Abstract

The majority of American jurisdictions still continue the original common law concept of a statute of limitations that begins to run immediately upon the commission of a wrong, as contrasted with the more modern rule that a statute of limitations will not begin until such time as the injured party actually discovers the injury or, in the exercise of due diligence, should have discovered the injury. Those jurisdictions adopting the modern approach disregard what they refer to as the "technical" approach of the common law rule in order to focus on more fundamental concepts of justice instead. The issue, as stated by this emerging modern view, is whether a remedy shall be actually (vs. theoretically) available to an injured party for a reasonable period of time. It is recognized that in many instances the existence of an injury will not be discovered until long after the negligent act in question has been committed. This is particularly true where the injury in question arises out of the negligent drafting of a will or other estate planning document which isn't designed to become operative until some time in the future. Therefore it is argued that to start the statute of limitations running upon the commission of the wrong, as opposed to the time of discovery, is to effectively deny a remedy in the typical case of negligent draftsmanship in a will.

Document Type

Article

Publication Date

Spring 1980

Comments

Originally published in Prac. L., Oct. 1979, at 51

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