By Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a Freehold, NJ Estate Planning Attorney
I am asked occasionally by my older clients if they can insert a clause into their Will or Trust which requires the child/grandchild to adhere to their religion, which is very important to them. Is this legal? And if so, how can they accomplish this?
The answer is yes it’s legal, but practically speaking, not enforceable. I foresee several problems with tying their inheritance to religious observance. First, it’s difficult to legally define “adhering to our religion.” Does it mean attending religious services? How often? Are other behaviors required, like marrying someone of the same faith? Perhaps it means sending children to religious school? Tithing a certain amount of salary, savings?
I understand a client’s desire to incentivize grandchildren and children to do something that you believe is valuable and important. But, if they (children) are like most adults or emerging adults, they may resent your attempt to control their behavior from the grave. Human nature being what it is, the religious language you want to put in your will or trust could have the opposite effect, actually increasing the chances they will rebel against your values. You need to weigh this possibility, and the way in which you want to be remembered, against your commitment to your religion. Also, be aware that regardless of how well-drafted, a religious provision in your last will or trust might not stand up in court if one of your grandchildren challenges it. I think it likely the clause will be upheld but it’s just as likely it isn’t going to work in the secular world.
In my view, a non-legalistic approach would be better: Have a heart-to-heart talk with your child/grandchild to share your feeling and values. You can also include a letter to them as part of your estate plan, expressing your views and hopes.
To discuss your NJ Estate Planning matter, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at firstname.lastname@example.org. Please ask us about our video conferencing consultations if you are unable to come to our office.