In the wake of Philip Seymour Hoffman’s death we encountered articles about the actor that are common when an individual dies unexpectedly under tragic circumstances. Tributes to the late actor’s work, as well as tributes to him as an individual, appeared throughout the news. Being in the estates field myself however, one news story in particular about a clause in Mr. Hoffman’s Will caught my attention.
The clause in question read as follows:
“It is my strong desire, and not direction to my Guardian, that my son, COOPER HOFFMAN, be raised and reside in or near the borough of Manhattan in the State of New York, or Chicago, Illinois, or San Francisco, California, and that if my Guardian cannot reside in any of such cities, then it is my strong desire, and not direction, that my son, COOPER HOFFMAN, visit these cities at least twice per year throughout such guardianship. The purpose of this request is so that my son will be exposed to the culture, arts and architecture that such cities offer.”
In the case of Mr. Hoffman’s Will it is clear that his desire that his son be raised in specific cities was only a wish, and that there will be no actual repercussion to either his son or his son’s guardian should his son not reside in one of the contemplated cities. While in Mr. Hoffman’s case it is clear that this stipulation is only a wish, this caused me to consider what would happen in the event that it was not quite so clear.
Should such a scenario occur, the first place that you would likely look to is whether there was a gift over in the event that the child did not reside in one of the contemplated cities. In the event that no gift over was provided, an argument could potentially be made that this condition was only precatory, and that much like an in terrorem clause that does not contemplate a gift over it should be of no force and effect.
In the event that a gift over was contemplated, the next argument that would likely be made would be that the clause in question was against public policy, and that any gift to the child should vest in them outright absent the restriction on where they may reside. Whether the court would be in agreement with such a position is still open for debate.
Thank you for reading.