When you write a will, your estate becomes vulnerable to probate litigation (as opposed to a living trust). When you are related to the Godfather of Soul, there are many, many reasons (read: dollars) to litigate over a contested stake. Elvis Presley’s estate earned $49 million last year; John Lennon’s took in $44 million. True to form, not fewer than 5 of Brown’s 6 recognized children are contesting the share left to them, and Brown’s fourth wife claims she had his 7th child – which would be owed a share under the pretermitted-omitted child doctrine.

At the present time not much remains in Brown’s estate. Although there have been opportunities to earn money through the production of television shows and movies (the latter to be written/directed by Spike Lee), the potential suitors have been scared away by the prospect of litigation. When the judge overseeing the estate administration asked to see all lead counsel in chambers, no less than twenty-one lawyers stood up. That would send a chill down any estate lawyer’s spine, and certainly the Godfather cannot feel good about the result. Read more about the story here, thanks to Professor Beyer for highlighting the ongoing dispute here.

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Michael Ray Jennison was found guilty of second degree murder of a real estate agent hired by a local San Diego probate lawyer. [See the first report here and the second report here.] Jennison inherited part of a condominium from his grandmother (see “What Will Happen If I Die Without A Will?“). Probate agent James Magot was hired to handle the sale of the property, but placed a competing bid against Jennison for its purchase (the forced sale was truly one “Disadvantage of Probate“). The agent and Jennison were involved in an altercation witnessed by a neighbor, after which Jennison shot the probate agent twice in the head. Jennison faces a life sentence.

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Statutory Trust Revocation May Reward Devious Spouses - Punish Sloppy Trust Drafting

It has long been settled that under California probate law, if the trust does not provide for an exclusive method of revocation, the settlors may revoke either by the method contained in the trust or by resort to procedures outlined under statutory revocation. California Probate Code §15401. So we can imagine a scenario where a San Diego trust attorney drafts a trust (see “Living Trust Advantages“) for a husband and wife. Only one method of revocation is provided in the instrument – but that method requires the consent of both husband and wife to revoke the trust. The catch is that the trust does not provide that this method of revocation is the sole and exclusive method for revocation.

Both husband and wife transfer all of their property to the trust. Afterwards, the husband has second thoughts, and decides to revoke the trust without telling his wife. He complies with the statutory method for revocation, and places all of his property – including his share of the community property – in a trust naming children from a prior marriage as beneficiaries. The wife is unaware of the revocation, and upon the husband’s death, learns that she will receive nothing from her husband’s estate. These are the facts of Masry v. Masry, decided on September 4, 2008. 2d Civil No. B201185. Mr. Masry’s post-death surprise was upheld by the probate court (see “What is Probate?”) because the trust drafter failed to protect Ms. Masry. San Diego estate planning lawyers should take the lesson to heart, and prevent the same result in their living trusts.

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A lot can hang in the balance upon the death of a person. Although not every family murder is driven by a large inheritance, it has happened enough that a general rule of law has formed to prevent the person from benefiting from the crime. Not only has the rule of law been postulated by various United States courts, it has also been codified into statute in almost every jurisdiction. The following rule is part of a larger statutory system designed to prevent those who commit crimes from profiting from them.

The California Probate Code states that a person who “feloniously and intentionally kills the decedent is not entitled” to “any property, interest, or benefit under a will of the decedent, or a trust created by or for the benefit of the decedent in which the decedent has an interest, including any general or special power of appointment conferred by the will or trust on the killer and any nomination of the killer as executor, trustee, guardian, or conservator or custodian made by the will or trust.” California Probate Code § 250.

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Many parents do not realize that if circumstances suddenly change, as in unforeseen death, incapacity, or some other circumstance prevents their ability to care for their children, a legal guardianship process will be instituted in which a caregiver is selected by a California probate court. For example, if a parent were arrested while her child was staying at a friend’s house, those other parents would not be able to prove that they had legal custody of the child. The police would then contact Child Protective Services, who would take custody of the child until someone could be found with the documented legal authority to care for the children. This could result in the child being placed in foster care until the issue is resolved by the probate court.

At court, each family member will have equal priority in determining who will become a guardian, even if your wish is that a reliable friend of the family take care of the children. All of us have family members that are not favorable candidates for raising children – yet those same family members may have that responsibility, even if it is against your wishes. Nobody likes to contemplate both parents dying simultaneously in a car accident, but if you fail to plan accordingly, your children’s future could be adversely impacted.

