Wills, Trusts & Estates Prof Blog

Editor: Gerry W. Beyer
Texas Tech Univ. School of Law

Wednesday, August 10, 2011

Article on the "Deadhand"

RScalise2 Ronald J. Scalise Jr. (A.D. Freeman Associate Professor of Law, Tulane University Law School) recently published his article entitled PUBLIC POLICY AND ANTISOCIAL TESTATORS, 32 Cardozo L. Rev. 1315 (2011). The abstract of the article is below:

This Article challenges the conventional wisdom that “deadhand” control by testators in certain situations is violative of public policy and should not be enforced. Specifically, it argues that many legacies conditioned on a beneficiary acting a certain way or doing a certain thing, such as not marrying or remarrying, should be enforced. This Article argues that the modern approach of disallowing conditions or restrictions on marital freedom in legacies is a product of a bygone era and that the reasons employed for invalidating such conditions are no longer sufficient justifications in the modern day for the current approach of courts. This conclusion is reached only after an examination of Roman, English, French, German, and especially American primary and secondary sources.


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