Dead Hand Control

To what extent can someone who is making a will provide conditions upon its release to his or her heirs? The answer is that there is actually a great deal of leeway for individuals who wish to establish conditions on the inheritance that they wish to give to their children. However, there is an exception for conditions that are “‘contrary to public policy.'” This means that the courts are reluctant to uphold conditions that are criminal in nature or support racial discrimination. In additions, courts have also been reluctant to enforce provisions that restrict marriage, and those that are considered impossible to enforce. 

There are other ways to control a person’s heirs. A person could exercise dead hand control indirectly by structuring the definitions of parties within a will or trust. These definitions are necessary to determine who can take under a will. A person drafting a will might also want to consider using incentives, such as providing a sum of money if a beneficiary decided to start a business. In short, a testator could use his or her assets to promote productivity in his or her beneficiaries. Finally, a testator might want to consider “no contest” or “in terrorem” provisions. These provisions, if used correctly, might be able to prevent a beneficiary from challenging the validity of a will. The provision removes the bequest that the person would have otherwise received if that person challenges the will. 

See Laura Sanders, How to Control Your Heirs From the Grave, Wall Street Journal, Aug. 10, 2012.

Special Thanks to Brian J. Cohan for bringing this article to my attention.