Conditions on Testamentary Gifts
The story of Max Feinberg and the controversy surrounding the Illinois Appellate and Supreme Courts’ decisions have the potential to affect people across the country. Max Feinberg was a hard-working dentist, working seven days a week to support his family. He valued his Jewish heritage, as evidenced by his observance of the customary Jewish traditions and membership at several synagogues.
In order to preserve his Jewish faith, Max added a testamentary provision in his trust that excluded, from his hard-earned wealth, grandchildren who married outside his Jewish faith. His goal was to “guarantee his family’s Jewish lineage by drafting a will with monetary compensation.” At his death, only one of Max’s five grandchildren had married within the Jewish faith. The Illinois Appellate Court considered the following question: Can a person do what he wants with his money? More specifically, whether a testator can create a testamentary provision that is conditioned on the potential beneficiary marrying within a certain class of people?
After answering that question in the negative, the issue was brought before the Illinois Supreme Court, which took a vastly different approach than the appellate court: instead of assessing the validity of Max’s provision, it focused on Max’s surviving wife’s power of appointment over the distribution of the trusts at issue. The Illinois Supreme Court avoided assessing Max’s trust provision and instead held that his wife altered his disputed testate scheme by exercising her power of appointment. While the Court addressed some of the concerns raised by the appellate court, it left open the question of whether Max’s provision, without a corresponding power of appointment, would be valid if used by individuals in the future.
C. The Need For Certainty
Indeed, the answer to the question posed by the Illinois Appellate Court is uncertain and has been the source of great confusion in both English and American courts alike. State courts disagree in their analyses of such provisions. While the Illinois Appellate Court found Max’s provision void, other state courts, such as Ohio and Massachusetts, have found identical provisions wholly valid. The analysis turns on two issues: first, whether judicial enforcement of certain testamentary provisions involves a Fourteenth Amendment constitutional violation; and second, whether public policy considerations vary depending on the overall effect of the testamentary provision.