Some advice on how to choose a guardian can be found here, and include the following questions:

Whose parenting style, values, and religious beliefs most closely match your own?
Who is most able to take on the responsibility of a caring for a child — emotionally, financially, physically, etc.?
Who does your child feel comfortable with already?
Will your child have to move far away, and will that pose any problems?
Does the person you’re considering have other children? If so, would your child fit in or get lost in the shuffle?
Does the person have enough time and energy to devote to your child?

After you have made your decision, you must discuss the decision with the guardian, so that you can gauge that person’s willingness to perform the role. After selection, you must memorialize it in a legal document such as a will or trust. If you have life insurance or an estate, you can divide the duties between a guardian of the person and a guardian of the estate. Trusts are especially well suited to limiting the disbursements to children – such as providing only for the child’s health, welfare and education – while also protecting the assets in the trusts from the child’s creditors (what is called a “Spendthrift Trust”).

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A guardianship is appointed for juveniles whose parents cannot take care of their children anymore for any number of reasons, such as a physical illness, military deployment, drug or alcohol problems, or child neglect. In California, there are two types of guardianships, each of which is handled by the San Diego Probate Court.

Probate Guardianship of the Person: A guardian of the person is responsible for meeting the child’s basic needs, including protecting and safeguarding the child, and providing food, clothing, and shelter – as well as medical care and education.

Probate Guardianship of the Estate: A guardian of the estate may typically be provided for when a child has inherited a large sum of money or property from a deceased parent.The guardian will manage the child’s financial affairs until the child reaches the age of majority (18 years), and in many cases the surviving parent will assume the role.

Probate guardianships do not terminate the parental relationship, but may end when the parent can resume taking care of the child. Anyone may petition the court to be appointed as a legal guardian, such as an aunt, uncle, grandparent or friend of the family. Some parents may be surprised to learn that their child can petition the court to appoint a guardian. In addition, a parent can name a guardian for their children in the case of premature death by will, or if the parent has a terminal illness. In the latter case, the court may appoint a joint guardianship, so that the guardian may provide for the child while the parent is still alive, and then take full custody upon that parent’s death without further hearing.

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Elaine and William Murphy Sr. had two children, Murphy Jr. and Maureen. Murphy Sr. had a thriving law practice in San Francisco and an estate worth $2 million. Murphy v. Murphy, 164 Cal.App.4th 376 (2008). When Elaine became ill in 1991, Maureen returned to the family home to care for her mother. Elaine died in 1999, when Murphy Sr. was 74 years old. Perhaps in response to Elaine’s death, Murphy Sr. suffered a debilitating stroke in 2001. Murphy Jr. petitioned the probate court for a conservator of both Murphy Sr.’s person and estate, wary of concerns over his sister’s possible undue influence over his father.

Though Murphy Sr. consented to the temporary appointment of a conservator, he “’staunchly oppose[d]’ continuing the conservatorship thereafter.” Despite these objections, the court appointed a conservator over concerns of the father’s weakened state, that Maureen had been imprudently interfering with Murphy Sr.’s law practice, and because of a “considerable amount of dysfunction and conflict” within the family. Murphy Sr. was outraged that his son had instituted the conservatorship proceeding. Unbeknownst to the son, as the conservatorship proceeding was commenced, Murphy Sr. disinherited Murphy Jr., leaving him $1 and everything else to his daughter. The subsequent litigation turned on whether the holographic will and revocable living trust agreement disinheriting the son were validly executed because of the father’s condition. After the conservator’s appointment, the father moved to pull the estate out of the conservator’s grasp and into a living trust.

California codified the “doctrine of substituted judgment, which provides that a trial court may authorize the transfer of estate property that a conservatee would have transferred had he or she been competent to act.” Id. at 394, California Probate Code § 2580 et seq. Thus Murphy Sr.’s conservator could transfer the property into the trust if given court approval. At that substituted judgment proceeding, both the daughter and son must raise all claims or they will be later barred by collateral estoppels or res judicata. Ordinarily a will may not be contested while the testator is still alive. The rationale is that the testator can always change his mind before death. The twist here is that the testator is still alive at the time of the substituted judgment contest – so the court may not only glean his intent – but also bar further litigation after the testator’s death.

