Last Will & Testament

[Tinker Grey]

Thank you, CD.

While I wait for the lawyer types ... how about this, WHY?

That is, why should some dead-guy's will matter? How long could some dead-guy's will be treated as law?

IMHO, will's should be confined to disposing of stuff that is yours without timed conditions. That is, "If Diane is married when I die, you get the money. Otherwise, the butler (Jeeves Smithee) gets the money." not "If Diane isn't married within 10 yrs, my lawyers will take it all. BWAA HA HA HA!"

[AWB]

Tinker Grey: That is, why should some dead-guy's will matter?

Still not a lawyer here, but here's my WAGs:

If there were a way for people to divvy up their posessions before they died, they would. That is, if I knew I was going to die on June 1, 2000, I'd sign over my properties mainly to my wife, give some mementos to certain family members, etc. But since we can't know when we die, we have wills & trusts.

Also, if your wife were having an affair, you could feign ignorance. But then after your death, you could really stick it to her by redisributing your estate to screw her over. :D

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When danger reared its ugly head,
He bravely turned his tail and fled

[Billdo]

Originally posted by Tinker Grey:
That is, why should some dead-guy's will matter? How long could some dead-guy's will be treated as law?

IMHO, will's should be confined to disposing of stuff that is yours without timed conditions.

As a lawyer-type I can tell you that there are often very good reasons for timed conditions in wills (usually accomplished through a trust). I cannot, however, comment on sitcom/stupid movie plot device type timed conditions.

Perhaps the most obvious example of when a timed condition is needed is when there are minor children as beneficiaries. Then the testator (the person writing the will) might put the money in trust for the child until he or she reaches majority. Or, if there is a large sum involved, the testator may want to delay giving the money until a later age.

But wait, you might say, that's giving the kid the money, but not immediately. However, there may be a clause that the money will go to the kid on his 18th (or whatever) birthday, if he shall then be alive, otherwise to his brothers and sisters (i.e. the testator wants to direct where the money goes if the kid dies before 18, rather than having it pass under the intestacy laws, the laws that govern where property goes without a will).

There are many similar situations where trusts could be used, including beneficiaries with mental or physical disabilities, beneficiaries that the testator thinks would make improvident use of the money, and children from prior marriages. Another reason for a trust could be the control of a family or closely held business.

Then there's the biggie -- taxes. Under the estate tax laws, those with considerable estates can save considarable amounts of taxes if their estates are structured correctly.

Anyway, if somebody has money, it is, to a large extent, that person's to give away as he or she pleases. If you are getting money and don't like the strings attached, you can always decline the bequest.

[Tinker Grey]

Thank you, Billdo.

Shoulda thought of that myself.

Tinker

[Raza]

Not an attorney, but studied wills and estates as an undergrad. I don't have my books with me at the moment to give you some good case cites, but there is ample precedent that would suggest that conditions such as you mention in Cheers are not usually enforceable. For it to even be possible to be enforced, it would have had to have been in a trust or similar instrument making periodic payments to her; otherwise, how would she be "cut off?"

Generally, conditions that are extreme ("as long as he never bathes") or attempting to have an undue influence in another's life (like forcing them to marry) have been ruled as inappropriate in past cases. If you need specific case cites, let me know and I'll look them up.

In a loosely-related sideshow, I saw an old Hepburn/Tracy movie last weekend where he was a prosecutor and she a defense attorney. They ended up prosecuting/defending the same defendant. Not bloody likely in real life due to conflict of interest.

[Tinker Grey]

Originally posted by Raza:
Not an attorney, but studied wills and estates as an undergrad. I don't have my books with me at the moment to give you some good case cites, but there is ample precedent that would suggest that conditions such as you mention in Cheers are not usually enforceable. For it to even be possible to be enforced, it would have had to have been in a trust or similar instrument making periodic payments to her; otherwise, how would she be "cut off?"
Actually, it was Diane's mom that was to be cut off.

Generally, conditions that are extreme ("as long as he never bathes") or attempting to have an undue influence in another's life (like forcing them to marry) have been ruled as inappropriate in past cases. If you need specific case cites, let me know and I'll look them up.
[EMPHSIS MINE]
I was hoping you'd say that (or someone). This question was of general interest to me since this plot line often comes up. But thanks for the offer.

