As in Krooss, the testator probably did not understand that his disposition created transmissible future interests in John and Rachel that were contingent on Lilly dying without children and on their own mothers predeceasing Lilly.
A more direct and efficient means of protecting these descendants is by legislation extending antilapse-type protection to future interests.
DUKEMINER DISSENTS, SUPPORTING TRANSMISSIBLE FUTURE INTERESTS
In The Uniform Probate Code Upends the Law of Remainders,(73) however, Jesse Dukeminier, professor emeritus at the UCLA School of Law, writes in opposition to the objectives of UPC section 2707 because it presumptively does away with transmissible future interests in trust.
Dukeminier's Case for Transmissible Future Interests and What's Wrong with It
Professor Dukeminier builds his case against section 2-707 on two main pillars: a defense of transmissible future interests, which in turn rests on what he calls the "flexibility of the common law," and his portrayal of the well-drafted trust.
To deal with successive future interests, and the enormous variety of complicated trusts, section 2-707 invents a whole new future interests vocabulary to determine which alternative future interest will be given effect under a variety of circumstances.
Apart from the rules about which alternative future interests take, section 2-707 brings other mysteries and surprises.
Because all future interests in trust are, under section 2-707 of the UPC, subject to a requirement that their individual owners must survive to the distribution date unless the trust instrument provides otherwise, escheats will increase if these owners die without descendants substituted for them by section 2-707.
Skilled lawyers often make all future interests contingent upon surviving to the date of distribution, in order to avoid federal estate tax on a remainder if a remainderman dies before the life tenant.
Section 2-707 applies to all future interests in trust, including reversions.
Section 2-707 applies only to future interests in trust, not to legal remainders.