We are often asked to consult or co-counsel with attorneys who have unusual or complex cases they do not feel comfortable handling on their own. We have one colleague who handles only routine wills, trust and estates; whenever a matter threatens to turn into litigation, he comes to us. He recently asked us to co-counsel in a case involving a decedent who (he thought) had left no will; our client was the man’s only son and sole heir. Under California law, our client would inherit the entire estate (approximately $750,000) by intestate succession. The initial court appearance was to get the son appointed administrator of the estate so he could pay the bills, assemble the assets, receive the claims of creditors, and obtain a final order confirming him as the sole heir and beneficiary of the estate.

Just as the judge said ‘And you’ve confirmed there is no will, right?’ a lady stood up in the back of the courtroom, waiving a piece of paper, saying ‘Excuse me, excuse me, your honor, there is a will, I have it right here.’ She then produced a cocktail napkin, complete with an illustration of a martini glass and tiny bubbles, upon which was scrawled “I leave everything to Marilyn if she [specific sex acts described] one million times before I die.” It was signed by the decedent, and Marilyn said she had done what the will required and she now wanted the entire estate. A short conversation with our client revealed that Marilyn had indeed been the decedent’s girlfriend in a relationship that spanned over 25 years (during 10 of which Marilyn was married to another man and living in another state), the signature was that of the decedent, and the ‘will’ had been written about 1987. It was thus, at least on its face, a valid holographic will.

The trial judge, although an experienced probate practitioner, had never before seen a will which expressly conditioned a bequest on the performance of sex. He requested briefing whether the will could be admitted to probate; the issue was whether it violated the public policy of California to exchange sex for property in this manner. The court found the language “[specific sex acts described] one million times before I die” to constitute a condition precedent describing the circumstances under which the property would vest in Marilyn. Because she would exchange sex for property, the condition was in violation of public policy. The trial court determined the document was in essence a contract for prostitution, so it would not be admitted to probate; the entire estate would go to the son, our client.

But it doesn’t end there. Marilyn’s attorney decided to appeal the trial court’s ruling (a decision with which we would have agreed, had we been representing Marilyn). Although the chances were exceedingly slim, an appeal, properly done, would cost about $15,000; the reward, were the appeal to be successful, would be $750,000. The potential benefit justified the risk, even though the odds were long.

On appeal, there were two determinative issues: (1) Is this a conditional will? (2) If it is a conditional will, does the condition violate public policy?

A conditional will is one in which the gift is contingent upon the happening (or non-happening) of a specific event. The fact a will is construed as conditional does not mean it cannot be admitted to probate; however, if the condition is itself illegal, the will is invalid. We found no other reported case in which a will offered for probate was expressly conditioned only upon the provision of sexual services to the decedent. Perhaps this is because, like parricide under the Roman and Athenian law, it is so obviously improper that no legislation denouncing it need be established.

The only difference between a straightforward contract for sex and this will, was that here the monetary compensation was deferred rather than being paid at the time of the act; it was prostitution on the installment plan. California has a clear public policy against just such arrangements. It is well established that contracts in which the sole consideration is the provision of sexual services are void as against public policy.

Because the condition precedent was both unlawful and opposed to public policy, the attempted devise to Marilyn was void. While consensual sexual encounters between unmarried adults are not per se a violation of any public policy, giving validity to testamentary dispositions such as this one would validate the exchange of sex for property, even where the property is not received until death. The singular object of this conditional will was to establish the circumstances under which Marilyn’s sexual services would be exchanged for property. Whatever the nature of the relationship between our client’s father and Marilyn may have been, the sole requirement for inheriting the estate was that Marilyn have sex with him. The public policy against the exchange of property for sex does not become more palatable just because the compensation is not paid until one of the participants dies.

At the time of oral argument, we were trying hard to maintain decorum in the courtroom. The terms of the will had been mentioned merely as ‘this clause’ or ‘this provision’ without actually being recited. At one point the presiding justice said ‘I’ll bet the audience is dying to know exactly what this will says.’ Counsel for Marilyn said ‘That’s fine, I’ll just read it into the record.’ One of the other justices put his head down and said ‘Please don’t’, whereupon Marilyn’s attorney proceeded to recite the terms of the will, to the great enjoyment of the audience. The presiding justice noted ‘Just your average, Ozzie and Harriet type will.’ After a few moments of laughter seldom heard in the courts of appeal we were given the opportunity to respond to Marilyn’s attorney’s arguments. Ultimately the court of appeal agreed with our position and the entire estate was awarded to our client.

This outcome was particularly gratifying because our client had lived with and cared for his father for 12 of the last 15 years of his life, including a long period of recovery after hospitalization. Our client’s resources were extremely modest and this inheritance would go far to improving his family’s life. This case was also interesting because it was unique; our research revealed no case, in any state, in which a bequest had been specifically conditioned on the provision of sexual services by someone other than the decedent’s wife. The opportunity to become involved in unusual and challenging cases like this is a rewarding part of our practice in Ventura County.