Wills: Testamentary Freedom Flashcards
What is testamentary freedom?
In America, you have freedom to use your money however you want while you’re alive. A guiding theme for the rest of the course.
Does that apply to wills?
Yup. In America, we believe you know best on what to do with your money and stuff. In the law of trusts and estates, you should be able to use your intent to the maximum amount.
What are the limits on testamentary freedom?
You can’t use your will to achieve a purpose that runs against the law. Condition will be struck but gift is still okay.
You can’t use your will to violate or go against public policy. Criticism: public policy varies.
Destruction: Some states limit the right for you to use your will to destroy your stuff. You can do it while you’re alive, but you probably shouldn’t ask your descendants or survivors to destroy your stuff. Collectively, we don’t like waste and it’s imposing a loss on descendants and others that should have been handled internally by the decedent.
What does the Shapira v. Union Nat’l bank teach us?
Son argues that condition of receiving his father’s inheritance that requires him to marry a Jewish woman within 7 years is unconstitutional and against public policy.
Point to this case: Testator’s have A LOT OF POWER.
Court says: not unconstitutional because you can still get married to anyone, and not against public policy because you don’t have to marry someone Jewish at all.
Complete restraint on freedom from a will = bad
Reasonable restraint on marriage = okay. Request was reasonable here.
Never okay if motivated by animus.
Court says restraint on marriage is ok if it’s clear and reasonable and it’s sometimes important if:______
It’s OK if testator intends for money left behind to act as “insurance” or as a cushion to take care of someone. Ex: I leave 10 million to my son in the event he gets divorced.
