Limits on Inheritance: Void conditions

Question 1

Malum Prohibitum

Answer 1

That which is prohibited by law, regardless to if we think it harmless or bad, it doesn’t matter. Only applies to personal property, or mixed personal and real property

Question 2

Malum in Se

Answer 2

That which is in its very nature, prohibited. Something that is inherently bad. Only applies to personal property, or mixed personal and real property

Question 3

What happens if you can find malum prohibitum vs malum in se

Answer 3

Some condition precedents can be saved

Question 4

Rules for gifts consisting of only real property

Answer 4

• If condition precedent and condition void for any reason at all whole gift fails
• If condition subsequent condition is void for any reason at all then condition void and gift valid

Question 5

Rules for gifts consisting of personal property or mixed (both real and personal)

Answer 5

• Condition precedent= void condition means void gift (3 exceptions)
• Condition precedent= condition void, gift valid

Question 6

3 exceptions for mixed/personal property condition precedent

Answer 6

(1) If the condition precedent is void for illegality, it will render the gift void, if it is malum in se. BUT if you can prove it is illegal and malum prohibitum, you can save the gift.
(2) if the condition precedent is deemed to be in terrorem
(3) if condition is void for reasons of impossibility

Question 7

In terrorem

Answer 7

A condition that is a mere threat to induce the beneficiary to comply w/ the condition, also known as an “idle threat.” The court generally ignores it.

Question 8

3 conditions that need to be met for finding of interrorem

Answer 8

1. Legacy must be composed of personal property, or both personal and real property.
2. Legacy must include a restraint on marriage, or prevents the beneficiary from disputing the will in court.
3. It must not be merely idle, i.e. there must be a gift over. – infers that a condition unaccompanied by a gift over reveals that the condition is a mere idle threat, that is not in reality a “condition” properly so-called.

Question 9

Re Kent

Answer 9

Facts: “if any person brings forward an action against my estate other than for clarification they lose their gift and it goes to residue”

Ratio: in terrorem because gift over provided, still void for public policy (stop people from executing statutory right). Condition subsequent so does not fail whole gift.

Question 10

Public policy

Answer 10

Allows court to either stop or void an otherwise lawful operation of the common law

Question 11

Restraints on marriage

Answer 11

• Main public policy issue

- Right to get married is constitutional, messing with marriage in will triggers public policy

Question 12

Re Muirhead

Answer 12

Clauses that prohibit a never married person from ever marrying are against public policy

Question 13

Re Hurshman

Answer 13

Facts: the will said “my property and estate to daughter provided she is not at that time the wife of a jew”. She was already married to a jew.

Ratio: clauses that attempt to break up a marriage are void

Question 14

Re McBride

Answer 14

Clauses that attempt to break up a marriage are void

Question 15

Re Hurshman and Re McBride condition precedent

Answer 15

But the court lamely gets around it by saying malum prohibitum even though not really

Question 16

Clauses on re-marriage

Answer 16

These are iffy, depends on if just trying to provide for them in widowhood

Question 17

Re Goodwin

Answer 17

Facts: gift to testators daughter in law provided she did not remarry but if she did gift to testators grandson

Ratio: This is okay because intention was to provide for her in her widowhood not to prevent her from remarrying

Question 18

MacDonald v Brown

Answer 18

Facts: devise to nephews but nieces share held in trust until she was widowed or divorced from present husband

Ratio: intention not malice to break up marriage because its a trust fund, you get income from it, another provision that said if this does not happen it goes to her children.