Rul­ing from the grave: What con­di­tions can you place on gifts in your will?

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In Brief

Some peo­ple find it hard to ​‘let go’. In 1993, a res­i­dent of San Anto­nio in the Unit­ed States passed away, leav­ing his house and $30,000 to his wife. How­ev­er, this was not as warm a mat­ri­mo­ni­al ges­ture as it first appeared. The hus­band had includ­ed a clause in his will mak­ing receipt of the gifts con­di­tion­al on his wife smok­ing five cig­a­rettes a day for the rest of her life, in response to her dis­dain of his habit.

That par­tic­u­lar clause could not be upheld. Nonethe­less tes­ta­tors are gen­er­al­ly quite free to impose con­di­tions on gifts in their wills. In many instances these con­di­tions are sen­si­ble. For exam­ple, we often draft requests for gifts to be giv­en to a rel­a­tive when they reach a cer­tain age. 

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Lim­its on con­di­tion­al gifts

Courts are gen­er­al­ly reluc­tant to deny a per­son­’s tes­ta­men­tary wish­es. The courts will try to uphold both con­di­tions prece­dent (where an event must occur before a ben­e­fi­cia­ry can receive a gift) and con­di­tions sub­se­quent (where a ben­e­fi­cia­ry los­es a gift they have already received if an event lat­er occurs). A con­di­tion will not be upheld where:

1. it vio­lates a rule of law (most often because it is uncer­tain or impos­si­ble to satisfy)
2. it is con­trary to pub­lic policy

The Supreme Court of NSW con­sid­ered both points in Hickin v Car­roll & Ors (No 2) [2014] NSWSC 1059.

Hickin v Car­roll & Ors (No 2)

Patrick Car­roll (Patrick) died on 16 April 2012 hav­ing made his will on 15 Decem­ber 2011. Patrick was sur­vived by his four chil­dren and bequeathed gifts to them in his will, on the fol­low­ing con­di­tion:

​“sub­ject to and depen­dent upon them becom­ing bap­tised in the Catholic Church with­in a peri­od of 3 months from the date of my death and such gifts are also sub­ject to and depen­dent (sic) my chil­dren attend­ing my funeral”.

Patrick­’s ex-wife and the chil­drens’ moth­er was a prac­tis­ing Jeho­vah’s Wit­ness. All four chil­dren were bap­tised as Jeho­vah’s Wit­ness­es and Patrick remained staunch­ly opposed to their asso­ci­a­tion with the faith until his death. Whilst each child attend­ed the funer­al, none of them chose to be bap­tised in the Catholic Church. After the three month peri­od lapsed, one of the Chil­dren sought a dec­la­ra­tion from the Supreme Court that the con­di­tions in the rel­e­vant clause were ​‘void and of no effect’ and that the gifts were absolute gifts. After deter­min­ing that the rel­e­vant clause was a con­di­tion prece­dent, the Supreme Court had to resolve whether the par­tic­u­lar clause was uncer­tain, impos­si­ble to sat­is­fy or con­trary to pub­lic pol­i­cy.

Uncer­tain­ty
A con­di­tion prece­dent will not fail for uncer­tain­ty mere­ly because it is not com­plete­ly clear­ly expressed. The chil­dren argued that the rel­e­vant clause did not spec­i­fy a par­tic­u­lar Catholic denom­i­na­tion and that the con­cept of ​‘bap­tism’ was open to inter­pre­ta­tion. The Court held that it was clear that the chil­dren could have sat­is­fied the ​‘bap­tism con­di­tion’ by receiv­ing the Roman Catholic sacra­ment of Bap­tism.

Impos­si­bil­i­ty
The Court fol­lowed the long­stand­ing inter­pre­ta­tion of ​‘impos­si­bil­i­ty’ as mean­ing more than just ​‘dif­fi­cul­ty’ or ​‘improb­a­bil­i­ty’. Whilst the Chil­dren con­tend­ed that it would have been high­ly dif­fi­cult to arrange to be bap­tised in the spec­i­fied three month win­dow, the Court dis­agreed that it would be an impos­si­ble task.

Pub­lic Policy
The strongest argu­ment that the Chil­dren sub­mit­ted was that the con­di­tion was con­trary to pub­lic pol­i­cy to the extent that this should take prece­dence over free­dom of tes­ta­tion. They con­tend­ed that the rel­e­vant clause should either be void per se as a mat­ter of pub­lic pol­i­cy or, if not, con­tem­po­rary cir­cum­stances gave rise to an as yet unrecog­nised prin­ci­ple of pub­lic pol­i­cy. The Court dis­agreed with their sub­mis­sion. The Court ruled it was bound by the deci­sion in In Re Cum­ing; Nicholls v Pub­lic Trustee (South Aus­tralia) [1945] HCA 32, that held that a clause restrain­ing reli­gion was only con­trary to pub­lic pol­i­cy if it lim­it­ed the parental right to raise a child in a par­tic­u­lar faith. The clause here did not infringe upon the right of the chil­dren to exer­cise their reli­gion freely. The Court also not­ed that out­side the sphere of employ­ment, there is no gen­er­al pro­tec­tion under Com­mon­wealth law from reli­gious discrimination.

Should you use con­di­tion­al gifts?

We rec­om­mend think­ing twice before includ­ing quirky or pecu­liar con­di­tions in a will. Whilst Patrick­’s con­di­tion was upheld, in many instances the courts will be unwill­ing to uphold a con­di­tion on pub­lic pol­i­cy grounds. If you do wish to place a con­di­tion in your will, it is essen­tial that you speak to an expe­ri­enced solic­i­tor who can draft the con­di­tion effectively.