Opinion
Can you put conditions in a will? Laws around conditional gifts and bequests in NSW
8th Jun 2022
Can I impose conditions in a will, stating that someone must do a particular thing before they can inherit my estate? What if I say they have to convert to Islam or Christianity within a week of my death or they won’t inherit a cent?
Is it legal to leave my farm or business to my son – but only if he keeps it going until he passes it on to his son? Or can I say in my will that my child will only inherit if they graduate from university? What if I set them another task, like living with a sibling they hate for a year or getting married within a month?
You can impose conditions in your will but there are provisos
A person writing a will (the testator) can set down conditions in their will as long as it doesn’t conflict with other laws, such as anti-discrimination or public policy.
Generally, a person cannot rule from the grave. However, there is no specific law governing conditional gifts in wills. The legal position is based on precedent decisions made by judges on cases relating to marriage, relationships, religion and preservation of property.
A prime example is the decision in Carolyn Margaret Hickin v Robyn Patricia Carroll & Ors (No 2) [2014] NSWSC 1059, which upheld the validity of a will that required four children to become Catholics within three months of their father’s death to receive their inheritance.
Ambiguous conditions in a will can be challenged
Conditions in a will that are not impossible to achieve, and are not uncertain or against public policy, would generally be acceptable. For example, leaving an estate to someone as long as they run a kilometre in under four minutes or play cricket for Australia would be impossible to fulfil.
A condition that is uncertain or ambiguous can be challenged. For instance, there was a case where a person left their estate to a charity, but only for the benefit of ‘white babies’: Kay v South Eastern Sydney Area Health Service [2003] NSWSC 292. The case held that the charitable gift was valid where the Racial Discrimination Act 1975 (Cth) and Anti-Discrimination Act 1977 (NSW) generally allow will makers to be ‘as capricious as they like’ (at [17]–[18]).
However, Young CJ in Eq said that the term ‘white babies’ could be void on the basis of its uncertainty – what is a ‘white baby’ nowadays? – and noted that in re Tarnpolsk [1958] 1 WLR 1157 Danckwerts J found that a gift to ‘a person of the Jewish race’ was invalid as the phrase was ‘impossible to give sufficient meaning to’ (at [20]).
Chief Judge in Equity Young pointed out that while the hospital was free not to accept the gift, a more pragmatic approach would be to accept the fund to benefit ‘white babies’ because it would simply mean that more of the general funds of the hospital would be available to treat non-white babies, so that all babies would benefit in due course – despite the testatrix’s racist intentions.
The judge said that because of the conclusion he reached on the principal point of whether the gift was against public policy, it was unnecessary to consider whether the term was void for uncertainty, so he upheld the gift.
When are conditions in a will acceptable?
Say, for example, a person could only inherit from a will after they completed a university degree. This would likely be acceptable, assuming the person has the ability and means to complete the degree.
However, if a testator left assets to someone on the proviso they look after a person or a pet, there is nothing to stop the beneficiary running off with the money once they have it.
One way to maintain some control over how your assets are managed after death is to set up a testamentary trust will. The trust might only allow access to the estate for certain things, such as paying expenses for the care of a person or animal. If the beneficiary breaches the trust, they can be sued by the trustee.
Please see Estate planning, wills and probate and the Law Society of NSW for more information.
This is an edited version of an article first published by Stacks Law Firm.
The ALA would like to thank Joshua Crowther for this contribution.
Joshua Crowther is a lawyer in the Taree office of Stacks Law Firm and an Accredited Specialist in Wills and Estates by the Law Society of NSW. He joined Stacks Law Firm in 2011 and is now the Practice Manager of a very busy wills and estates practice.
The views and opinions expressed in this article are the author's and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).
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