By Ryan E. Melsky, Esq.

GAGLIARDI & MELSKY, LLC

Several months ago, I wrote an article titled It’s Not Your Money Yet, which detailed the common misunderstanding by beneficiaries that they automatically own what was left to them in a ‘Last Will and Testament.’

This article discusses the opposite situation: the common misunderstanding by the deceased that they can continue to have an ownership interest in, and control over, property after they have died and after they have given the property away through their ‘Last Will and Testament.’

When you draft Wills for a living, you field some very interesting requests from clients regarding how they want their property handled when they die.

“I leave my harp to my spouse on the condition that when my spouse dies, she leaves the harp to the Juilliard School of Music.”

“I leave my house to my daughter on the condition that the house remain the color brown.”

“I leave the entire net residue of my estate to my niece on the condition that she remain unmarried throughout her life.”

“I leave my beloved nephew the sum of $100,000 on the condition that my nephew refrain from smoking cigars and gambling for two years following my death.”

These are actual cases.  Anyone who has been through law school will recognize the famous case of Hamer v. Sidway, which is loosely related to this issue.

Nevertheless, the law is very simple: once you completely give something away to another, in life or in death, you no longer own it.  This legal concept is found in several variations in our system of law.

The “Dead Hand” Problem

“Dead hand” control refers to the controlling of one’s property after their death through different prohibitions.  Simply stated, neither our society nor our system of law is comfortable with the deceased ruling the living.  Although “dead hand” provisions historically appeared in Wills, over time our society came to the realization that it is improper and impractical to take a bequest away from a recipient long after they have received it because, for example, they married or because of who they married.

The Law of Repugnancy

The “Law of Repugnancy” is a general prohibition against having inconsistent or opposing clauses in the same Will.  At first blush, one can argue that there is nothing inconsistent about leaving one’s property to one’s niece so long as she remains unmarried, for example.  At its root however, such a bequest has the legal effect of giving property to someone while preventing that person’s outright ownership of it.  This is generally not allowed in our system of law.  In layman’s terms, the court would effectively ask the Testator: “do you want your niece to own the property or not?”

Problems of Enforcement

Also consider how our society could possibly enforce such a provision.  Who brings the action?  The Executor?  Now the Executor has a lifelong duty to administer the estate and “police” the beneficiaries; a life-long duty to ensure that a house stays the color brown and, if it is painted blue, bring an action in court for the estate to get the house back.

This is highly impractical, to say the least.  Consider how busy our court system would be if such provisions were both enforceable and, indeed, enforced.

The situations above are different from putting money or assets into a trust.  With a trust, the trust “owns” the asset, not the beneficiaries.  Thus, there is no outright ownership by the beneficiaries.  To the contrary, when a beneficiary owns property outright, the person who gave it to the beneficiary no longer has an ownership interest in it and, therefore, can no longer control how it is handled.

In summary, a clause within a ‘Last Will and Testament’ that purports to give property or assets to a beneficiary “on the condition that” the beneficiary handles such bequest in a specific fashion is unlikely to be enforced by the courts.  Courts will likely cite the prohibition against “Dead Hand” control, the “Law of Repugnancy,” and the extreme difficulty with enforcing the provision as reasons why it will disregard the clause and give the bequest to the beneficiary outright.