Public Policy Limits on Wills – May a Will Condition a Bequest on a Beneficiary’s Obtaining a Divorce?

In the recent Fairfax Circuit Court decision of In re Connolly (Case No. CL-2018-0002347), the trial court had to decide the issue of whether a testator (will maker) may condition a bequest on a beneficiary’s obtaining a divorce from his current spouse. While a testator may write whatever she desires in her will or trust, courts, in some circumstances, have the authority to invalidate provisions as void against public policy. A court will generally not, on its own initiative, invalidate such provisions. Rather, an interested person may have standing to bring a suit to seek a declaratory judgment asking the court to invalidate the provision based on public policy reasons.

In this case, the testator (“Testator”) did not approve of the marriage of his son (“Petitioner”). Testator did not attend Petitioner’s wedding. The Testator provided in his will for the eventual sale of certain real estate and the division of the sales proceeds amongst certain beneficiaries, including the Petitioner. However, the will provided that Petitioner’s receipt of his portion of such funds was conditioned upon Petitioner not being married to his current spouse. If the Petitioner was still married to his current spouse when the house was sold, the will provided that Petitioner’s share would divided equally among his other named beneficiaries.

Petitioner brought suit to invalidate the clause on the grounds that it violated public policy. The bequest to Petitioner was clearly conditional upon (and encouraged) the son’s getting a divorce from his current spouse.

The trial court took up the matter and, in part, analyzed whether such a provision was void as against Virginia public policy. The trial court pointed out that there was no Virginia common law directly on point, however, there was strong precedent against wills containing prohibitions of marriage. Moreover, the trial court held that contracts encouraging divorce were also disfavored as against public policy. Ultimately, the trial court invalidated the provision of the will which conditioned the son’s bequest upon his being divorced from his current spouse. The trial court noted that such a provision, “absent an intent to financially protect the devisee, is as loathsome as an absolute prohibition on marriage and therefore violates public policy.”

Notably, this case may well be appealed to the Virginia Supreme Court. If the Virginia Supreme Court issues a written opinion, we will plan to post an update on this issue.

This case is a good illustration of how Virginia courts possess the ability to invalidate certain provisions of wills based upon public policy. There is not a known, exhaustive list of potential public policy bases upon which will beneficiaries may try to invalidate certain will provisions. However, if you have a case involving such a contested will provision, it is best to contact a skilled estate litigator.

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