When making a will you may wish to impose conditions upon the gifts you make to the beneficiaries to your will. However, some types of conditions imposed may be void, may fail to take effect, or a beneficiary may be excused from complying with the condition. This article looks at some of the issues which can arise when imposing conditions.

Conditions against public policy

A condition may be void if it is “against public policy”, that is it is in the interest of the state that the condition should not be performed. The types of conditions that are against public policy have changed over the years as society itself has changed.

The Courts have held that the following conditions are against public policy:

• a condition inciting a beneficiary to commit a crime;

• a condition inducing the future separation of a husband and wife;

• a condition requiring a child to change their religion;

• an unreasonable restraint of marriage;

• a condition which would deprive a parent of the control of children.

Repugnant conditions

A condition may be void if it is “repugnant” to the interest given to a beneficiary or “repugnant” to or inconsistent with other gifts in or provisions of the will. A condition will also be repugnant if it is impossible for the condition to be performed.

A gift of capital to an adult subject to a condition that it is not to be paid to him or her until he or she reaches an age greater than eighteen is a common example of a repugnant condition found in wills. A condition of this nature will, however, be valid if the income is given to another person until the beneficiary reaches the specified age.

Uncertain conditions

A condition may be void if it is too “uncertain” to be enforced. A condition will be uncertain if the wording of the condition is too vague or if the wording is clear but a Court would have difficulty in applying the condition.

Over the years the Courts have held that the following conditions are sufficiently certain:

• a condition not to dispute the will;

• a condition against marriage with specified persons where the description is inaccurate;

• a condition against becoming or marrying a Roman Catholic.

The Courts have held that the following conditions are too uncertain to be enforced:

• a condition not to associate with specified relatives;

• a condition to retain or assume a testator’s name;

• a condition requiring a beneficiary not to marry any one not of the Jewish faith;

• a condition terminating a beneficiary’s interest in a house if the beneficiary is not residing there personally.

The Court’s discretion

The Court has the discretion to grant relief against a condition or against the forfeiture under a condition in circumstances where it would be unfair for a beneficiary to be expected to comply with a condition. A Court may grant such relief if:

• performance of the condition has been prevented by the executors or other interested parties;

• a beneficiary is unable to comply with a condition through no fault of their own;

• the condition is in the nature of a penalty.