The way you work it is, of course, to put the money in a trust and specify that it not be disbursed until the happening of some condition (or, conversely, that it may be disbursed but will terminate upon the happening of some condition).

Laws vary from state to state, but generally a trust may be created for any purpose that is not contrary to public policy. In California, for example, the rule is that a trust can be created "for any purpose or purposes for which a contract may be made," while in Texas the rule is that a trust may be for any any purpose "which is not illegal."

A condition in a will by which an inducement is offered to a married person to obtain a divorce, or to live separate and apart from his/her spouse, is contrary to public policy and will not be upheld. (Note that some courts will make an exception if it is clearly understood that the money is supposed to be available to allow for the support of the person if he/she becomes divorced, but it cannot serve as an inducement to get divorced. Clear? Ha!)

A condition rendering a gift contingent on the beneficary not ever marrying anyone is void unless it is clearly motivated by an intention to provide support only until a marriage takes place.

Restraints limited as to person, group, or time are valid unless the remaining sphere of permissible marriage is so small that a permitted marriage is not likely to occur. Thus, a parent could leave a gift to a child conditioned on the child not marrying, say, out of the family faith, or not marrying a specific person, but couldn't make it contingent on the child not ever marrying at all. Note, however, that restraints on remarriage may be liberally imposed. Therefore, a man may leave his widow a trust which will provide for her unless and until she remarries, which is terminable in favor of the children upon remarriage. (Yes, I know all about the fact that there are certain things the surviving spouse is entitled to regardless of what the will says.)

Now, I'm not going to go too far into the sitcom analysis, but it seems to me that since the provision in the will discussed in the Cheers show is not illegal nor against public policy, there would be no reason not to enforce it.

-Melin

[Tinker Grey]

I saw a re-run of Cheers last night. Diane's mom came to town to convince her to marry. It seems that if dear-old-dead-dad had specified that mom was cut-off if she didn't get Diane married by 10 yrs after Dad's death.

We see these plot lines over and over again. (Another example, is [u]Brewster's Millions[u].)

My Question is multi-fold: 1) can people actually write wills this way, 2) can you give any famous examples, and 3) are they enforceable?

Thanx.

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Prov. 18:2, "The fool takes no pleasure in understanding but delights in airing his own opinions."

[Tinker Grey]

Dang UBB codes *sigh*

[C K Dexter Haven]

I ain't a lawyer, but it seems to me that you can WRITE your will any way you damn well please. The question is, will it hold up in court if challenged?

Obviously, most stuff is fairly well held up in court. It is fairly common to set up a trust fund under a will, that will not pay out to beneficiaries except under certain conditions (such as, when the kid is old enough for college). If it's done right (such as, set up through a trust fund), I'd bet that almost anything will hold up.

Obviously, if the challenger can prove that the person was of unsound mind or unduly influenced or whatever... or if the documens aren't drawn up right...

But I'd be curious to hear from our lawyers on this one.

[Tinker Grey]

Thank you, CD.

While I wait for the lawyer types ... how about this, WHY?

That is, why should some dead-guy's will matter? How long could some dead-guy's will be treated as law?

IMHO, will's should be confined to disposing of stuff that is yours without timed conditions. That is, "If Diane is married when I die, you get the money. Otherwise, the butler (Jeeves Smithee) gets the money." not "If Diane isn't married within 10 yrs, my lawyers will take it all. BWAA HA HA HA!"

[Billdo]

In a loosely-related sideshow, I saw an old Hepburn/Tracy movie last weekend where he was a prosecutor and she a defense attorney. They ended up prosecuting/defending the same defendant. Not bloody likely in real life due to conflict of interest.

You're right, at least under current legal ethics. I don't have a citation right here, but a lawyer would generally be conflicted out of a matter where an adverse attorney has a close personal relationship like that. We actually discussed this situation in professional responsibility class in law school.

Great movie, though.

[DSYoungEsq]

The first person in this thread who attempts to quote, let alone explain, the Rule Against Perpetuities gets sentenced to sit in probate court and listen to unhappy beneficiaries scrabble for money for a whole year without any breaks! :)

Ditto for anybody who brings up the fertile octogenarian! ;)

-Melin

[Bricker]

LOL. And here I was going to simply mention the Rule Against Perpetuities. But never mind. Yaweh Himself can't grasp all its complexities.