The elements for collateral estoppel or issue preclusion in California (the court did not analyze res judicata on the present facts) are: “(1) the issue is identical to that decided in the former proceeding, (2) the issue was actually litigated in the former proceeding, (3) the issue was necessarily decided in the former proceeding, (4) the decision in the former proceeding is final and on the merits, and (5) preclusion is sought against a person who was a party or in privity with a party to the former proceeding.” Murphy, 164 Cal.App.4th at 398-399. Because these elements were met in the present case, Murphy Jr. could only assert his undue influence claims once at the conservator hearings. His loss on the issue prevented him from asserting any future claim of undue influence, but it would not necessarily bar another beneficiary from relitigating the issue (element 5).

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A neighbor witnessed Michael Ray Jennison shoot probate agent and realtor James Magot twice in the head after a brawl involving the sale of a condominium. Magot was apparently hired by a San Diego probate lawyer to handle the sale of the property, but instead attempted to buy it himself through a competing bid against one of Jennison’s friends. Jennison inherited the condominium from his grandmother, who had cared for him since the age of 12.

Jennison, now 38, was apparently in the custody of his grandmother because his mother, an alleged alcoholic and methamphetamine user, physically and emotionally abused him – at one point breaking his jaw. Jennison’s grandparents isolated and belittled him, and his aunts described him as “socially inept, withdrawn and warped by his upbringing.” After his arrest, Jennison has been suicidal and apparently has had psychotic episodes in jail – including audio and visual hallucinations. This is an update to “San Diego Probate Dispute Turns Deadly.”

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For those looking to learn information about California Probate Court, Supervising Judge Aviva Bobb of the Los Angeles Probate Court gives real life examples of the practice of probate in her jurisdiction. Probate cases include living trust proceedings, conservatorships, guardianship, estate distribution, minors’ compromise, elder abuse restraining orders, petitions to authorize medical treatment and tuberculosis-detention proceedings.

Trust proceedings include those where the court is asked to resolve a trust related dispute, and where the court is asked to supervise annual accountings. Trust disputes often arise where the beneficiaries’ ask for more money, such as the William Randolph Hearst Trust. One such trust case heard by the court involves “management decisions regarding Seaport Village,” a popular tourist destination in downtown San Diego.

California conservatorships are appointed and supervised by the court, and are used when adults lack the mental capacity to make medical, shelter, or financial decisions. Although conservators are most often family members, the court may appoint a Public Guardian in certain cases. Bobb gives an example of the mother of a comatose businessman and the litigation that resulted between his mistress and wife.

California guardianships are appointed for minors whose parents are incarcerated, addicted to drugs, or who have left the country. Sometimes a guardian is appointed because the minor inherits money or some other type of benefit, such as life insurance proceeds.

California estate distribution is the majority of the probate court’s business, and involves administration of estates for people who die with or without a will (see advantages of a trust, which bypasses probate). In her own words, “the stories of how people prey on the elderly to take or inherit their assets defy any fiction writer’s imagination.” Trials usually involve undue influence, competency issues, and fraud.

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A California company has been sued for the unauthorized practice of law in several jurisdictions after selling living trusts over the phone to senior citizens. The Minnesota Attorney General initiated suit against two California companies – American Family Legal Plan and Heritage Marketing and Insurance Services, Inc., “for operating a ‘trust mill’ scheme through a direct mailing to senior citizens.” After the seniors would respond to the direct mailing, “an agent posing as an estate planner meets the senior citizen at home and sells the person a plan for $2,000 or more” regardless of the taxable estate or financial need for it.

After the initial meeting, a boilerplate trust would be drafted by a person over the phone that often would not account for assets and property that are part of the estate. Then an insurance agent “posing as a representative of the estate planning firm” would meet with the senior to sell annuities on a commission basis – the agent would “not be compensated for the trip unless annuities” were sold. The companies have also been sued by Pennsylvania’s Attorney General, banned by the Better Business Bureau in Pennsylvania, and ordered to halt the sale or marketing of estate planning products in North Carolina by a judge.

As described in Living Trust Disadvantages, a revocable living trust is not right for everyone. This blog keeps a page titled “Living Trusts: Scams and Misconceptions” for further reading. A licensed, experienced, and competent estate planning attorney in San Diego is in the best position to determine whether a trust is right for you. Licensed attorneys are subject to the discipline authority of the California State Bar as found in the California Rules of Professional Conduct. For more, David Goldman of the Florida Estate Planning Lawyer Blog maintains an updated list of the current scams and measures taken to fight the rising tide.

