Limits on Inheritance: Void conditions Flashcards
Malum Prohibitum
That which is prohibited by law, regardless to if we think it harmless or bad, it doesn’t matter. Only applies to personal property, or mixed personal and real property
Malum in Se
That which is in its very nature, prohibited. Something that is inherently bad. Only applies to personal property, or mixed personal and real property
What happens if you can find malum prohibitum vs malum in se
Some condition precedents can be saved
Rules for gifts consisting of only real property
- If condition precedent and condition void for any reason at all whole gift fails
- If condition subsequent condition is void for any reason at all then condition void and gift valid
Rules for gifts consisting of personal property or mixed (both real and personal)
- Condition precedent= void condition means void gift (3 exceptions)
- Condition precedent= condition void, gift valid
3 exceptions for mixed/personal property condition precedent
(1) If the condition precedent is void for illegality, it will render the gift void, if it is malum in se. BUT if you can prove it is illegal and malum prohibitum, you can save the gift.
(2) if the condition precedent is deemed to be in terrorem
(3) if condition is void for reasons of impossibility
In terrorem
A condition that is a mere threat to induce the beneficiary to comply w/ the condition, also known as an “idle threat.” The court generally ignores it.
3 conditions that need to be met for finding of interrorem
- Legacy must be composed of personal property, or both personal and real property.
- Legacy must include a restraint on marriage, or prevents the beneficiary from disputing the will in court.
- It must not be merely idle, i.e. there must be a gift over. – infers that a condition unaccompanied by a gift over reveals that the condition is a mere idle threat, that is not in reality a “condition” properly so-called.
Re Kent
Facts: “if any person brings forward an action against my estate other than for clarification they lose their gift and it goes to residue”
Ratio: in terrorem because gift over provided, still void for public policy (stop people from executing statutory right). Condition subsequent so does not fail whole gift.
Public policy
Allows court to either stop or void an otherwise lawful operation of the common law
Restraints on marriage
- Main public policy issue
- Right to get married is constitutional, messing with marriage in will triggers public policy
Re Muirhead
Clauses that prohibit a never married person from ever marrying are against public policy
Re Hurshman
Facts: the will said “my property and estate to daughter provided she is not at that time the wife of a jew”. She was already married to a jew.
Ratio: clauses that attempt to break up a marriage are void
Re McBride
Clauses that attempt to break up a marriage are void
Re Hurshman and Re McBride condition precedent
But the court lamely gets around it by saying malum prohibitum even though not really