As the U.S. Supreme Court put it, “The right of a testator to attach to a gift in his will any lawful terms he sees fit…is widely, if not universally, recognized.” Conditional bequests in an estate planning document stipulate that a particular beneficiary will receive an inheritance only if he/she meets certain conditions.
- The condition must be legal and not go against public policy (you can’t dictate that the beneficiary divorce his/her spouse or commit a crime).
- The time for performance must be clear.
- The condition must be capable of being carried out and of being monitored (how would you know if a person had quit gambling?)
- There must be a plan for unmet conditions (who gets the gift if the condition isn’t met?)
- The beneficiary must be a person or legal entity capable of appearing in court (can’t be a pet, for example).
Some common conditional bequests have depended on a beneficiary’s:
- Pursuing a particular profession
- Finishing a certain level of schooling
- Following a particular religion or not marrying outside a certain faith
- Taking care of a favorite pet
- Keeping the family surname in its original spelling
- Abstaining from alcohol or tobacco or drug use (these conditions present problems when it comes to monitoring the behavior)
Conditions in a will can be divided into two general categories, explains Trevor Todd of the notaries’ association in Canada.
- Conditions precedent make a gift contingent upon the happening of a specific event. Not unless and until the event occurs will the gift take place.
- Conditions subsequent make the gift contingent on the continuing of a particular situation.
Todd tells the true story of Reina Gagne, who died in Quebec at age 82, whose next of kin were eight siblings who were her nieces and nephews. In her will Reina stipulated that half her estate would be divided among those of the nieces and nephews who attended the funeral. Only one of the siblings came to the funeral. The disinherited seven went to court to argue that the executor had not notified them of the time and place of the funeral. The judge dismissed that complaint, saying it had been their responsibility to ask. Reina’s intent was to reward those who paid her that final respect.
Including conditional bequests in your will is one way to exercise control of the actions of survivors. You might think of such bequests as examples of tough love from the grave!
