At de Groots we are all enjoying watching Kitty Flanagan’s romp through wills and estate law in the ABC show “Fisk”. Our Dr John de Groot also recently spoke with Richard Glover on ABC Sydney Radio about the possibility of a testator making gifts in their will conditional on certain requirements.
So, can you make gifts in your will conditional on certain things? Courts have the power to determine that a condition on a gift is invalid where it is found to be against public policy, uncertain or simply against other laws. The Court would be unlikely to require a beneficiary to have a vasectomy in order to receive a gift under a will!
However, there have been instances where the Courts have upheld certain conditions that might seem to be against public policy.
In Hickin v Carroll & Ors (No 2) [2014] NSWSC 1059, the willmaker required his children, who were all Jehovah’s Witnesses, to convert to Catholicism in order to receive their inheritance. Kunc J held that this gift was not void for being uncertain, impossible or against public policy and the children did not receive their inheritances.
Douglas J in Ellaway v Lawson & Anor [2006] QSC 170 held that a requirement for a child to not receive her inheritance until her current husband died or she divorced him was not invalid on public policy grounds.
While we won’t be taking lessons from Kitty on how to deal with clients, we do agree with her in that you should seek advice from a wills and estate lawyer, rather than drafting it yourself with a DIY will kit.
Kate Donnan
Solicitor
