Article on Public Policy in Wills and Trusts

Martin D. Begleiter (Ellis and Nelle Levitt Distinguished Professor of Law, Drake University Law School) recently published his article entitled Taming the "Unruly Horse" of Public Policy in Wills and Trusts, 26 Quinnipiac Prob. L.J. 125 (2012).  The introduction to the article is below: 

Public policy has long been an enigma in wills and trusts. It is a matter often invoked but almost never examined. The “public policy” is never evaluated or examined nor its source stated. The decisions simply state that something is public policy and go no further.

Scholars are little better. Although articles on public policy exist, in the main they explore public policy in constitutional law and in areas other than estate planning. Possibly this is because most “public policy” in wills and trusts involves a narrow area: restraints on marriage and provisions encouraging divorce. Questions on such clauses are not among the more significant questions in the area, nor do they arise with great frequency. Therefore, it was often sufficient to simply state the rules in this area (which are relatively well-established) and ignore the larger questions regarding public policy.

This situation is changing. Apparently, clients are becoming more interested in restrictive and incentive clauses. Several recent and important articles have been written on such clauses. Presentations on the subject are increasing, and a recent and well-publicized case involving a restraint on marriage was decided in late 2009 in Illinois. Lastly, the Restatement (Third) of Trusts has proposed a new and more encompassing definition of what should constitute public policy in trusts. These developments have generated renewed interest in the considerations surrounding the development of public policy in trusts.

One major caution should be made clear before beginning this inquiry. Although I shall discuss the cases involving conditions on divorce and restraints on marriage because they comprise almost all the cases on public policy in the field, the major theme of this Article is what should be public policy in wills and trusts. What is the test for whether something is (or should be) or is not (or should not be) public policy? Where does public policy come from? Second, I do not intend to discuss all the cases on restrictions on marriage and divorce. This has already been excellently accomplished by Professor Jeffery Sherman and I cannot improve on his discussion.

The discussion will proceed as follows. Part II will give a brief summary of the rules on restraints on marriage and divorce to provide a background for the discussion that follows. Part III will present and evaluate the test of the Restatement (Third) of Trusts for public policy in this area. After finding the Restatement's test unsatisfactory for several reasons, Part IV will examine another possible definition of public policy used in earlier Restatements. Part V will examine the sources of public policy, primarily the courts (decisions), and the legislature (statutes). Lastly, Part VI will touch upon the “public policy” bases behind the development of the rules on conditions on divorce and in restraint of marriage, to suggest that such rules were the product of the conditions prevalent at the time when the rules were developed, and that many of these conditions are changing or no longer exist.