When owning property, one may harbor the thought that he may dispose of it as he sees fit. However, that individual must appreciate the historical derivation of our laws dealing with the right of ownership of property. If one were to go back to the roots of our common law, there was a time when property was owned by the crown and disbursed at the pleasure of the monarch. Gradually, laws evolved permitting ownership on a limited basis by individuals who were eventually given the right by the Statute of Wills to dispose of their property by will, and if they did not exercise that right, then the law provided for distribution through inheritance rights.
New York and other common-law jurisdictions, as crown substitutes, adopted the common law concerning the disposition of property, including limitations concerning such rights. In New York, such limitations include the rule against perpetuities and the right of election statute. If one does not execute a will, it is possible that the crown substitute, the State of New York, could receive one’s assets by escheat if one is not survived by designated distributees. Conceptually, the Legislature could repeal Article 3 of Estates, Powers and Trusts Law (EPTL), which grants one the right to execute a will, and eliminate intestate distribution as set forth under EPTL 4-1.1 and direct that all assets upon death cede to the State of New York. Undoubtedly, the legislators would be swept from office by the people if those rights were tampered with; but nonetheless, there are laws restricting one’s rights in the disposition of property. One of those limitations deals with in terrorem clauses, the right of an individual to set conditions on inheritance.
