Can I Leave Conditions in My Will?

When drafting a last will and testament, many people wonder if they can impose specific conditions on their beneficiaries. If you have ever thought about stipulating that a beneficiary must reach a certain age, achieve a milestone, or fulfill another requirement to inherit, you are not alone. This question is often raised by those who wish to retain some level of control over how their estate is distributed after their death. Let’s explore what conditional gifts in a will entail, their legality, and how to ensure that your wishes are followed.

What Are Conditional Gifts in a Will?

A conditional gift in a will refers to an inheritance that is only given to a beneficiary if they meet certain conditions specified by the will maker. These conditions can range from achieving personal milestones to maintaining certain behaviours.

Examples of Common Conditions

Some of the most common conditions set out in wills include:

• Age requirements – A beneficiary may only inherit once they reach a certain age (e.g., at 25 instead of 18).
• Marriage or relationship conditions – A gift might be contingent upon the beneficiary marrying, staying married, or even remaining in a specific relationship.
• Educational or career milestones – A beneficiary might need to graduate from university or complete a professional qualification before receiving an inheritance.

In the context of NSW law, conditional gifts are often evaluated based on legal precedent. While they are permissible, the court must determine that the conditions are clear, possible to fulfil, and not contrary to public policy.

Are Conditional Bequests Legal in Australia?

Under Australian law, you can legally impose conditions on gifts in your will, but there are limitations. Generally, courts will uphold a conditional bequest as long as:

• The condition is not in violation of the law.
• The condition is possible to fulfil.
• The condition does not contravene public policy.

For instance, the NSW Supreme Court case Hickin v Carroll & Ors (No 2) [2014] involved a will that required the testator’s children to convert to Roman Catholicism within three months of the testator’s death in order to inherit. In this case, the court ruled that the condition was valid because it did not violate public policy, despite the religious nature of the condition. However, conditions that are considered unreasonable or discriminatory might not be enforceable.

Examples of Conditional Bequests in a Will 

1. Education or Career Milestones
   A common example of a conditional bequest in a will might be leaving a sum of money or an asset to a child or grandchild, but only if they graduate from university or achieve a certain academic qualification.
2. Marriage or Relationship Conditions
   Another example could be leaving property to a son or daughter, with the condition that they must marry by a certain date, or that they must remain married for a specific period.
3. Age Restrictions
   A testator might specify that a beneficiary will only inherit when they reach a certain age, such as 25 rather than 18. This is often used as a means to ensure maturity before an inheritance is received.These types of conditional gifts are often crafted to encourage certain behaviours or achievements, but it is important that they are clear, specific, and achievable.

Challenges and Risks of Setting Conditions in a Will 

While conditional gifts offer control over your estate, they come with several risks:

• Legal Disputes: Family members or beneficiaries may challenge conditions they find unreasonable, unfair, or unclear.
• Enforceability: If the conditions are too vague or difficult to fulfil, a court may find them unenforceable, leading to a dispute over the distribution of your estate.
• Practicality: Conditions that rely on future circumstances may be difficult to implement. For example, a beneficiary may become ill and unable to complete their studies, or a couple might divorce before fulfilling a marriage-related condition.

Consulting a legal expert in wills and estates can help mitigate these risks by ensuring the conditions you set are both realistic and enforceable.

How to Ensure Your Conditions Are Enforceable

To make sure that the conditions you set in your will are enforceable, here are a few tips:

• Clarity: Be clear and specific when outlining the conditions. Vague terms can lead to disputes.
• Consult a lawyer: Work with an experienced wills and estates lawyer to draft your will. A legal expert can ensure that the language used is precise and that the conditions are legally valid.
• Realistic Conditions: Avoid setting impossible or overly difficult conditions. If a condition is too hard to meet, it could be contested in court.

By consulting with legal professionals, such as the expert wills and estate lawyers at Owen Hodge Lawyers, you can safeguard your intentions and ensure your estate is distributed according to your wishes.

Alternatives to Conditional Bequests

If you’re concerned about the practicality or enforceability of conditional bequests, there are alternatives to consider:

• Trusts: Setting up a discretionary trust in your will can give a trustee the authority to distribute assets based on the spirit of your wishes. For example, a trustee can ensure that funds are only used for certain purposes, like education or care.
• No conditions: Sometimes, simply leaving assets without conditions can be a more effective way to ensure your estate is passed on. This removes the risk of conditions being challenged or unmet.

A discretionary trust can offer a more flexible way to meet your goals without risking the complications of conditional bequests.

Seek Expert Guidance 

Imposing conditions in your will can be a useful tool to ensure your wishes are followed, but it requires careful consideration and expertise. Whether you want to leave an asset on the condition that a beneficiary achieves a certain milestone, or you wish to restrict how your estate is used, it’s essential to work with professionals who understand the complexities of wills and estates law.

The expert team of wills and estate lawyers at Owen Hodge Lawyers can help you navigate these complex matters and ensure that your will is legally sound and reflects your wishes. Contact us today on 1800 770 780 to discuss your estate planning needs.

In conclusion, while you can leave conditional gifts in your will, the conditions must be clear, achievable, and legal. It’s wise to seek expert advice to ensure your intentions are upheld and your estate is distributed smoothly.