Last Will & Testament

Factual Questions
1

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 Brewster’s Millions.)

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.

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

2

Dang UBB codes sigh

3

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.

4

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!”

5

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!”

6

*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. :smiley:

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

7

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.

8

Thank you, Billdo.

Shoulda thought of that myself.

Tinker

9

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.

10

Actually, it was Diane’s mom that was to be cut off.

[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.

11

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

12

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.

13

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! :slight_smile:

14

Ditto for anybody who brings up the fertile octogenarian! :wink:

-Melin

15

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
16

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:

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”.

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

17

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

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

18

I was a precocious toddler!

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/

19

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?

20

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