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Conditional Bequests

A testator is at liberty to draft their will to benefit whomever they like and to phrase these bequests according to whatever clauses they see fit. Sometimes, a testator will attach certain conditions to a bequest before a beneficiary can inherit. As such, if a beneficiary fails to meet the terms or requirements of a will, they will not receive or retain their bequest. This legal instrument allows the deceased to keep tighter control over their beneficiaries and their assets after their death but they are not without inherent problems. This article explains the nature of conditional bequests and the importance of ensuring that the conditions themselves are legally enforceable.

What Is A Conditional Bequest?

A conditional bequest is a provision in a will that distributes an asset to a beneficiary only under particular circumstances. The two types of conditional gifts are conditions precedent and conditions subsequent. Under a condition precedent, a beneficiary must satisfy certain conditions in order to receive the gift. For instance, a common condition precedent is that a beneficiary will only inherit when they reach a certain age. A condition precedent can be used to encourage a beneficiary to conform to the testator’s values. For example, a will may specify that a daughter receives a house upon her marriage, or a grandchild receives funds if they graduate from university.

A condition subsequent, on the other hand, is when a beneficiary receives their inheritance, but the asset is revoked if a specific event happens. For example, a condition subsequent might be that an adult child remains active in the testator’s faith in order to remain in possession of the family Bible.

How To Add A Condition To A Bequest

The wording of a conditional bequest needs to be carefully crafted to minimise the chances of the will being challenged. It is essential that an experienced solicitor draft any conditional clauses in the will, because if the terminology is not carefully considered, the outcome may not reflect the testator’s true wishes.

Is It A Good Idea To Make A Conditional Bequest?

A testator should consider carefully before making an unusual conditional bequest in their will. A testator does have testamentary freedom to make their will according to their wishes, and these types of conditions do give testators greater control over the administration of their deceased estate. However, courts are unwilling to uphold conditions that breach public policy.

It is not possible for a testator to predict the future circumstances and needs of their beneficiaries. If a testator makes a conditional bequest that can only be received under limited circumstances, it may be extremely difficult if not impossible for the beneficiary to inherit. For instance, a grandchild may have every intention of completing a course of study in order to receive their bequest but may fall seriously ill and be unable to continue.

An alternative to a conditional bequest is for a testator to establish a discretionary trust in their will. This option allows for a trustee to determine when the assets of the trust are disbursed and he or she can do so in the spirit of the testator’s wishes. The solicitors at Armstrong Legal can advise you on all the available options when estate planning.

Is A Conditional Bequest Legally Binding?

Courts are typically reluctant to deny a testator’s last wishes and will uphold a conditional bequest unless:

  • it violates the rule of law;
  • it is uncertain or impossible to fulfil; or
  • it is contrary to established public policy.

For a gift to be legally enforceable, the condition must not be in breach of public policy. For instance, a gift that is dependent upon a beneficiary divorcing their spouse would be very unlikely to be enforced as being contrary to public policy.

Some condition subsequent bequests are not binding because they are in conflict with another law. For instance, a testator might wish to leave a house to someone on the proviso that they do not sell the property, but once title to the property transfers to the new owner, there is no legal impediment to the owner selling the asset. The court may also overturn a conditional bequest if it is impossible to fulfil the requirement in the specified timeframe, but will not interfere if the request is merely difficult or improbable to fulfil.

Case Study

The validity of conditional bequests was considered in Hickin v Carroll & Ors (No 2) [2014]. In this case, the testator bequeathed gifts to his four children in his will, on the condition that they attend his funeral and be baptized in the Catholic Church within three months of his death. While all his children attended the funeral, they were unwilling to meet the second condition because they had already been baptized in the Jehovah’s Witness faith. After three months, one of the testator’s children applied to the court to void the condition of the will.

The court considered whether the condition precedent was uncertain, impossible or contrary to public policy. The children argued that the clause was uncertain because it was not specific enough as to the particular Catholic Church and the type of baptism. The court found this to be an unconvincing argument as the baptism condition could be satisfied at any Roman Catholic Church. The court also dismissed the children’s assertion that it was “impossible” to be baptized within the time limit. The court ruled that it was bound to follow existing precedent that clauses restraining religion are only contrary to public policy if they impact on a parent’s right to raise their children in a particular faith. The court also pointed out that there is no federal protection against religious discrimination except in regard to employment.

An experienced solicitor can advise you on the kind of conditional bequests that are legally binding. The contested wills team at Armstrong Legal can help if you want to include a conditional bequest in your will, or you want to challenge the conditions of your bequest. Contact our team or call 1300 038 223 without delay to discuss the merits of your case.

Dr Nicola Bowes

This article was written by Dr Nicola Bowes

Dr Nicola Bowes holds a Bachelor of Arts with first class honours from the University of Tasmania, a Bachelor of Laws with first class honours from the Queensland University of Technology, and a PhD from The University of Queensland. After a decade working in higher education, Nicola joined Armstrong Legal in 2020.

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