Page 17 - Best Of Local Mag Apr24 Edition

It’s The Thought That Counts: Making Wills With Conditional Gifts

A person making a Will can distribute their estate to anyone they These considerations become especially relevant where a
wish and, generally, on whatever terms they deem appropriate. condition precedent requires something more significant than
However, a challenge arises when a testator intends to require a beneficiary merely attaining a certain age. For example, in
a beneficiary to do or not do a particular thing before they can Re Solomon (1946) a gift requiring the beneficiary to marry
receive their inheritance. This is known as a conditional gift. a woman “of the Jewish faith” failed as it was not sufficiently
specific. However in Hickin v Carroll (2014) the condition that the
A common example of a conditional gift is gifting part of your beneficiaries be baptised within 3 months of the testator’s death
estate to your child once they attain a certain age or only once was held to be valid – despite the fact that the beneficiaries were
FAMILY they attend university. In those circumstances, it is clear that practicing Jehovah’s witnesses.
the condition must be met before the benefit is received. This
LAW is referred to as a condition precedent. However, a gift will fail It is important to note that the law on conditional gifts does
entirely if the terms of the condition precedent are found by a not exist in the relevant succession legislation. Instead, the
Court to be void. framework governing conditional gifts is based purely on the
outcomes of previously decided cases. This means that the
When determining the validity of a condition precedent, the judicial approach to conditional gifts has the ability to change
Court will consider whether the condition: and adapt as societal ideals and norms continually evolve.

1. Is sufficiently specific; Certainly, there are clear risks associated with drafting Wills
2. Is impossible to fulfill (not merely difficult or improbable); or with conditional gifts. If you do intend to attach conditions to
WILLS 3. Offends public policy (for example, if the condition is illegal gifts in your Will, we encourage you to seek the assistance of
an experienced Wills and Estates solicitor to ensure that any
or discriminatory).
RETIREMENT AND conditions in your Will have the desired effect.
VILLAGES ESTATES Madeline Crnkovic, Law Student and Paralegal at Zande Law Solicitors, Suite 9, Norwinn

Centre, 15 Discovery Drive, North Lakes, is the author of this article, training in the area of
Wills and Estates.

The information in this article is merely a guide and is not a full explanation of the law. This firm
cannot take responsibility for any action readers take based on this information. When making
decisions that could affect your legal rights, please contact us for professional advice.

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April 2024 www.bestoflocal.com.au 17