Lessons From Fisk: Limits on Testamentary Freedom

Lessons From Fisk: Limits on Testamentary Freedom

By Melinda Gustafson Gervasi

November 24, 2024

There is nothing in the world so irresistibly contagious as laughter and good humor.

― Charles Dickens, A Christmas Carol

Seeking a dose of laughter to offset the heaviness of world news and the increasingly shorter days of sunlight?  If you have Netflix, you may enjoy the Australian ABC comedy that first aired in March of 2021, Fisk.  Starring Kitty Flanagan as Helen Fisk, it is a witty comedy set in the law office of Gruber & Gruber, a small (shabby) suburban office that focuses on estate planning and probate. 

Recently I laughed my way through all six episodes of Season One.  I enjoyed them so much that I rewatched them with my husband.  With hyperbolic scenarios, the show explores accurate aspects of my everyday work life.  Today, and for the remainder of the calendar year, my weekly blog post will examine each episode and a take-away for the viewer seeking to learn more about estate planning and probate.

Day one at in her new position as an associate with Gruber & Gruber, Helen finds herself face-to-face. with her first client, Ruth O'Mallely.  Ruth explains that her mother died recently, and under the will, the estate is to be shared equally between Ruth and her brother Dean,....on one condition. Upon reading the will, Helen informs Ruth that the condition of the will cannot be enforced. For those interested in watching the series, I will avoid the specifics of the episode. The scenario is a perfect example of limits on testamentary freedom.

Here in the United States, estate planning and probate laws are written by state legislatures.  That means each state may have slightly differing rules and laws about this area, however, general concepts can be found from sea to sea.  In general, a court, when asked, will not validate a clause in a will that violates public policy.  The most common example of a will violating public policy would be a clause that either encourages divorce or limits marriage.  

As Helen explains to her client, just because a will dictates a condition on inheritance, does not mean a court would enforce it.  "My daughter inherits my entire estate if she divorces her husband" would be an example of a will provision a court would not enforce because it encourages divorce, which is viewed as contrary to public policy.  If you would like a more colorful and humorous example of this legal concept, check out the first episode of Fisk. 

Remember that a blog post is meant to spark thought and discussion, it is not legal advice.  Please consult an attorney in your state of residence for legal advice specific to your situation.  Thank you for reading, be well.