Sorry, I misread the student loan term. My mistake entirely. That being said, I’d still take a run at the ‘no-loan other than student loans’ as being void for policy because personal loans from family members and bank loans to students that are not student loans (e.g. student line of credit v. student loan) are often necessarily where I live to get through school, particularly for MBAs and professional degrees that are expensive but often lead to big bucks once the person graduates and gets a job.
As far as big brother intervening in the disposition of private property goes, if it came down to a black and white yes or no, I’d have to say yes, the law should (and does) permit this. (BTW, in my previous post, I was just looking for a way to get my hands on the cash – trying to use the law to my own greedy ends, rather than trying to use the law as a social tool).
The following only deals with trusts in Ontario – the law differs depending on where you live.
When it comes to wills, society has an interest in ensuring that a testator’s bequests do not act against society, so there are limits put on what a testator can do. Where I am, a testator must have the mental capacity to make a will, which includes understanding his or her moral obligations. When a testator does not deal with his moral obligations in his will, then often there will be trouble, so if a person is not capable of understanding his or her moral obligations, then the person is not permitted to make a will.
Take for example a horny fellow who is tired of his wife and does not like his children. He’s rich, she’s a full time homemaker, and the kids are toddlers. He makes a will leaving everything to his new boopsie, and shortly thereafter has a massive heart attack while boning her, leaving his wife and kids on welfare at society’s expense. That is an example where the law puts limits on what a person does with his or her own property.
Another example is how law put a limit on just how far a person can control a beneficiary from beyond the grave. It’s a matter of finding a balance between letting a person do what he or she wants with his money, and not letting that person pull the puppet strings once dead. That’s why a possessive fellow is not allowed to make a will that leaves his estate to his wife on the condition that she does not remarry.
On a larger scale, there are also criminal and human rights aspects to trusts, in which society puts limits on wills simply to keep society trucking along. It would not be a good thing for society if a trust were set up to give money to the first person to shoot the prime minister or some other illegal act. It would not be a good thing for society if a trust were set up to will was to give money to specifically harm a gender or minority.
Up here in Ontario, we can make trusts that give to persons, or that give to charitable purposes. To a considerable degree we can make trusts to non-charitable purposes, but the law is evolving in that respect. Non-charitable trusts get interesting. There are a lot of very good causes that do not qualify as charities, for example, local sports talent. I think it that for the most part, non-charitable trusts can be very helpful in making it possible for a person to leave his or her estate to a purpose rather than a person, but I would want the government to have the authority to limit non-charitable purpose trust to purposes that are not contrary to public policy.
Simple mechanics also put restrictions a person can or cannot do with his or her estate after death. Trusts that intend to give something (the subject of the gift) to someone (the object of the gift) have to be clear enough that the trustee carrying out the trust can determine with certainty that yes, the intent is clear, that yes, the subject being given is clear, and the object receiving the gift is clear. When any of these are not certain, then the law steps in and tries to sort things out as well as possible, rather than just letting things sit unfilled.
Finally, the unfettered ability to make trusts needs can make a big mess for society when corporations use trusts to avoid taxes. Have a boo at what happened in Canada when the corporate and finance worlds clued into the advantages of income trusts Income trust - Wikipedia . I think that this sort of problem should be dealt with by adjusting the tax laws, rather than standing in the way of trusts, but whichever way the government approaches the problem, the fact remains that the government limits what is done with private funds (e.g. forces the payment of taxes) so as to ensure that society can function efficiently.
We have all sorts of social customs and formal law that form the bedrock of our society. Without law, we’d all be in the shitter. The question then is to make the law a just as possible, and to keep working on it, for as society changes, law must change, and as law changes, we must keep an eye on how society changes. In short, law is an extremely important tool that society uses to hold itself together and to advance itself. Have a look at where law came from. In general, western ancient law (in particular Roman law) dealt with what we now think of as criminal matters, and what we now think of as civil matters. Within the civil sphere, estate law was tremendously important (as well as related marriage law – think of marriage a something that ensures the line of succession and disposition of property upon death). As European law developed (both on the continent and also in England), estate law was front and centre from the outset, and ended up extensively intertwined with the development of the law of equity. I think that to take society’s oversight out of estate law would be throwing the baby out with the bath water. I’d rather that society keep working on estate law to help it be equitable than society simply throw all limits to the wind and let the chips fall where they may, no matter how morally unfair.
