Custom As Public Policy: Tying the Hands of the Dead

For a discussion of these developments, see Sitkoff and Dukeminier (2017), pp. 566–570.

See Simmons (2017), pp. 124–148; Foster (1998), pp. 77–126.

California’s Probate Code, for example, now contains provisions barring attorneys and other fiduciaries, such as professional caregivers, from receiving gifts under a will or trust, because of a fear of fraud or undue influence. Cal. Prob. C. § 21380 et seq. Other sections address financial abuse of mentally impaired elders, § 2950 et seq., or penalize those found to have physically or financially abused a deceased elder or dependent adult by treating the abuser as having died before the decedent for the purpose of determining who takes property under a will or trust. Cal. Prob. C. § 259.

Although much speculated about, cases involving gifts contingent on performing or encouraging illegal or tortious actions seem not to have arisen. At any rate they have not been reported. Presumably, this is because donors are aware that such contingencies would not be upheld by courts. But conduct that is criminally or civilly liable has prevented would-be beneficiaries from taking property by inheritance or other means. The most notorious example is that of a would-be beneficiary who kills with the aim of inheriting from the victim. Judicial precedents, e.g., Riggs v. Palmer, 22 N.E. 188 (N.Y. 1889), or so-called “slayer statutes,” e.g., Cal. Prob. C. §§ 250–258, bar someone who feloniously and intentionally kills a would-be benefactor from inheriting or taking under a will, trust, joint tenancy, or other will substitute.

The common-law Rule Against Perpetuities was crafted to limit the reach of the dead hand over future generations. It required an interest in a trust to vest—or not—within 21 years of the death of anyone alive when the future interest was created. The idea was to restrict a donor’s freedom to give property only to those known to her when she was alive or to their children when they come of age at 21. For an account of the history and aims of the Rule, see Sitkoff and Dukeminier, supra note 1, at 887–890. The Uniform Statutory Rule Against Perpetuities, promulgated in 1986 and subsequently enacted as law by most states, was designed to overcome a variety of problems that the common-law Rule was known to cause by providing donors with a fixed 90-year period during which future interests had to vest (or not). See Waggoner (1988), pp. 157–169.

The Visual Artists Rights Act of 1990 provided, for the first time, bare-bones protections waivable by contract and expiring on an artist’s death. See 17 U.S.C. § 106A (2017).

For a comprehensive and largely approving elucidation of this right, see Strahilevitz (2005), pp. 781–854. A more critical review of the legal landscape can be found in Sax (1999).

According to the Organ Procurement and Transplantation Network, more than 115,000 people are awaiting a life-saving organ transplant in the United States as of August 2017. https://​optn.​transplant.​hrsa.​gov. Accessed 31 Aug 2017 Some states have allowed coroners to remove corneas for transplant without consent, but major organs need to be extracted earlier in hospital settings to preserve viability.

For a careful discussion of the cases involving testamentary commands to destroy animals and the rationales courts have used to reject them, see Sykas (2001), pp. 911–943, 930–934, 939–943.

When Sandra West died in 1977, she left her large estate to her brother-in-law on condition that she be buried in the front seat of her sporty blue Ferrari 250GT, in a white lace nightgown with the seat, as she put it, slanted comfortably. The court approved her request, concluding that it was eccentric but not illegal. The crated car was lowered into the ground and covered with concrete to deter vandals or robbers. West’s burial generated enormous publicity—just as she wished—and her grave remains a tourist site. See www.​dailymail.​co.​uk/​article-2962938. Accessed 31 Aug 2017.

Tax Report, Wall St. J., Aug. 29, 1979, at A1. Although Susann’s executor complied with her wish, the Internal Revenue Service decided that the diary was worth $3.8 million at the time of her death, given the voyeuristic proclivities of the pulp-buying public. The Service accordingly assessed an estate tax on the scrapped diary—payable by the beneficiaries of Susann’s estate, rather than by those privacy was protected by the diary’s destruction. Susann could have avoided the tax by burning her diary before she died. That would have done as much good for those mentioned in it and saved her estate beneficiaries over one million dollars.

See Sax, supra note 7, p. 43.

See Sitkoff and Dukeminier, supra note 1, pp. 15–16.

U.S. Code, Title 17, § 302.

For a thorough discussion of cases and the policy debate over allowing postmortem copyright control, see Subotnik (2017), pp. 253–313.

See id. at 258, 296–313.

McCaig’s Trustees v. Kirk-Session of the United Free Church, 1915 Sess. Cas. 426 (Scot. 2d Div.).

When Leona Helmsley died, she attempted to leave $12 million in trust for her dog Trouble. The probate judge cut her gift back to $2 million, of which about $100,000 was spent annually on the dog’s care while it lived. See Glassman (2010), pp. 385–414.

Shaw’s intended trust was found not to be charitable in nature and therefore failed. In re Shaw, 1 All E.R. 745 (Ch. 1957). For a robust discussion of these matters, see Hirsch (1999), pp. 913–957; Hirsch and Wang (1992), pp. 1–58. The influential Restatement (Third) of Trusts § 29, comment m., states that it is against public policy to enforce the terms of a trust if they are “capricious or frivolous” or otherwise do not count as either private (benefitting specific persons) or charitable.