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“What happens if I die without a will or trust?” The answer is that a California Personal Representative will be appointed by the court to administer your estate. A “’Personal representative’ means executor, administrator, administrator with the will annexed, special administrator, or successor personal representative.” California Probate Code §58. The order of preference, by priority (not all inclusive) is: the surviving spouse or domestic partner, children, grandchildren, other issue, parents, and brothers and sisters. California Probate Code §8461.

Even if you have a will that names the personal representative for your estate, the probate court must still approve of your selection. If you do not have an instrument in place, the probate court may require that the personal representative post a bond in order to serve in the position, which could cost thousands of dollars. The bond requirements include a credit check of the personal representative’s net worth.

Duties and Liabilities of a California Personal Representative

The personal representative is required to sign an acknowledgment of receipt of the “Duties and Liabilities of Personal Represenatitive.” California Probate Code §8404. The personal representative is an officer of the court, and the acknowledgment (drafted by the state Judicial Council) advises repeatedly that “[a]n attorney is best qualified to advise you about these matters.”

Managing The Estate’s Assets: The duties include managing the estate’s assets and investments prudently (the “prudent investor rule”), that is with the care of a prudent person dealing with someone else’s property. Another rule familiar to estate planning attorneys is the prohibition of commingling estate funds. Money in the estate must earn interest and be kept in insured accounts, and an estate planning lawyer should be consulted before making investments. Additionally, “[y]ou should not spend any of the estate’s money unless you have received permission from the court or have been advised to do so by an attorney.”

Estate Property: A California personal representative must locate and take possession of all the estate’s property, determine its value (likely by court-appointed referee), and file an inventory and appraisal within four months of all the assets in the estate. At the time of the inventory and appraisal, the personal representative must file a change of ownership statement with the country recorder or assessor where estate property is located.

Notice to Creditors: The personal representative must mail a notice of administration to each known creditor within four months of appointment.

Insurance: In California, the personal representative is required to obtain and maintain adequate insurance covering the assets and risks of the estate for the entire period of the administration of the estate.

Record Keeping: You must keep complete and accurate records of each financial transaction affecting the estate, including money and property received, spent, and the dates of the transactions. These records will reviewed by the court.

Consulting an Attorney: The Judicial Council’s form expressly states that “if you have an attorney, you should cooperate with the attorney at all times. . . When in doubt, contact your attorney.”

Finally, the form warns that your actions as a personal representative are “governed by the law itself and not by this summary.”

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A New York City couple murdered in their home left several unsigned self-written wills as part of their legacy. The wills are likely invalid under New York Probate (and California) law, but that didn’t stop Mark Schwartz from drafting several provisions which may leave some relatives feeling bitter. Knowing that his brother “hopes to be in my will,” Schwartz stated, “well, here you are” before leaving him nothing from the estate. Schwartz then expressed his wish to be memorialized in a sea burial service in scuba gear, or in the alternative “perhaps a beach party with strippers.”

Schwartz’s wife was not to be outdone. She left $10,000 to a battered woman’s shelter in her first husband’s name. She also left only $1 each to her mother, father, two brothers and sister and requested they donate that dollar “to their precious church to whom they had a greater allegiance, than to their first child and sister.”

Had these wills been denied probate in California, their estate would have passed by intestate distribution, against their wishes. This means both Schwartz’s brother could take a share of the estate, as well as his wife’s parents and siblings, provided they survived. Thanks to the Wills, Trusts, and Estates Professor for highlighting the article.

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A California conservatorship, or probate conservatorship, may be brought on behalf of a person, an estate, or both. The person appointed is called the conservator.

Conservatorship of the Person: A conservatorship for a person (called the conservatee) is proper where that person is unable to properly provide for his or her personal needs for physical health, food, clothing, or shelter. California Probate Code §1801(a).

Conservatorship of the Estate: A conservator of the estate may be appointed for a person who is substantially unable to manage his or her own financial resources or resist fraud or undue influence. California Probate Code §1801(b).

Who May Nominate the Conservator?

Nomination By Conservatee: The conservatee may nominate the conservator either by petition of the court, or by a signed writing as long as the conservatee has sufficient capacity to make an intelligent preference in nomination.

Nomination by Spouse, Domestic Partner, or Other: The spouse, domestic partner, or an adult child, parent, brother or sister of the proposed conservatee may nominate a conservator in the petition or at the hearing on the petition. California Probate Code §1811. Although these proposed conservators are given a limited preference by the court, the selection of the conservator of the person or estate is solely in the discretion of the court, and the court is guided by the best interests of the proposed conservatee. California Probate Code §1812.

