Darryn Jensen, ‘The “Policy” That Invalidates Testamentary Conditions’

Whenever one person’s conferral of a benefit on another is subject to a condition that the conferee not be married to a particular person or to a member of a specified class of persons, the question of whether the condition is enforceable is said to be a question of ‘public policy’. This ‘policy’ question is fundamentally a question of whether enforcing the condition contradicts or undermines any of the norms concerning the conduct of married persons to which the law is committed. It is not a question of whether enforcing or not enforcing the condition in the particular case would advance a more general social goal of encouraging marriage and discouraging divorce. A principle of preserving the coherence of the law – that the law ‘refuses to give by its right hand what it takes away by its left hand’ – is the animating principle of both the marriage condition cases and the illegality cases.

Darryn Jensen, The ‘Policy’ That Invalidates Testamentary Conditions, Oxford Journal of Legal Studies, https://doi.org/10.1093/ojls/gqz014. Published: 15 June 2019.

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