Wills & Trusts- Gazur- Spring 2007- Alexander- Grade 95...

THE POWER TO TRANSMIT PROPERTY AT DEATH
Source of the Power – Now recognized as C (before Irving Trust – said no C right to succession). Complete statutory
abolition of descent and devise may violate the Takings Clause – Hodel v. Irving .
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However, the State may place conditions on the ability to pass land at death – e.g., can’t further subdivide land, or
else escheats; Or could eliminate descent (intestate), but not devise (will) – Hodel .
The Dead Hand Problem – to what extent should a person be able to use wealth to influence others’ behavior after death?
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A Donor’s intention determines the meaning and effect of donative document (in that, evidence of intent
trumps plain meaning of document). R.3d of Prop §10.1
o Courts are generally not granted authority to question the wisdom or fairness of the donor’s decisions
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But , freedom of disposition is curtailed to the extent that the donor attempts to achieve a purpose prohibited by
an overriding rule of law, including:
 Contravention of spousal or creditor rights;
 unreasonable restraint on marriage, or alienation;
 promoting or encouraging divorce or illegal activity;
 impermissible racial restrictions;
 rule against perpetuities
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Unreasonable Restraint of Marriage – The great weight of authority is that gifts conditioned upon the beneficiary’s
marrying within a particular religious class or faith are reasonable – Shapira .
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Constitutionality : Although private restrictions on the right to marry may not be enforced by courts under Shelly
v. Kraemer , such restrictions in wills are not unC. This is because the court is not being asked to enjoin the
donee’s right to marry, rather to enforce the testator’s restriction upon inheritance – Shapira ;
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Public Policy – Such restraints may still be contrary to public policy, however – Shapira (holding that a
provision conditioning testator’s son’s inheritance upon his marrying a Jewish woman was not contrary to
public policy because it constituted only a partial restraint of marriage)
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R.2d §6.2 provides that a restraint to induce a person to marry w/in a particular religious class is
enforceable only if the restriction does not unreasonably limit marriage, in that the marriage permitted
by the restraint is unlikely to occur .
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E.g., Maddox – eligible candidates for marriage w/in the restriction were few in the relevant community.
Court in Shapira held that size of the community is no a longer a relevant consideration, given the ease of
modern travel, phone, internet, etc.
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A will or trust provision that encourages disruption in a family relationship is ordinarily invalid – e.g.,
provisions encouraging divorce, or discouraging reconciliation between divorced spouses, discouraging a child
from adopting a step-parent’s surname, or encouraging distance or separation between spouses, siblings, or
offspring.