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What happens when a will conflicts with a new law (a law made after the testator has died)?

Suppose I have been bequeathed the family farm and the testator specified that the farm must be run in accordance with how it was traditionally run (this is also how it was run when the testator was alive). Suppose that I then run the farm accordingly. But, after a few years, a new law is introduced (maybe something to do with waste disposal, living conditions for the animals, etc.) that conflicts with the deceased's wish that the farm be run traditionally.

What happens in this case? Is the will overridden by the new law?

David Siegel
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Natasha
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    Do you mean to ask about the case where the will says if do not comply with some condition you lose the farm and it goes to someone else? And the law forces you to not comply. – George White Jun 21 '22 at 17:00
  • I'm not really concerned with the consequences for the trustee, I was more asking whether the new law does indeed override the condition set out in the will. – Natasha Jun 21 '22 at 17:25
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    Isn't the whole "You will inherit X but only if you promise to do Y" a fiction from the beginning? – pipe Jun 22 '22 at 01:34
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    @pipe: Conditional bequests are a real thing, though courts can invalidate them if they are illegal (or if they are legal but "violate public policy.") – Brian Jun 22 '22 at 14:57
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    @Brian Sounds incredibly shady. "Mary inherits the house if she promise to always wear white." – pipe Jun 23 '22 at 20:38
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    @pipe: It's not always shady. E.g., one man placed his money in a trust for use to provide in-home care for his wife. He couldn't stop his wife's future guardian from placing her into a nursing home, but he could use a conditional bequest to ensure that his heirs were not financially incentivized to do so. – Brian Jun 23 '22 at 21:18
  • @Brian, this is a totally different thing. She doesn't inherit the money but the money are given to a contractor to manage them. She doesn't have the rights to get the money and do what she wants. In the other example, you become the owner. Then good luck taking that away from you. Maybe depends on jurisdiction. – akostadinov Jun 24 '22 at 08:36

3 Answers3

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The will is overridden by the new law. Suppose the owner had not died: then he would have to comply with the change in the law. When a person inherits property, they gain the right to that property which the originally had, and they do not gain any additional immunity to the usual obligation to obey the law.

user6726
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  • Hi! Thanks for your reply. Do you know if this aspect of the will (that it can be overridden by changes in the law) is documented in the definition of a will or is this kind of like a separate law regarding a will? – Natasha Jun 21 '22 at 17:27
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    It's a more general principle about law: in essence "You must obey the law", which is a many-millennia old principle. If a new law says "you may not burn trash in this county", then you may not burn trash even if you have burned trash previously. There are "grandfathering" exceptions, but these are expressly written into the law. "Practices" are not grandfathered, but "things" often are, so an existing structure made non-conforming under a new law may be allowed, as a pre-existing thing. – user6726 Jun 21 '22 at 18:06
  • @user6726 I think you're broadly right, and that doesn't deal with odd clauses in wills.

    For (extremely silly) instance "I leave all that I have to my nephew, provided that before wither reaches the age of 27 he marries his fourth cousin…" Whether or not it's reasonable, is that not a legitimate constraint?

    Before either reaches age 27, the local jurisdiction outlaws marriage between fourth cousins.

    Without choice, the cousins are prevented from fulfilling the will's terms.

    The law is clear; the apparent result clearly unreasonable… what happens?

     – Robbie Goodwin Jun 22 '22 at 23:42
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    @Robbie Goodwin I believe that in many US jurisdictions, any will provision requiring or forbidding an heir to marry a particular person or class of persons (such as a will requiring marriage to a person of a particular religion) are void as against public policy, and have been for quite some time, so your example does not work. – David Siegel Jun 23 '22 at 16:58
  • @DavidSiegel Remember, I labelled that example "extremely silly"? I hoped to illustrate the process, though the (extremely silly) content might also have mattered. Sorry "(extremely silly)" went by you.

    For better examples, drop the specific partner and consider a requirement to be married, or employed, or to have achieved (this or that) or not… Are they general enough to work for you?

    What mattered was that without choice, the new law prevented the cousins from fulfilling the terms of the will.

     – Robbie Goodwin Jun 23 '22 at 21:44
  • @Robbie Goodwin Yes I got ythay iy was silly. But what you and othes might not have known was that it was also unlawful. As to the more general case, the probate judge, or a judge would rule on whether, and if so how, the requirement can be modified. This will depend on the wording of the will, and local law. It may be that the heir cannot inherit, and the property goes to whatever back-up heir is named, or in the last resort, to the state. – David Siegel Jun 23 '22 at 21:49
  • @DavidSiegel Sorry. To the extent you thought my example unlawful, my explanation clearly failed.

    That judgement depends on the wording of the will and local law is part of the Question. Isn't the only point whether the judge should give preference to to the law as it was then, or as it is now?

