Issue: Under Arizona and Illinois law, if a client wishes to include clauses in their pour-over will and revocable inter vivos trust providing that his/her children would immediately forfeit whatever interest he or she may have under the will or trust should he or she convert from one type of religion to another, is that enforceable under state and federal law?
| Area of Law: | Estate Planning & Probate |
| Keywords: | Will or trust; Religious beliefs or practices; Validity of restrictions |
| Jurisdiction: | Arizona, Illinois |
| Cited Cases: | 16 N.E.2d 123; 62 Md. 275; 31 A.2d 383; 156 N.Y.S.2d 739; 287 N.Y.S. 209; 118 A. 907; 393 U.S. 440; 171 P. 645; 339 A.2d 520; 107 N.W. 484; 19 S.C. 170; 124 N.E.2d 228; 60 N.E. 110; 130 A. 238; 38 A.2d 463 |
| Cited Statutes: | Restatement (Second) of Property § 8.1; |
| Date: | 03/01/2001 |
Although cases were found in ten different American jurisdictions where appellate courts had addressed this issue or one substantially similar, no case on point was located discussing Arizona or Illinois law. In addition, no federal court cases were found directly addressing the issue although several of the state court cases consider the validity of similar restrictive clauses under the federal Constitution.
Of the ten states in which courts have considered the validity of restrictions on religious beliefs or practices in wills or trusts nine have approved the restrictions at least in principle in one or more cases. See Delaware Trust Co. v. Fitzmaurice, 31 A.2d 383 (Del. Ch. 1943), modified on other grounds sub nom. Crumlish v. Delaware Trust Co., 38 A.2d 463 (Del. 1944 (testamentary provision establishing that trust income payable to individual as long as she observed teachings and faith of Roman Catholic Church upheld); Lasnier v. Martin, 171 P. 645 (Kan. 1918) (provision in will creating future estate in certain heirs if they had “remained good Catholics and good citizens” invalid for uncertainty, but court implied provision would be upheld if will had prescribed definite means of determining who lived up to qualification); Barnum v. City of Baltimore, 62 Md. 275, 50 Am. Rep. 219 (1884) (upholding trust restriction that grantor’s brother withdraw from the Roman Catholic priesthood as a condition of receiving trust income); Gordon v. Gordon, 124 N.E.2d 228 (Mass. 1955) (court upheld donor’s restraint on donee’s religious expression on […]