Volume 1999    Issue 4

Postumous Meddling: An Instrumentalist Theory of Testamentary Restraints on Conjugal and Religious choices

Jeffrey G. Sherman^*

In this article, Professor Sherman argues that testamentary con-ditions restricting the personal conduct of legatees should be prohib-ited. He begins the piece with a defense of testation as an institution, exploring the reasons why society permits testation at all. He rejects the economic arguments that the abolition of testation would upset the economic markets by altering property owners' investment decisions and would lead to government ownership of all property. Instead, he argues that since people desire the right to bequeath their property to their progeny, society should help them do so unless there are good reasons opposing the practice. Because it is offensive to aid the dead in controlling the personal choices of the living, Professor Sherman proposes that the law should not enforce testamentary conditions re-stricting conjugal and religious matters. Professor Sherman then compares current law and the results stemming from his theory. Although courts currently examine testa-tors' motives in deciding whether to enforce conditions inducing di-vorce, generally sustain conditions restricting religious choices, and deal with restraints against marriage in a variety of ways, Professor Sherman argues that none of these conditions should be enforced. Fi-nally, he discusses what consequences should follow a court's invali-dation of a condition in a will.

* Professor of Law, Chicago-Kent College of Law, Illinois Institute of Technology. A.B. 1968; J.D. 1972, Harvard. In writing this article, I have benefited enormously from the thoughtful advice and challenging suggestions of Kathy Baker, Jesse Dukeminier, Alan Gunn, Sarah Harding, Howard Helsinger, Steven Heyman, Richard McAdams, Sheldon Nahmod, Dale Nance, and Jeffrey Stake, and I am grateful to them for their interest and assistance. I must also thank my diligent and skillful student research assistant, William Brodzinski. I would also like to thank the Marshall D. Ewell Research Fund for providing sup-port for the writing of this article.