What is a Conditional Will?
In a nutshell…Do you want to marry outside of your family’s religion? Drop everything and travel the world solo indefinitely? Can’t quite quit smoking… well then there’s a potential you could be saying goodbye to your inheritance!
Basically a conditional Will is one which depends on the occurrence of some uncertain event before it becomes operative. Some conditions are permissible and may be enforced by the court, and others are simply considered far too peculiar and will not be upheld.
Although Courts are generally reluctant to deny a person’s testamentary wishes, a condition will not be upheld where:
- It violates a rule of law because it is
- uncertain or
- impossible to satisfy
- It is contrary to public policy
The Supreme Court of NSW considered both of the aforementioned elements in Hickin v Carroll & Ors (No 2).
The deceased included in his Will conditional gifts to his children which would take effect on the basis of them first attending his funeral and second being baptised in the Roman Catholic Church within three months of his death. The deceased’s children were practising Jehovah’s Witnesses and attended his funeral, but refused to get baptised.
The children attempted to argue that the relevant clause of baptism was ‘void and of no effect’, resulting in the gifts becoming absolute. The Supreme Court then had the job to resolve whether the particular clause was uncertain, impossible to satisfy or contrary to public policy.
The court determined that the clause was neither uncertain nor impossible. This being that the language of the condition was clear enough, and impossibility must mean more than just difficulty or improbability. A baptism within 3 months although difficult, would not have been impossible to arrange.
The strongest argument that the children submitted was that the condition was contrary to public policy to the extent that this infringed on their freedom of religion. However, the court disagreed and ruled 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.
As a result, the court upheld the validity of the conditional gifts and the children missed out!
The Take Away
Conditional gifts are not impossible to uphold even if slightly peculiar…but the more peculiar, the more difficult it will be to uphold such wishes due to the element primarily of public policy.
Just because in this instance the courts let the Mr Cumming rule from the grave, it doesn’t mean that will be the case for all. Thus, if you’d like to Dispute, Contest or Challenge a will with a conditional gift – get in touch with Hentys Lawyers and together we will assess the certainty, possibility and public policy of the clause.  NSWSC 1059  Re Cumming; Nicholls v Public Trustee (South Australia)  HCA 32