REVIEWS
| Date | 01 March 1962 |
| Published date | 01 March 1962 |
| DOI | http://doi.org/10.1111/j.1468-2230.1962.tb02205.x |
REVIEWS
FRAUD
ON
TEE
WIDOW’S
Sw.
By
W.
D.
MACDONALD.
[Ann
Arbor: University
of
Michigan
Law
School,
in
the series
Michigan
Legal
Studies.
1960.
(Text, appendices
and
tables)
xviii
and
458
and
22
pp.
$10.1
TRIO
is
an excellent
book
on an important rubject. Professor Macdonald, who
teaches law
at
the
University
of
Florida,
examines
the
problem of protecting
the widow
agaInat
evasion
of
the
fod
ahare legidatton which
abts
in
most
American
&tea. Under
a
typical
fomd
share
atntnte
the
widow
is entitled
to
el&
agairut
her
husband’s
will
ad
receive
a
6h.n
approximating
to
her
intestate
share.
While
thin
pmtsb
her
againnt
dldnheritance
by
wW.
it has
prod
ina&qwte
protsction
rpia&
gifts
intu
cioor,
many
forma
of
which
man’s subatitute
for
a
will.
Nor
haa
the
hduo
widow
the
dc#uard
of
a
marriage settlement-thin device never having
kcn
curtormrry
in
the
United
Stah.
&atUte
&
the
trmeatlntic
counterpart
to
the
fdy
praidon
kghhtiam
of
the
Britlrh
Commoaaalth,
although
making
use
of
quite
didermt
techniquer.
The
author‘s thesis
in
tb.t
the statutory
hre
rhould
be
replaced
by
decedents’
family
maintenance
legisla-
tion
of
tbe
Aurtraluieo and English
type
and that this legislation should
be
buttressed
with
antlcvuion provisions
to
meet
~merican conditions. And
he
submite
for
consideration the draft text
of
a
model
Act
which would reconcile
the conflicting triangle
of
soda1 intercabthe protection of the widow against
disinheritance,
the
aecurlty
of
title
of
the transferee, and the husband’s wish
to
plan his
atate
with
some
degree
of
predictability.
The
practical importance
of
th&
mbject
for
American
lawyers
is
obvious,
but
its
masterly
treatment by
Profamor
Macdondd makes the
book
of
great
value
to
omm moll
Iawyenr
merywkrc.
The
wide
range
of
his
comparbonn,
extending
to
the
dd
law
M
well
M
other
common
law
systems,
places what
is
at
pnsent
a
domestic
American
problem
in
ampler context, and the depth
of
his analysis into
the
roda
factom
that
underlie
the
legal
crust makes his
suggested
refom
aignlflcant for
sodeties
such
an
our
own which
seem
destined
to develop
on
the American
pattern.
The
book
is
well
arranged
in four
parts.
Part
I,
entitled
”
Mattern
of
Policy” begins with an
aplomtion
of the aggmvating factors that lead to
inter
uiuor
evasion
of
the
forced
share eystem.
These
factors include the high
rate
of remarriage-rather than the high
rate
of
divorce-which induces
transfers
to
the children
of
a
prior marriage, the increasing popularity
of
controlled lifetime giving, and the inflexible nature
of
the
forced
share, which
pays no regard to the widow’s actual
need.
In the author’s view the extent
of
evasion
is
such as
to
frustrate the community goal
of
the forced share system,
the economic assistance
of
the surviving spouet.
Nor
is
this goal adequately
achieved by other expedients such MI public welfare pensions and allowances,
homestead legislation,
or
preferential treatment
for
death duties. Moreover,
the forced share system only
seeks
to
protect the widow, not the children:
in most American jurisdictions
a
child may
be
completely disinherited. The
author contrasts this
“
callous indifference”
of
the
American legislatures to
the welfare
of
the children with the solicitude shown in the civil law
‘‘
reserved
portion,” in the family provision statutes of the British Commonwealth, and
in
the
ancient custom of London.
He closes
his
discussion
of
the basic policy considerations by the conclusion
4rCIrm
hcmaslnglyured
in‘ut4te
phmiog”
by
tbe
wulthy,or
M
the
poor
In
itr
object,
themfore,
the
fd
254
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