Taming the 'Unruly Horse' of Public Policy in Wills and Trusts
31 Pages Posted: 3 Aug 2012 Last revised: 26 Feb 2013
Date Written: December 20, 2012
Issues involving “public policy” in wills and trusts (outside of cases involving the Rule Against Perpetuities) do not often arise. Most involve restraints on marriage and conditions encouraging divorce. Since such questions arise infrequently, courts usually were satisfied to state the rules in the area and ignore examination of the tests for and sources of public policy.
This situation is changing. Recent interest of clients in restrictions and incentive clauses, coupled with a new proposal in the Restatement (Third) of Trusts, has generated scholarly discussions on restraints on marriage and divorce. This article uses the Restatement’s new test as a springboard to examine the process by which public policy in wills and trusts should be determined. After examining the new Restatement test and finding it wanting, the article develops a more objective and useful test from earlier formulations of public policy in the wills and trusts area. The Article concludes by analyzing restraints on marriage and conditions encouraging divorce in light of the public policy test developed in the Article, and finds that public policy should no longer find such conditions violate public policy.
Keywords: wills, trust, public policy, restrictions, marriage, divorce
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