    Your jurisdiction may have different rules; here in the UK, it's an over-riding principle that new laws should not have retroactive effect, precisely because "intent" matters.

    Does that not work for you?

     – Robbie Goodwin Jun 23 '22 at 22:12
  • @RobbieGoodwin, the scenario you propose or a similar one does not need a law to have retroactive effect to prevent the nephew from inheriting. If the nephew has not already fulfilled the provisions for his inheritance when the law comes into effect then it simply becomes unlawful (and perhaps altogether impossible) for him to fulfill them in the future. That the uncle might have written the will differently had such a law already been in effect is not relevant. – John Bollinger Jun 23 '22 at 22:25
  • @Robbie Goodwin, I don't in most cases approve of retroactive laws,ans neither does the US legal system. But the current law generally controls current conduct, and an old will is not usually a good excuse to do otherwise. Either a judge allows the will to be modified, or the condition can't be complied with and the property goes to whatever backup the will specifies, or to the state if none is available. – David Siegel Jun 23 '22 at 23:48
  • Gosh, Guys. If it's obvious that the new law always takes precedence, how is it not equally obvious that the Question was, is and will always remain pointless?

    Otherwise, what are you saying?

     – Robbie Goodwin Jun 26 '22 at 20:11
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When there is "dead hand" control of something, the people living in the present have to comply with the law (although some land use regulations and some tax treatments are indeed grandfathered), and the terms of the long term obligation can be "reformed" by a court to be consistent with the new law, if possible.

If the gift is charitable, the doctrine that authorizes this is called the "cy pres" doctrine and the charitable purpose is revised in a manner as consistent with the original intent as feasible. For example, if you make a charitable trust for the Boy Scouts and the Boy Scouts cease to exist, a court authorizes you under this doctrine to substitute another beneficiary with a similar purpose, perhaps, for example, the Boys and Girls Club. What is most similar is based upon testimony about the testator's intent in making the gift, if available.

In the case of an easement or covenant, it is usually just called reformation of the provision. In the farm case, someone might have the trust reformed to state that the farm must be managed with a goal towards maintaining traditional methods to the extent feasible to do so.

If reformation is simply impossible (e.g. a covenant mandating racial discrimination), then the person subject to it can get a declaratory judgment that the provision is void.

And, if there is no longer any purpose for keeping a trust arrangement in place, a trust can be terminated entirely.

The legal process of procedurally carrying out these tasks varies quite a bit from jurisdiction to jurisdiction. The Uniform Trust Code adopted by a number of U.S. states, for example, sets forth a fairly easy standard for reforming trusts, while the common law rules for doing so are more onerous.

ohwilleke
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  • Interesting example that a covenant mandating racial discrimination could be declared void - what would happen to the assets of the trust in that case? If there is no alternative "manner consistent with the original intent" that complies with the law, do the trustees personally get to keep the money? – kaya3 Jun 22 '22 at 23:52
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    @kaya3 The trust could continue free of the covenant if possible. For example, the trust might provide that the property may be rented to white tenants and the reformation would allow it to be rented to anyone without the covenant. Such covenants are sadly rather common, so there is well settled law for invalidating them. – ohwilleke Jun 23 '22 at 00:00
  • +1 props for real world examples (IE: rent restrictions). Never would have considered that. – WernerCD Jun 23 '22 at 17:23
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    @kaya3 There was a well-known case in Philadelphia a few years ago (the Barnes trust). The will required that an important collection of pictures be kept in a particular building, never sold, & be made available to art students and scholars. But the trust ran out of money. A judge permitted the trust to sell some pictures, move to cheaper quarters, & sell the building, although each of these was against specific provisions in the will. The judge held that making the collection available & keeping it together (as much as possible) was the prime purpose, & that all else must yield to that. – David Siegel Jun 23 '22 at 17:57
  • Are there any examples where the "prime purpose" was something that became illegal, and a judge concluded that there was no legal way for the trust to continue doing anything sufficiently consistent with its founding intent? – kaya3 Jun 23 '22 at 19:32
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    @kaya3 In such a case I believe the property goes to the state if the will does nor provide an alternate destination. But judges try hard to find some way to save part of the purpose. I read of a case a few years ago whern the specified purpose was to create a whites-only park. The will was very intense about the "whites only" part. But since that could not be done legally, the judge decided that just making a park satisfied at least part of the purpose. – David Siegel Jun 23 '22 at 21:56
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    @kaya3 "and a judge concluded that there was no legal way for the trust to continue doing anything" Probably, but I can't recall ever seeing a case where that happened. It is almost always possible to go to a greater level of generality or to meet part of the purpose. Contrary to DavidSiegel's suggestion, however, usually, if a trust were to completely fail, it would usually go to the people who would have inherited from the donor had the trust never been established, or would revert to the donor if the donor was still alive. – ohwilleke Jun 23 '22 at 22:27
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It depend on what the law system is in the country where the property is located.

