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The Uses and Limits of “Dead Hand Control” in an Estate Plan

As a general rule, you have the right to dispose of your property in a last will and testament as you see fit. For example, you could choose to disinherit one or all of your adult children. You can also make gifts to individuals and institutions subject to certain conditions, such as requiring a college to use your bequest for a certain program. Such conditional gifts are sometimes referred to as “Dead Hand Control,” as the person making the will is effectively trying to exercise ongoing control of his or her property even after death.

Canadian Court Rejects Racist, Homophobic Gifts

But there are limits on Dead Hand Control. Courts can refuse to enforce a conditional gift or bequest in a will if it violates “public policy.” What exactly does that mean? For one thing, you cannot condition a gift on the beneficiary committing an illegal act.

Recently a probate judge in Ontario, Canada, rejected several gifts in a will as violating the province’s Human Rights Court. The deceased left a will directing his trustee to establish a series of scholarships for “white, male, single, heterosexual” students, as well as a separate award for a “single Caucasian white girl who is not feminist or lesbian.” The deceased also imposed several additional conditions, including that the male scholarship recipients should not play intercollegiate sports.

The judge disallowed these conditions, citing Canadian law permitting a court to overrule a will if its provisions “if they clearly offend the interests of the state.”

Considering Unusual or Impractical Conditions

It should be noted, however, that a court will not necessarily overrule a will just because the testator sets bizarre or unusual conditions. Indeed, the judge in the Ontario case relied on a 1937 decision from Canada’s Supreme Court which upheld a testator’s gift of his estate to the Toronto woman who gave birth to the most children in the ten years following his death. While unusual, this condition did not violate Canadian law or public policy.

One thing to keep in mind if you want to impose any conditions in your own will or trust is the practicality of carrying out your wishes. For instance, if you decide you do not want your children to receive their inheritance until they reach a certain age—a common condition in many estate plans—that means someone will potentially have to maintain control of your property for several years. This can add significant time and expense to the administration of your trust or estate.

You should also consider the potential burden on the recipient. For example, in a 1993 Virginia case, a retired Coast Guard officer left the U.S. Coast Guard Academy a $1 million trust with instructions to use the trust’s income to reward a single student each year. The Coast Guard asked a judge to change the terms of the gift, noting the size of the annual award—estimated as high as $130,000—“would seriously disrupt the Academy’s operations and interfere with the attainment of its goals.” The judge agreed and modified the terms of the gift to benefit a larger number of students.

Cases like these illustrate the importance of speaking with an experienced San Diego estate planning lawyer before making a will or trust. An estate planning attorney can advise you on the legal and practical ramifications of a conditional bequest and help prevent any litigation after your death. Contact the Law Office of Scott C. Soady today if you have any questions.

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