X-Message-Number: 5507
Date: Sun, 31 Dec 1995 04:32:42 GMT
From:  (Garret Smyth)
Subject: Re: scorched earth wills

Re: scorched earth wills

John de Rivaz:
> > > I was told by a UK solicitor that it is illegal to insert clauses in
> > > Wills "denying people their rights"

Keith Lynch: 
> > This doesn't make any sense to me.  Surely you can put any condition
> > you like on your will.  To say that someone has the right to contest a
> > will is to say that the government may not forbid it.  It isn't to say
> > that you can't disinherit them for doing so, or that their friends can't
> > refuse to speak to them, or that their boss can't fire them.

J d R: 
> I think the solicitor meant that clauses disinheriting people completely 
> because they contested their inheritance would be set aside (ie disregarded) 
> by the court. Obviously such clauses would have to be determined by a court 
> as they would only be relevant if court action is involved.

I'm afraid the legal principal does make sense. It is one of those cruel-but-
fair things. You may not like government and the legal system and the idea of
equal rights before the law, or the practical reality of any of those, but it

is pretty fundamental that any individual should be able to go to law to redress
what they see as a wrong. The point of having the court is to decide if it is a
wrong or not. In some forms of contract law the parties can agree to a clause
denying the right to sue over an alleged breach of contract, but then there is

an arbitration procedure built in. This can be accepted by courts if the parties

knew what they let themselves in for before signing and even so, whatever system
of arbitration is used it should follow "natural justice" (I think!).

This just doesn't apply to wills. You can hardly blame a court for refusing to
accept as valid a clause trying to prevent someone going to court. If you can't
go to court you can't, in the eyes of a court, get any sort of redress for 
wrongs. You can't put a sign on your car saying "in case of accident, I only
pay compensation as long as you don't sue". Well, you could try. You could try
putting a clause in your will encouraging someone to commit murder.

Incidentally, unless the challenge to the will had been considered mischevious
by the first court, I would not give much for the chances of any employer 
being sued for unfair dismissal giving a defence that the ex-employee was
sacked for persuing their legal rights.

> In some 
> countries, (Switzerland?) people's assets must pass, by government decree, 
> to their relations in a fixed proprtion.

I've heard that this applies in France (hence all the small and picturesqe
but inefficient farms). A horrid thought strikes me - inheritance law
differs between Scotland and England & Wales. Does anyone know how?

> Yes, you can put anything you like in a will, it doesn't mean that it will 
> be acted upon. I had considered:
> 
> "If I am not placed into cryonic suspension, then I order that all my assets 
> be turned into money, that money used to buy gold and that gold to be 
> dissolved in the mixture of acids known as aqua regia, the resulting 
> solution to be neutralised and poured into the sea."

Whilst clauses preventing challenging wills are unacceptable, it would be
quite reasonable to make any inheritance conditional on your suspension -
then the whole will would have to be overturned in one go. As long as you
had taken care to do the will properly the main challenges would most likely
be that cryonics itself is unreasonable so inheritances would not require
it or that the deceased was not of sound mind and hence a previous will or
no will at all would be valid. It would be awful if opting for cryonic 
suspension was cited as evidence of insanity, however, as the years have gone 
on I have noticed an improvement in the general public's attitude over here
(Britain). I wouldn't like to be in British Columbia, though.

> Any other ideas for a scorched earth will would no doubt interest some on 
> this group.

A legal fund to help cryonics cases in general and especially ones that might
set precedents - perhaps created from bequests?

Garret

-- 
Garret Smyth

Phone:  0181 789 1045 or +44 181 789 1045


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