- Rick

[Spoke]

Dang it! Y'all can't just mention something like the rule against perpetuities and then not explain it! You wanna leave the teeming masses befuddled?

From Black's Law Dictionary:

Rule against perpetuities. Principle that no interest in property is good unless it must vest, if at all, not later than 21 years, plus period of gestation, after some life or lives in being at time of creation of interest. [Citations.] The "rule against perpetuities" prohibits the granting of an estate which will not necessarily vest within a time limited by a life or lives then in being and 21 years thereafter together with a period of gestation necessary to cover cases of posthumous birth.[Citations.]

There. Clear as mud? :rolleyes:

Bottom line, to answer one of the questions posed in this thread, yes there is a limit on how long you can continue to control your worldly assets "from beyond the grave".

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"Every time you think, you weaken the nation!" --M. Howard

[Spoke]

(Just don't ask me to explain The Rule in Shelley's Case.) :confused:

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"Every time you think, you weaken the nation!" --M. Howard

[labradorian]

I was a precocious toddler!

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Dee da dee da dee dee do do / Dee ba ditty doh / Deedle dooby doo ba dee um bee ooby / Be doodle oodle doodle dee doh http://members.xoom.com/labradorian/

[CowJason]

Okay, its against my better judgment, but I'll bite.
Given this " Rule against perpetuities", (a) how can loaded daisy-pushers like Carnagie continue to fund the arts and education long after their demise, and (B) how can a time table as variable as "not later than 21 years, plus period of gestation, after some life or lives in being at time of creation of interest" possibly be used in court?

Carnegie simply gave his money to a foundation that has his name on it, I would imagine. That's what Getty did, allowing the Getty Museum in L.A. to be THE richest art museum in the world, at least in terms of available cash.

As for how to apply the Rule Against Perpetuities, I will simply point out that there is a reported appellate decision holding that a general practitioner of law did not commit malpractice in failing to understand how the Rule was applid in a particular case, because only a specialist in estates and trusts could be expected to do so.

-Melin

[Billdo]

Melin, DSYoung & Bricker, be glad you don't have to practice in New York. Not only do we have the rule against perpetuities, we have the rule against suspension of the power of alienation, which is sorta similar but not quite (and makes the rule against perps look straightforward, to boot). Any grant of an estate in land has to satisfy both. (We have, however, prohibited by statute the fertile octoganarian, though I was sorry to see the old bat go.)

CowJason, (a) the rule against perpetuites does not apply to charitable trusts (but it does against charitable remainder trusts--go figure!), so Carnegie's trust can last perpetually. (b) All I can say about how the rule against perps works is: go to law school. In your first year property course you will spend 1-2 months attempting (and most likely failing, unless you are a much better man than I) to learn just what the heck it means.

One of the lawyers in my firm, however, did win a case in the New York Court of Appeals, New York's highest court a few years back invalidating a transaction on the basis of the rule against perpetuities. See http://wwwsecure.law.cornell.edu/ny/ctap/I96_0141.htm Don't ask me to explain it, though.

[Diceman]

Come on, guys, what the heck is the "fertile octogenarian" rule??? Are 80-year-old grandparents having children really a problem? Don't leave me hanging!

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--It was recently discovered that research causes cancer in rats.

[Billdo]

Diceman, you really don't want to know. It'll make your head spin and you sick to your stomach, or at least it did when I was in law school.

[DSYoungEsq]

Let's just say that counting to 21 isn't as easy in DET cases as it is at the blackjack table. <snort>

Diceman, the common law assumes that anyone who is currently alive can have a child, even if that person is a woman who is 80 or more years old. Thus, "the fertile octogenarian." It's one way that the Rule Against Perpetuities can trip up an estates and trusts planner.

Billdo, meant to say welcome to the board! And while I have practiced in New York (I'm still licensed there, too), and have one Court of Appeals case under my belt, I am happy to say that it had NOTHING to do with wills and trust! ;)

-Melin

[Billdo]

Thanks, Melin. Though I must say that simply explaining that there's a presumption that everyone, even an 80-year old woman is fertile (though in New York the law is now that she is presumed infertile unless, somehow, she is in fact fertile) doesn't begin to capture the trouble our fertile octogenarian can cause (particularly to the brains and digestions of law students).

