Dead Hand Control: How Wills and Trusts Can Control Behavior

You may want to use your estate to influence your heirs in your absence. To a certain extent, this might be possible, but the process is delicate, and it requires well-designed structures.

By exerting what is called “dead hand control,” people may condition bequests in their legacies by framing bequests around required or forbidden activities. So, while you can do as you wish, you can’t expect everyone to be happy about it.

Disgruntled beneficiaries are sometimes quick to take their grievances to court. As a general principle, courts are inclined to deny provisions that could contravene accepted social norms or public policies.

For example, you cannot set up any of your beneficiaries in ways that would require them to perform illegal acts. You also cannot prevent them from marrying anyone, though in some cases, you may be able to enforce a narrower prohibition, such as marriage involving a particular faith or to someone of a specific ethnicity.

Ultimately, the outcomes of various probate cases always vary, and quite widely at that. Many details will impact the results, such as the jurisdiction in which everything is playing out. As the saying goes, the devil is in the details.

Bargaining from beyond

Provisions can often be manipulated, particularly when they are intended to achieve reasonable results. Any efforts to discourage beneficiaries from being lazy or attempting to alter what has been set up may appear fair on the surface.

However, a quick review of some probate judgments indicates that wills may be enforceable when they are designed to encourage positive habits. A major tip to keep in mind is to try making the goal relatively broad.

For instance, it might be allowable to require your nephew to graduate from college, but it would be too much to insist he attend Harvard or go to law school. Similarly, it would be appropriate to insist that your heirs not be convicted of a crime, although disinheriting an heir if he or she is found guilty of a trivial misdemeanor would not be.

You can have preferences and standards as long as they are not unrealistically strict. As another example, it would not raise eyebrows to insist that your beneficiaries vote, but you cannot specify that they vote for a particular party or a certain candidate.

Famous for setting demands that overstepped immensely, a woman by the name of Leona Helmsley stipulated that her grandchildren must visit their father’s grave twice per year. This in and of itself is not a duty that would be considered excessively onerous.

However, if she were to state that her grandchildren must allocate a certain number of hours visiting their father’s grave every week, then that might be considered as being over the top. Many testators will try to engineer ways to keep an elderly relative out of a nursing home, but those intentions may not necessarily remain intact as the testator originally intended.

However, courts will do their best to adhere to and uphold a testator’s wishes whenever possible. A prime example of this was when an Illinois dentist required that his grandchildren marry within the Jewish faith.

Although lower courts struck it down, the Illinois Supreme Court upheld the provision in 2009 on the basis that the values of the testator’s grandchildren reflected the values of the testator.

Avoiding trouble

What steps can you take to ensure that your wishes pan out? Here are a few suggestions that can assist you in setting your preferences up for success:

• Use a professional fiduciary, whether that be an executor or a trustee, even if it costs more money to do so.
• Draft your estate documents with no-contest clauses as a ploy to discourage disappointed beneficiaries. At the same time, make sure you leave any dissatisfied people just enough to make it easier for them to leave things as they are instead of trying to change the contents of the will.
• Avoid probate altogether by using trusts.

If you decide to rely on a trust, it is a good idea to make it flexible. Be sure to state that trustees should act in ways that reflect the beneficiaries’ best interest as well.

You may also want to include a statement of wishes, which is not legally binding but can help trustees as they work to adhere to your intentions. Trusts can be a powerful tool when it comes to maintaining your legacy or just your personal inclinations in general.

Circling back to Leona Helmsley, she famously left behind a trust fund for her Maltese dog, Trouble, valued at $12 million. Trouble ended up dying when he was 12 years old in human years, which is 84 in dog years.

Now, while your final wishes may be more run-of-the-mill than those of Helmsley, it is still imperative that you consult your attorneys to ensure that you create a suitable trust and allocate your estate in the best way. Legal professionals can assist you in properly drafting all pertinent documents, so contact your lawyer as soon as possible.