Loosening the "Dead Hand": Conditions on Gifts in Wills.

Author:England, Mandy

One of the most well-known (if creepy-sounding) metaphors in estates law is the "dead hand"--an attempt by the deceased to continue to control their property after they have died. Estate planning can be difficult, as it can make people face questions that require them to envision themselves as no longer being part of their loved ones' lives. Perhaps understandably, it can sometimes be difficult for some people to accept that their influence over their loved ones, and over their hard-earned property, might come to an end.

There are times when some continued control is appropriate and useful. For example, a parent might want to set up a trust in her will for her minor children. Often, a parent setting up such a trust will want to delay large payments of money until after the child reaches the age of majority so that the child does not receive a large windfall while he is still relatively young. A parent may hold off on the final payment until the child is in his twenties or thirties. It is also typical to allow the trustee to make smaller payments in the interim, and perhaps to set restrictions on those, such as limiting them to payments for health, education, and support.

However, there are other times that the type of control the testator, the person making the will, wants to apply is more problematic. The testator might want to insert a condition on a gift: that the beneficiary (the person receiving the gift) will only receive it if he acts in a certain way, or conversely that the beneficiary will not receive it if he acts in a certain way.

Drafting a will that contains such conditions on gifts can be tricky, as sometimes the law will intervene to loosen the grip of the "dead hand" and find such clauses to be ineffective.

Public Policy

Conditions can be found to be void for public policy reasons. These are conditions that the courts will not enforce because doing so would so be contrary to public values that there could be some social harm in allowing those conditions to be enforced. However, there are limits to the extent to which the courts will apply public policy considerations to private testamentary dispositions, which are gifts of property made in a will. Such circumstances are rare, as such intervention is always balanced against the equally important principle of testamentary freedom and the ability of a property owner to deal with that property in the will as he or she sees fit.

Even though courts strive to protect testamentary...

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