Document Type
Presentation
Publication Date
10-27-2017
Disciplines
Estates and Trusts | Law
Abstract
The general rule that a person cannot be bound by an agreement or decree unless she received notice encounters practical difficulties where a person is missing, incompetent, a minor, unascertained, or even unborn. All beneficiaries are necessary parties in a trust proceeding. But short of appointing a guardian ad litem to represent persons who are difficult to notice, uncertainty and inefficiencies would be encountered were it not for the doctrine of virtual representation. Under the doctrine of virtual representation, persons - even if not yet in existence - can be held to be parties to a proceeding or an agreement "virtually so." The doctrine arose in the 1800s and was expanded by New York by statute in 1967. Fifty years later, in 2017, South Dakota enacted a comprehensive and detailed statutory scheme for virtual representation in trust matters, whether in judicial or nonjudicial proceedings. This paper contextualizes, comments upon, and explicates that statutory scheme.
Publication Title
The South Dakota Trust Association (in coordination with the American Bankers Association) First Annual Fall Forum
Location
Sheraton Sioux Falls and Convention Center, Sioux Falls, South Dakota
Recommended Citation
Thomas E. Simmons, Introducing Virtual Representation, Presentation at the South Dakota Trust Association and American Bankers Association First Annual Fall Forum (Oct. 27, 2017)