Conditions in a will

In your will, you don’t have to give gifts to people unreservedly. It is possible to give the gifts subject to a condition. However, while this may seem a useful tool, the law surrounding conditions in wills is very complicated, and conditions can be declared void for a number of different reasons. If this happens, the gift may fail (please see Failure of gifts for information on what happens when gifts fail) or the recipient of the gift may receive it without the condition being imposed.

The information below provides only a brief overview of when conditions will be void. The law governing when conditions will be invalid is quite complex, and so if you are considering using conditions in your will it is recommended that you seek specialist legal advice.

Impossible conditions

A condition may be void if it is impossible to perform. This may be either because it is inconsistent with other gifts in your will (e.g. you are giving away the same item twice) or because it will be impossible for the condition to be satisfied. For example, a condition that the intended recipient visit the moon before they receive the gift.

Uncertain conditions

If a condition is held to be ‘uncertain’ it may be void. There are two ways a condition may be uncertain for the purposes of a will.

Firstly, a condition is uncertain if it is too vague – it may be impossible to know what you intended. For example:

  • the beneficiary will inherit when they are ‘suitably’ married; or
  • the gift is on condition that that the beneficiary ‘takes up a profession’.

Secondly, a condition may be uncertain if it would be difficult for a court to enforce in practice. For example:

  • no one with the surname Smith may enter the property;
  • the recipient must use a particular surname; or
  • the recipient must not associate with certain people.

Public policy

Conditions may be void if they are ‘against public policy’. Broadly speaking, this means that the condition would not be in the public interest to enforce.

Exactly what this means has evolved over time as the views of society have changed. Because of that, it is difficult to set out the criteria the court will use to make its decision. However, all of the following have been judged by the court at one time or another to be against public policy, and would probably remain unenforceable now:

  • encouraging someone to commit a crime;
  • inducing the future separation of a married couple;
  • unreasonable restrictions on marriage;
  • depriving a parent of control over their children; and
  • requiring a child to change their religion.

The court’s discretion

It is possible to request that the court use its discretion to set aside a condition where it would be unreasonable for the beneficiary to be expected to comply with it. The court will accept such an application for a number of reasons:

  • A beneficiary cannot comply with a condition through no fault of their own.
  • Complying with the condition has been prevented by the executors, the testator, or other interested parties.
  • The beneficiary has complied with a condition, but not within the time required by a testator.

A further restriction on conditions is they cannot be a penalty designed to punish the beneficiary. If the court feels that the condition is a penalty in nature it can also use its discretion to set it aside.

What happens if a condition is declared void?

Precisely what happens if a condition is declared void depends on what the gift was, and what kind of condition it is.

  • If it was a ‘condition precedent’ of land or property, then the gift fails, and the property will become part of the residuary estate. See Residuary estate for more information about what then happens to the gift.
  • If it was a condition precedent of personal property, the gift may still be upheld – depending on the circumstances.
  • If it was a ‘condition subsequent’, the condition is removed, but the gift may still be given.

A condition precedent is a condition that must be satisfied before someone is entitled to receive.

A condition subsequent only takes effect after they have received the gift, so that if they stop fulfilling the condition they will forfeit the gift.

The distinction between the two kinds of condition can be quite technical in practice, and so it is best to obtain specialist legal advice to ensure you fully understand the possible consequences.