Law of Wills, 2016A

5. Suppose that Congress required registration of handguns and assault weapons, prohibited sale
and provided that at the death of the owner the weapons became the property of the government to
redistribute. Would that be constitutional?
Class Discussion Tool
Janet executed a will leaving her house to her son, Terrance. The jurisdiction had a statute that
prohibited convicted felons from inheriting property if they still owed restitution for their crimes.
Terrance was convicted of armed robbery and sentenced to seven years in prison. He was also
ordered to pay $50,000 in restitution. When Janet died, Terrance had three years left on his sentence
and he had not paid any money towards the restitution. The state’s attorney filed a motion seeking
to have Janet’s house sold to pay the $50,000 in restitution. In the alternative, the state’s attorney
asked the court to attach a $50,000 lien on the house. Evaluate the constitutionality of the statute
and the potential court action.
7.2 The Decedent’s Right to Place Restrictions on the Right to Inherit
Since children do not have the right to inherit from their parents, they can be totally
disinherited. Nonetheless, the majority of persons who prepare wills tend not to disinherit their
children. Based on the particular circumstances, the testator may decide to place some type of
condition or restriction on the child’s right to inherit. Courts usually uphold those conditions unless
they require the heir to engage in an activity that is illegal, unconstitutional or against public policy.
Also, Courts will not enforce conditions that infringe on fundamental or constitutional rights. As the
next two cases indicate, factually similar cases can have different judicial outcomes
7.2.1 Some Restrictions are Unreasonable
Maddox & al. v. Maddox’s adm’r & als., 11 Grat., Va. 804 (Va. 1854)
1. A member of the Society of Friends, by his will, gives a legacy of a remainder after a life interest,
to his niece M, “during her single life, and forever, if her conduct should be orderly, and she remain
a member of the Society of Friends.” When M arrived at a marriageable age, there were but five or
six unmarried men of the society in the neighborhood in which she lived: And during the life estate
she married a man not a member of the Society of Friends, and by that act she ceased to be a
member of the society.
Held:
1. The condition is an unreasonable restraint upon marriage, and is void.
2. There being no bequest over, and no specific direction that upon breach of the condition the
legacy shall fall into the residuum of the estate, the condition is therefore in terrorem merely, and does
not avoid the bequest.
2. On a bequest of a legacy upon a condition requiring any religious qualification, the condition is
against the policy of the law of Virginia, and therefore void.
349