Most countries are in one of three classes:

  1. Codex system (civil law system) - all cases are analyzed and new written laws typically overwrite system. Sometimes codex system will deal with future events, for example now the EU has already written in its laws, that combustion engine vehicles will be banned in 2030, and they have written a multi-step transition to those new rules. And usually in codex systems, a ministry, or a government department, or in EU the European Commission, writes exact rules, sowing how to interpret the law against most probable cases.
  2. Precedent system (common law system), in UK/US (and other countries with law derived from this tradition) - all new laws examined by judges, when happen conflict of law and life. And only after Supreme Court decide, created precedent, when law examined against real life case.
  3. Countries which recognize external law system as supreme authority for this class of cases. Examples: Singapore recognizes the British courts as the supreme authority for civil cases; many countries recognize European Court of Human Rights.

So only for the most probable cases does there exist a simple answer about how a new law will work.

All difficult and ambiguous cases, will only got last answer from judge of Supreme Court, and before that happens, other judges may issue some limitations on property.

Sure, a Supreme Court ruling will happen only if there is a subject who will be enough stubborn and enough patient to deal with all the bureaucracy involved. For example, my friend sued against ministry in ECHR, and this took 8 years before the final resolution (positive for friend, but I think you understand, this is not profitable business, even considering, friend is not lawyer, and he wrote all the letters himself, for enjoy).

What mean under limitations, for example in Ukraine works law about heritage, that within 3 years after death of testator, anybody could claim their rights and court will consider it, and probably, will prohibit sale of property, before deciding (you could live there, and teh sales procedure will not work). After 3 years, case will not open, and no limitations will happen.

David Siegel
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Serge Sergeev
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  • In common law systems it is not the case that "all new laws [are] examined by judges" Only when someone brings a case challenging such a law, and not always then. Binding precedents can be creates at lower court levels than a supreme court in such systems. – David Siegel Jun 23 '22 at 17:51
  • David, this is exactly case. Only difference is that in Precedent system exists tradition, of examine new law by judges, but in Codex system, assumed, smart officials will write already complete law system, without flaws. But because people are not machines, and could make mistakes and miss important things, real laws are imperfect, even sometimes have just mistakes, and after court challenges, constantly made improvements. – Serge Sergeev Jun 23 '22 at 20:34
  • To be more strict, the Ukraine is in transition from soviet pseudo-state to complete independent country, and after 30 years of declaration if independence, we still cut fragments of USSR laws from our laws. It was not evil intent to save those evil fragments in laws, but we just was other people, without life experience, which we have now, so laws saved from soviet, because we know that they work. Now we know new things and write new laws from our current knowledge. – Serge Sergeev Jun 23 '22 at 20:48
  • In English, the legal system prevelant in the US, UK and related nations is not called the "Precedent system" but rather the "common-law system". The system usual in France, Germany and much of Europe is not called the "Codex system" but rather the "civil-law system". In one way it doesn't matter, but if you write in English about "the codex system" many people will have no idea what you mean. – David Siegel Jun 23 '22 at 21:33
  • When new laws are passed in the common-law system, or existing laws are ,modified, it is not the case that judges routinely examine or interpret them. A law may go for decades without such examination. Only when there is a court case in which the meaning of a law is important, and is disputed, is it normally examined. And that can happen to old laws as well as to new ones. – David Siegel Jun 23 '22 at 21:37
  • When law go for decades without such examination,this is bad law, because it is not need, it's just takes place on paper and in index, and slow down economy. This is especially the case for ex-totalitarian countries, where laws typically created not for real needs of people, but because voluntarism of leaders. – Serge Sergeev Jun 24 '22 at 00:49
  • "if you write in English about "the codex system" many people will have no idea what you mean"

    Sure most people have no idea, because they are not specialists and don't need to know so deep details of legal system HISTORY.

    But here subject is tied to this deep detail.

     – Serge Sergeev Jun 24 '22 at 00:51
  • Laws may go for a long time without examination by a judge because they are working well and there is no need for a change. And specialists won' I havew several shelves t know what you mean by "the codex system" because it's not called that! I have several shelves of books on law, and have answered over 2,000 questions here on law.se, and it is the first time i have seen or heard that term, see [tag:civil-law]. – David Siegel Jun 24 '22 at 02:13
  • I haven't heard of that terminology either and the fact that googling for "Codex system law" brings up virtually no results seems to support David's claim as well. – Voo Jun 24 '22 at 06:39
  • Voo, this is very old history. Great divide of law systems begin after Napoleon Bonaparte taken power and rebuilt France law system with few codex's (block of many laws in one). Before him, usual way was to modify separate laws. So some people named codex system, and for me this name better define things. – Serge Sergeev Jun 25 '22 at 20:33