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37 Notre Dame Law. 160 (1961-1962)
History of Estate Planning

handle is hein.journals/tndl37 and id is 176 raw text is: THE HISTORY OF ESTATE PLANNING William D. Rollison* There is no part of the law of greater interest to the people of America and England, from the standpoint of numbers, than estate planning. This interest is not something that is new; it goes back to the days of a feudal society in England shortly after the Norman Conquest. It is my purpose to give a survey of the historical development of the subject. I. Estate planning is a process that is not subject to precise delimitation, owing to the innumerable factors which must be considered. As a process it involves the use and arrangement of property for and among the members of the owner's family group according to a design that will afford the greatest benefit to the objects of the owner's bounty commensurate with estate conser- vation.' But this is only a part of the process. While the basic steps are fairly well defined, the ramifications and combinations are only limited by the ability of the deft planner, acting consistently with the law and the wishes of the prop- erty owner. Accordingly, estate planning is not, in modem law, a job for the amateur or the general practicioner - it is a task for the expert. It involves a wide range of knowledge and the ability to use it. Even the expert may have difficulty in preparing the instruments for a complicated estate plan. No one can deny that an adequate understanding of the historical development gives a better understanding of modem law in estate planning. While a will is not the only form of an estate plan, it is the type most generally used, either singly or in conjunction with other types of plans. The will is the only written form whose main function is the posthumous disposition of property. However, as a testamentary instrument it has other functions besides the posthumous disposition of property, such as the naming of a fiduciary to administer the testator's estate, suggesting a guardian, republishing prior testamentary instruments, or revoking prior testamentary instruments. The will appears to be the earliest of all estate plans. Professor Page says that there is evidence of its use in Egypt some thirty centuries before the time of Christ.2 The nearest thing to the modem will had its genesis in the Roman Law. The will in Roman Law was revocable, and the legislation of Justinian provided formal requisites.3 Wills appear to have been in use in England, especially among notables, prior to the Norman Conquest. But wills received their greatest legal development in modem law in England after the Norman Conquest; and this is the real genesis of the will as used today. The history of the modem will is closely related to the history and development of the use (the forerunner of the trust) and to the history of the Rule Against Perpetuities. No scholar can doubt the interrelation of these three subjects both from the A.B., LL.B., LL.M.; Professor of Law, Notre Dame Law School; member of Indiana and Alabama Bars. 1 See SHATTUCK & FARR, AN ESTATE PLANNER'S HANDBOOK, 3 (2d ed. 1953). 2 1 PAGE, WILLS § 2.4 (3rd ed. Bowe & Parker 1960). 3 See PAGE, op. Cit. supra note 2, § 2.5.

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