Who May File the Petition for Conservator?

A petition for the appointment of a conservator may be filed by any of the following:

(1) The proposed conservatee.
(2) The spouse or domestic partner of the proposed conservatee.
(3) A relative of the proposed conservatee.
(4) Any interested state or local entity or agency of this state or any interested public officer or employee of this state or of a local public entity of this state.
(5) Any other interested person or friend of the proposed conservatee.

What Information is Required In the Petition?

A petition for appointment of conservator must include information about the proposed conservator and conservatee, and state the reasons why a conservatorship is necessary, such as:

(1) The inability of the proposed conservatee to properly provide for his or her needs for physical health, food, clothing, and shelter.
(2) The location of the proposed conservatee’s residence and the ability of the proposed conservatee to live in the residence while under conservatorship.
(3) Alternatives to conservatorship considered by the petitioner and reasons why those alternatives are not available.
(4) Health or social services provided to the proposed conservatee during the year preceding the filing of the petition, when the petitioner has information as to those services.
(5) The inability of the proposed conservatee to substantially manage his or her own financial resources, or to resist fraud or undue influence. California Probate Code §1821. The appointment must be proven by clear and convincing evidence. California Probate Code §1801(e).

Advantages and Disadvantages of a Conservator

Naturally, the appointment of a conservator may cause anger and resentment between the proposed conservatee and those family members for the conservatorship, and those against it. The best way to avoid future issues is to create a California durable power of attorney for an advance health care directive or create a living trust, and a durable power of attorney for financial purposes.

Filed under: Estate Planning of the Rich and Famous, Probate, Probate Litigation, Will Contests | 1 Comment »

The general rule, discussed in detail below, is that a gift or donative transfer in a will to the drafter of the instrument is void, unless the drafter is related by blood, marriage, or is a cohabitant with the testator, or the instrument is granted an independent certificate of review by an attorney. California Probate Code §21350. But another exception is where the transfer is made in a will executed by a nonresident of California who “was not a resident at the time the instrument was executed, and that was not signed within California.” California Probate Code §21351(i).

Joseph Clementi Jr. was a resident of California at the time of his death, but was a resident of Pennsylvania at the time his will was executed in Philadelphia. Estate of Clementi, G039223. His friend and accountant, Richard E. Weisz, wrote the will which included a gift to himself of $100,000, and appointed Weisz as trustee of a charitable trust. Clementi’s estate was worth in excess of $3 million at the time of his death, and his niece and nephews sought to revoke the admission of the will to probate. The beneficiaries argued that since Clementi was a resident of California at the time of his death, the exception should not apply and the will should not have been admitted to probate. The court held that California Probate Code §21351(i) does not require the transferor be a non-resident at the time of death, only at the time of execution, and that the gift to Weisz was valid.

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Jack Carey, a prominent attorney in Florida, drafted a will for a 90 year old widower suffering from “senile dementia, cataracts, hearing loss, and depression” among other ailments, in which he named himself and his assistant the prime beneficiaries. The superior court held that the gift was void because of Carey’s undue influence over the woman.

In California, a donative provision for an attorney is void if that lawyer also drafted the will. California Probate Code §21350. An exception to this rule is if the lawyer is related by blood, marriage, or is a cohabitant with the transferor. California Probate Code §21351(a). Otherwise, the instrument must be reviewed by an independent attorney who counsels the client about the nature and consequences of the intended transfer, attempts to determine if the intended consequence is the result of undue influence, and signs an independent certificate of review. California Probate Code §21351(b).

Jack Carey was not related by blood, marriage or cohabitation with the widow, nor did he obtain an independent certificate of review. As highlighted in a recent Wills, Trusts, and Estates Professor post, Jack Carey’s gift to himself would raise a rebuttable presumption of undue influence in some states. If the will was executed by a resident and signed within California, the gift would be void at its inception.

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An article by Smart Money highlights 10 Things Millionaires Won’t Tell You, and here are some of the highlights:

The first is that the millionaire club is not as exclusive as it once was – nearly 10 million households qualify – double the number of 2002, largely due to inflation.

The average GPA of a millionaire is 2.9, and 59% attended a state university or college.

Money does buy happiness – depression is lower among the wealthy, and more income relates to higher life satisfaction.

