Friday, January 29, 2010
Christopher T. Elmore (2010 J.D. candidate, Texas Tech University) has published his comment entitled Public Policy or Political Correctness: Addressing the Dilemma of Applying Public Policy to Inheritance Issues, 2 Estate Plan. & Community Prop. L.J. 199 (2009).
A portion of the introduction to the comment is below:
This comment posits that before deeming an inheritance provision invalid as against public policy, a court must point to specific legal authority upon which to infer its interpretation of public policy, rather than reaching into the amorphous cloud of public policy as applied to inheritance. Additionally, the court must ensure that its application of public policy in all situations, regardless of the medium of the controversial provision.
By providing a history of the power of testation and an analysis of the inconsistent application of public policy across the states, this comment will analyze the various definitions the courts have provided, as well as the Supreme Court's guidance to solving the dilemma. It will also analyze the other proposed solutions to dealing with the dilemma, before reaching the ultimate conclusion that the courts must seek actual inferential authority before declaring a provision invalid. If such provision is declared invalid, then it must be invalid regardless of whether it is found in a contract, will, trust, or other medium.