Wills, Trusts & Estates Prof Blog

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

Friday, May 3, 2013

Article on the Problem of the Dead Hand

Geoffrey KirschGeoffrey R. Kirsch (Law Clerk to the Honorable D. Brock Hornby, United States District Court for the District of Maine) recently published an article entitled, Henry James, Inheritance, and the Problem of the Dead Hand, 47 Real Prop. Tr.& Est. L.J. 435 (Winter 2013). Provided below is the Editors' Synopsis provided by the Real Property, Trust and Estate Law Journal:

Authors have written countless volumes of literature on the problem of the dead hand. This Article addresses how American fiction writer Henry James Jr. wrestled with the dead hand dilemma in many of his literary works and analyzes how the concept came to exist not only in American law, but also in American culture. James's life entangled with the problem of the dead hand on many occasions, which likely explains his fascination with the topic. John Chipman Gray, James's friend, became one of Harvard's most memorable law professors when he published his treatise The Rule Against Perpetuities, which contained the seemingly simplistic formulation of the rule, which law students continue to learn. Years earlier, James's father contested the will of James's grandfather and prevailed when the court ruled that the grandfather's conditions violated the Rule Against Perpetuities. Although James Sr. overcame the oppressive dead hand imposed by his father, his father's behavior exemplifies traditional principles of trust and estate law in the United States. The Uniform Trust Code supports the notion that no child has a right to inherit, and therefore, courts may not terminate trusts when termination would disturb such conditions. Conversely, James Jr. likely would approve of the Restatement (Third) of Trusts, which allows modification when the reasons for modification outweigh the material purpose.

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