For an account and defense of this principle, see Langbein (2010), pp. 375–397.

See, e.g., Cal. Prob. Code § 16046(b).

One exception to this notion that trustees should diversify investments to protect beneficiaries lies, somewhat surprisingly, in the charitable domain. When the trustees of the Hershey School Trust attempted to sell their controlling stake in the Hershey chocolate company to avoid tying the school’s financial well-being to a single business, they were effectively blocked by political intervention. Pennsylvania politicians worried that a new owner would shift jobs overseas. Hershey workers were not direct beneficiaries of the trust for orphans, but the Pennsylvania legislature effectively treated the trust as though it was intended to help them, not just the school’s pupils. For a summary of these developments, see Sitkoff, supra note 1, at 792–796.

For a thorough discussion of this and related cases, see Sitkoff (2006), pp. 501–516.

See Gertman v. Burdick, 123 F.2d 924, 931 (D.C. Cir. 1941).

See Sitkoff, supra note 23, pp. 510–511.

This is not true in all states. Some have codified rules prohibiting gifts that are antithetical to marriage. In California, for instance, Section 710 of the Civil Code provides: “Conditions imposing restraints upon marriage, except upon the marriage of a minor, are void; but this does not affect limitations where the intent was not to forbid marriage, but only to give the use until marriage.”

See Restatement (Second) of Trusts § 62 (1959); Restatement (Third) of Trusts § 29 (2003).

See, e.g., Begleiter (2012), pp. 125–155, 148–155; Scalise (2011), pp. 1315–1367.

On the deficiencies of the subjective test used by many courts, see Sherman (1999), pp. 1273–1330, 1309–1312.

Maddox v. Maddox’s Administrator, 52 Va. 804 (1854). A bequest was made conditional on the beneficiary’s remaining a member of the Society of Friends. When she ceased to be a Quaker and challenged the condition, Virginia’s highest court struck it down as offensive to public policy. In the court’s view, such a restriction was “pregnant with evil consequences. It holds out a premium to fraud, meanness and hypocrisy; it tends to corrupt the pure principle of religion, by holding out a bribe for external profession and conformity to a particular sect.” Id. at 814–815.

See Sherman, supra note 30, at 1312. The case concerned a bequest to a granddaughter that would be forfeit if she became a Roman Catholic or attended a Catholic school or university.

Restatement (Third) of Trusts § 29 Comment k (2003).

233 A.2d 248 (Pa. 1967). The court struck down a similar condition imposed on children who had already married people who were not of Greek descent and Orthodox religion, finding that it encouraged divorce.

See, e.g., Shapira v. Union Nat’l Bank, 315 N.E.2d 825 (Ohio Ct. App 1974) (upholding a condition that a son marry a Jewish woman both of whose parents were Jewish within 7 years of the testator’s death and noting that the pool of eligible women was sufficiently large as to make the condition not overly constraining, especially given modern means of travel).

Professor Sherman is highly critical of this quasi-empirical test for permissibility:

This numbers-based approach to the problem is entirely—I might almost say astonishingly—unsatisfactory. First of all, the approach seems unprincipled in that its results turn on the fortuities of geographic and demographic factors. By this reasoning, a bequest conditioned on the legatee’s marrying a Jewish person stands more likely to be upheld in New York than in Wyoming, and a bequest conditioned on the legatee’s marrying a Christian probably could withstand attack everywhere in the country, while a bequest conditioned on the legatee’s marrying a Taoist probably could not survive anywhere.

Sherman, supra note 30, pp. 1320–1321.

See, e.g., United State Nat’l Bank of Portland v. Snodgrass, 275 P2d 860 (Or. 1954) (upholding a gift conditioned on the donee not marrying a Roman Catholic or embracing the faith herself).

See Tate (2006), pp. 445–496, 453–462 (cataloguing conditions).

California is in this respect a pioneering state, as the vast majority of states do not affirmatively grant judges the authority to set aside the dispositive provisions of a trust—though all may do so in the necessarily rarer case in which they offend public policy. Section 15403(b) of the California Probate Code reads: “If the continuance of the trust is necessary to carry out a material purpose of the trust, the trust cannot be modified or terminated unless the court, in its discretion, determines that the reason for doing so under the circumstances outweighs the interest in accomplishing a material purpose of the trust.” Section 15409(a) goes on to say that upon petition by a trustee or beneficiary, “the court may modify the administrative or dispositive provisions of the trust or terminate the trust if, owing to circumstances not known to the settlor and not anticipated by the settlor, the continuation of the trust under its terms would defeat or substantially impair the accomplishment of the purposes of the trust.” Nonetheless, the requirement that adhering to the trust’s terms would “defeat or substantially impair the accomplishment” of the trust’s purposes seems to set a very high bar to judicial modification. Although these provisions have been part of the California Probate Code for over 30 years, there is no published decision in which a court cited them to overturn an incentive provision in a trust.

See Restatement (Third) of Trusts § 65 (2003) (allowing a court to alter a distributive provision of a trust “if because of circumstances not anticipated by the settlor the modification or deviation will further the purposes of the trust”).

For further discussion of these issues, see Steiner (2006), pp. 897–940.