CowJason wondered "how can a time table as variable as 'not later than 21 years, plus period of gestation, after some life or lives in being at time of creation ofinterest' possibly be used in court?" Both Melin and I, sorta ducked the question by saying it's so damn complex that a month or more of law school is required to explain it and courts recognize that even competent lawyers are likely to screw it up.

But to just touch on the rule, a person is considered to be a "life in being" if that person is alive (or in gestation) and that person's identity can be definitively determined at the time of the grant. If someone gives a gift during that persons' life (let's call the person the Grantor) to "my son Jason," Jason is a life in being because he is alive and we know who he is. However, if the Grantor gives a gift "to my children" (without specifying individual names of children), the children would not be considered "lives in being" under the rule against perpetuities because there is the possibility that the Grantor could have another child after the date of the gift.

Now changing the facts a little bit, let's say that the Grantor gives a gift "to my children" by will at death. Then, all of the Grantor's children will be considered lives in being, because the late Grantor is extremely unlikely to have any more children due to his recent demise (putting aside children in gestation, who will get sorted out within 9 months or so -- and no cracks about sperm banks and the like, this is centuries old English common law we are talking about).

Now let's say Grantor is an 80-year old woman. We all know that she will no longer have any children, but under the common law she is presumed to be fertile, and her gift during her lifetime "to my children" is considered not to be one to "lives in being." Because of this, certain gifts she might make "to my grandchildren" would be void under the rule against perpetuities because they might not vest (and don't ask what it means to vest, it ain't pretty) within 21 years after the death of the Grantor's children.

Now, if the Grantor were someone who might be reasonably expected to have more children, this result might be just what we expect. However, if this poor old grandma, who knows who her children are and that she will have no more, goes to her lawyer and asks to set up a trust that will be distributed to her grandchildren who survive to their 18th birthdays, imagine her surprise that the trust might be totally void. (Note that if she did the same thing in her will, it would be perfectly fine).

Now doesn't that clear it all up?

This is just one touch of the fun that you can have with the rule against perpetuities.

::laughing:: Billdo, it's going to be fun having you around this board!

-Melin

[Northern Piper]

CowJason asked:

how can a time table as variable as "not later than 21 years, plus period of gestation, after some life or lives in being at time of creation of interest" possibly be used in court?

You're right, it's not much good if what you're looking for is a fixed term to the Trust. But, if what you're trying to do is create a Trust that will last for a long time without infringing the Rule of Perpetuities, it actually can work.

For example, one of the standard clauses used in Commonwealth countries that have the Rule against Perpetuities is the "Queen Victoria" or "Queen Elzabeth" clause.

The drafter wants to create a long-term trust, and knows that the Rule against Perpetuities puts a limit on how long you can put property into the trust (that is, so far as anything can be known about the Rule).

So, the drafter provides that the trust is to last "for the liftimes of all the descendants of Queen Elizabeth now living, plus 21 years." Since the number of Her Majesty's descendants is known at the moment the trust comes into effect, you have a fixed pool of "lives in being."

The drafter in this case isn't trying to achieve a fixed term for the trust - he or she is trying to create a trust that will last for a long time, without infringing the Rule.

In this example, currently the youngest descendant of HM is one of Prince Andrew's daughters, aged about 10. Given the longevity of the females in the Royal Family (think of Queen Mary and the Queen Mum), that little princess may live to be 80 or 90, plus the 21 years. So, a trust set up with a QEII clause may last for close to a century without infringing the Rule Against Perpetuities.

Clear as mud?

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and the stars o'erhead were dancing heel to toe

[Northern Piper]

One of my colleagues actually had to use a QEII clause, and a question came up.

You want the certainty of a fixed pool of "lives in being" - but what if the rumours about Randy Andy's Falkland activites were true, and there were an unknown descendant of the Queen now living in the Falklands? The uncertainy could cause trouble about the end-date for the trust.

So, they used the term "all of HM's legitimate descendants now living."

