include a preference for early indefeasibility...
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Citation
18 Creighton L. Rev. 601 (1984-1985)
Publisher
Creighton University School of Law