When writing their will, testators often include conditions or restrictions to control how their assets are bequeathed, but there are limits. They may be your assets, but you can’t impose any conditions you please and this can lead into a complex area of law.
“There are certain generally reasonable limitations on a person’s testamentary freedom,” says estate lawyer Susannah Roth. “When you’re talking about bequests or gifts under a will, there are sometimes limitations on those types of things that have to do with the way those things have been drafted or have to do with certain conditions themselves.”
Ideally, a valid gift condition is clear, legal, and possible.
In many cases, courts have disallowed conditional gifts due to uncertainty, impossibility, or being “contrary to public policy,” Roth adds.
More specifically, a conditional gift can’t require a beneficiary to commit a crime, discriminate against a religious or ethnic group, give up custody of a child or separate from their spouse. If a condition violates these standards, it could be awarded unconditionally.
Examples of problems that can nullify a conditional bequest:
Uncertainty: A condition should name names, detail specific amounts, percentages or boundaries, and state clear periods of time. For example, an Ontario father left his daughter annual payments “so long as she continues to reside in Canada.” Does that mean she can never leave Canada? Or “continues” for how long? The daughter contested that condition in court and it was voided for uncertainty.
Impossibility: If a gift depends on the beneficiary completing some task, it must be possible and within their control. For example, you could leave someone a house on condition that they live in it, or dictate that gifts only go to a beneficiary who attends your funeral.
Impossibility also applies if you leave money to a now-defunct organization or dictate wishes to establish an organization or trust, but leave insufficient funds to accomplish it.
Perpetuity: You can’t give a gift and declare it’s to be kept forever. In one case, a New Brunswick couple was left a piece of land on condition that they couldn’t sell or farm it “as long as grass grows and water runs." That condition was denied in court and they sold the land.
Contrary to public policy: a broad term, it does include restraint of marriage, but can also include other acts considered immoral, illegal, or contrary to public good. In a landmark 2014 case, a judge voided a New Brunswick man’s $250,000 gift to a U.S. neo-Nazi group, a prime example of a condition contrary to public policy.
Restraint of marriage: an offshoot of “contrary to public policy,” there are two types of restraint, although one is generally allowable.
General restraint is too broad or unlimited in scope. A condition saying something like: “I give $10,000 to my daughter as long as she never marries,” or “as long as she doesn’t marry a Muslim,” would typically be denied as general restraint. However, past court cases have upheld partial restraint, which could deny remarriage or marriage to a named person.
Some wills require a beneficiary to reach a certain age before inheriting, or perhaps reaching some other milestone, such as a graduation. These are allowable, but can be contentious. In one example, an Ontario man left gifts for his grandsons to receive at age 30, but a court decision reduced the valid age to 21, that being the age of majority at the time.
To avoid any dispute or nullification of your gifts, it’s advisable to keep your conditions reasonable, practical, and clearly stated.
“You want there to be no uncertainty as to what the condition is, how it can be fulfilled and what the standard is, so that there’s no uncertainty as to when the condition has been fulfilled,” Roth advises.
“You would want it to be something that could be fulfilled, nothing that is discriminatory or potentially void as contrary to public policy. You would want to have very clear consequences as to what should happen if the condition is not fulfilled, what happens to the bequest or legacy if the condition remains unfulfilled,” she adds.
Estate law can be complicated and contentious, with high stakes and often bitter disputes. Roth suggests enlisting legal help to draft solid conditions. Also, discuss your will with your executor and beneficiaries to ensure your wishes are clear and well known.