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and the stars o'erhead were dancing heel to toe

[John W. Kennedy]

in New York... we have the rule against the suspension of the power of alienation

That sounds like a rule against entails. But I thought entails were a no-no throughout the US, so I guess it isn't....

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John W. Kennedy
"Compact is becoming contract; man only earns and pays."
-- Charles Williams

[Billdo]

With regard to "Queen Victoria" clauses, New York's rule against perpetuities, Estates, Powers & Trusts Law (EPTL) sec. 9-1.1 provides that "In no case shall the lives measuring the permissible period be so designated or so numerous as to make proof of their end unreasonably difficult." Under this, it's my guess that a
clause based on the decendants of Queen Vickie would be void, but one on Queen Lizzie might work.

The New York rule against suspension of the power of alienation, EPTL sec. 9-1.1(a), provides:

(a) (1) The absolute power of alienation is suspended when there are no persons in being by whom an absolute fee or estate in possession can be conveyed or transferred.
(2) Every present or future estate shall be void in its creation which shall suspend the absolute power of alienation by
any limitation or condition for a longer period than lives in being at the creation of the estate and a term of not more than twenty-one years. Lives in being shall include a child conceived before the creation of the estate but born thereafter.

The clearest explanation that I've heard on what this means is that the power of alienation exists when all of the holders of interests in a piece of property would be able to actually get together in a room and sign a deed to convey a fee simple absolute and possession to a single grantee. The power is suspended when there are undetermined or not yet born holders of future interests or other similar uglyness. Under the New York rule, a grant of an interest is void if after the end of lives in being plus 21 years, there is a possibility that the power of alienation would be suspended.

The fee tail was separately abolished (EPTL sec. 6-1.2) in New York effective July 12, 1782. (And if a fertile octogenarian raised interest on this board, I'm sure that some foolish non-lawer who gets own this far in this thread without losing all sanity will wonder about the practice of enfeoffment in tail. Perhaps someone at Bucky's Edwardian party in MPSIMS has done it recently?)

[Northern Piper]

Billdo,

we don't have a statutory provision, but I think our courts have reached the same conclusion as a matter of common law - so I think putting a Queen Vickie clause in would be risky, hence the QEII clause.

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and the stars o'erhead were dancing heel to toe

[Billdo]

Just as an aside, labradorian claimed:

I was a precocious toddler!

We've prohibited that in New York, too, along with the fertle grannie.

(e) (1) Where the validity of a disposition depends upon the ability of a person to have a child at some future time, it shall be presumed, subject to subparagraph (2), that a male can have a child at fourteen years of age or over, but not under that age, and that a female can have a child at twelve years of age or over, but not under that age or over the age of fifty-five years. (EPTL 9-1.3(e))

(No, I have no damn idea why they chose the ages that they did.)

If you're interested in other provisions of this fascinating law :::yawn:::, you can check out http://assembly.state.ny.us/cgi-bin/claws?law=38&art=36 .

[Nickrz]

I wonder if there's any significance to the fact DSYoungEsq seems to be stuck at 666 posts? HMMM? ;)

[Northern Piper]

billdo,

if memory serves, 14 and 12 were the ages at common law when boys and girls could marry. (yes, I'm serious.)

It dates back to the days of feudalism when arranged marriages were just a surrogate for land transfers and political alliances.

Most jurisdictions have upped the age a bit, but you can still find echoes of it in the law from time to time.

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and the stars o'erhead were dancing heel to toe

IIRC, Henry VII's mother was 12 years old -- certainly no more than 13 -- when she, legally married, gave birth to him. This was back in the 1400s, of course.

-Melin

[Northern Piper]

Hi, Melin.

You're quite right. Lady Margaret Beaufort was born in 1443, and gave birth to Henry in 1457. Interestingly, they both died in 1509.

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and the stars o'erhead were dancing heel to toe

[Billdo]

Just checking: Is there anyone who has survived to the end of this post (and it certainly would be a long hard slog) but us lawyers?

[torq]

Actually, there is at least one non-lawyer still here. Dunno why I'm interested in this stuff, but I am; sometimes I'll read the online Supreme Court decisions at www.findlaw.com (http://www.findlaw.com) for diversion, the way some people I know read romance novels.

[Irishman]

I read it.