Finally, an estimated 2 million Americans have unreported accounts offshore – and have income from foreign tax shelters (aka offshore trusts or asset protection trusts).

Not all tax shelters are illegal, but there is a difference between tax avoidance (taking all legal means to lower tax payments), and tax evasion (paying less tax than you are legally obliged to pay). Some of those shelters are undoubtedly in the latter category, which is probably why your rich neighbor won’t tell you about it.

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The better question might be what to do with the life insurance after you have purchased it. But more on that later. For now, the simple answer is that you should only spend what you can afford to pay, provided that the amount may sustain your family. In purchasing life insurance, the amount should reflect burial expenses, the number of years your family will need to be sustained, the annual net (after tax) income your survivors will need, the number of children (and their respective ages) planning to go to college, and other expenses such as new cars, weddings, home improvements and mortgage payments.

Thankfully, you do not need to do the calculations on your own, but several online calculators are available. It is probably best to choose the calculator wisely, and do the basic research into life insurance amount before you begin placing calls. One calculator that appears to be neutral (not sponsored by one of the many life insurance companies) is located on MSN Money.

Life insurance may present problems for your estate. It may increase the size of your taxable estate, thus leaving less to your beneficiaries and more to the federal government. The beneficiaries of the policy may be may be immature and unable to administer the funds properly on their own. Placing the life insurance policy in an irrevocable life insurance trust can decrease the size of your estate for tax purposes; allow a trustee to administer the funds properly to beneficiaries who might spend it unwisely; and break the lump sum into manageable payments. Trusts give the settlor the power to shape the distribution of life insurance proceeds from beyond the grave, and are a powerful method of estate planning in California.

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First, an A-B trust is only needed for married couples whose estates are worth more than $2,000,000, the current federal estate tax exemption (in 2008). If your estate is worth less than $2,000,000, then you will not owe federal estate tax.

The A-B trust works by placing both spouses’ property interests in trust while they are living. Typically, both spouses remain trustees and may revoke or amend the trust at any time before their death. Since the trust owns the property and they do not, the spouses’ overall estate is divided and smaller for tax purposes, but the spouses’ retain most of the same rights of ownership. The trust property is split and may be distributed into a survivor’s share, a marital deduction share (usually a QTIP Trust), and a non-marital share.

When the first spouse passes away, up to $2,000,000 of the assets are placed into a survivor’s trust. This trust typically provides flexibility to the survivor, and has provisions for the distribution of trust principal and income to meet the survivor’s needs. At the death of the survivor, remaining assets from this trust pass to beneficiaries tax free.

After the first $2,000,000, the next $2,000,000 is distributed to the marital deduction share. The marital deduction share remains accessible to the surviving spouse, but if the spouse chooses to use it, the proceeds may be subject to tax. If not needed by the surviving spouse, then upon the surviving spouse’s death the assets transfer from the marital deduction share tax free to the remainder beneficiaries of the trust.

Finally, assets that exceed the $4,000,000 limit are placed in a bypass trust. Assets placed in this trust are subject to tax, but may still be accessible to the survivor if needed.

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A San Diego probate dispute turned deadly when a local man who inherited a condominium allegedly killed a court appointed probate agent. Michael Ray Jennison inherited the condo from his grandmother, and the victim, James Magot, was hired through the court to handle the sale. But Magot made a competing bid against Jennison’s friend on the condominium, and when the three met, a dispute arose and Jennison and Magot got into a brief fight. Jennison then pulled a gun and shot Magot in the head, killing him instantly. The trial is expected to last for a couple more weeks.

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As highlighted in a recent Wills, Trusts, and Estates Prof post, parties to a lawsuit in Illinois are disputing a provision contained in a will described as the “Jewish clause.” The deceased “expressed his wish to disinherit any descendant “who married outside the Jewish faith.” Two grandchildren married outside the Jewish faith, and contested the clause’s validity. An Illinois appellate court has ruled that the restraint on marriage is void, but the parties have appealed to the Illinois Supreme Court.

Restraints on marriage contained in wills are generally void as against the public policy of promoting marriage. In California, the rule has been codified in Civil Code §710 which provides that “Conditions imposing restraints upon marriage, except upon the marriage of a minor, are void; but this does not affect limitations where the intent was not to forbid marriage, but only to give the use until marriage.”

In Feinberg’s case a trial would not be held on this issue, and the will clause would be defeated upon a motion for summary judgment or demurrer as a matter of law.

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