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The Limits on Conditional Gifts in Wills

The Limits on Conditional Gifts in Wills

By:

Mann Lawyers

Posted February 7, 2023

Testamentary freedom allows testators to “rule from the grave” by controlling the disposition of their assets upon death. As an exercise of this freedom, testators may choose to place conditions on any bequests made in their will, which the intended beneficiary must then satisfy to receive or remain entitled to their gift.

Testators may choose to leave conditional gifts for a variety of reasons and doing so is generally considered a legitimate exercise of testamentary freedom. However, there is a limit to this freedom and courts will not uphold conditions that are illegal, uncertain, or otherwise contravene public policy. Conditions that offend these principles will, if challenged by a beneficiary, be declared void by the court.

When the court declares a condition placed on a gift to be void, it will result in one of two outcomes depending on the nature of the gift at issue. Either the condition will be struck, allowing the beneficiary to receive the gift absolutely, or the gift will fail and the beneficiary will not inherit at all. Either outcome defeats the testator’s intention in creating the conditional gift.

Below are some types of conditions that, if challenged, may be declared void by the court.

Conditions that are Impossible

Courts will not uphold conditions that are impossible for the beneficiary to complete. While it is not necessary for the condition to be likely to occur, there must at the very least be some chance that the beneficiary can satisfy the condition. When determining whether a condition is impossible, the court will consider the context of the gift and the circumstances of the beneficiary.

Conditions that are Illegal

Testators cannot make an inheritance or gift conditional on a beneficiary engaging in illegal activity.

Conditions that are Uncertain

Conditions must provide clear directions so that estate trustees, potential beneficiaries, and the court can determine what is required for the condition to be satisfied. If the condition is ambiguous, an estate trustee may seek the court’s direction in determining whether the condition has been met. If the court cannot make such a determination because the condition is uncertain, the court will declare the condition to be void.

Conditions that Otherwise Contravene Public Policy

The doctrine of public policy grants the courts a wide discretion to void conditions that, while are not illegal, are inconsistent with public policy and offend core societal values. The ability of the courts to interfere with otherwise legal conditions based on public policy is a topic that has attracted much commentary and scrutiny in recent years.

While the types of conditions that contravene public policy may evolve alongside changing societal values, it has historically included conditions that place certain restraints on marriage, religious beliefs, or property rights. Recently, conditions that discriminate against protected grounds, such as race and gender, have also attracted the doctrine of public policy, though the extent to which the courts are willing to apply the doctrine of public policy to discriminatory conditions in wills remains unclear.

This blog post was written by Caitlin Gallant, a member of the Estate Litigation  team.  She can be reached at 613-369-0372 or at caitlin.gallant@mannlawyers.com.

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Caitlin Gallant

Caitlin Gallant

I am an associate practicing in civil litigation and a member of the firm’s estate litigation group. I assist clients with a broad range of estate litigation matters, including will challenges, power of attorney disputes, capacity disputes, guardianship applications, passing of accounts, and dependant’s relief claims. Before joining Mann Lawyers, I completed my articles as a judicial law clerk with the Ontario Superior Court of Justice in Ottawa, where I assisted judges with matters in estate, civil, criminal, and family law. Originally from Prince Edward Island, I obtained my Juris Doctor from the University of New Brunswick in 2021. During law school, I was actively involved in competitive mooting and served as an associate editor of the University of New Brunswick Law Journal. Prior to attending law school, I received my Bachelor of Arts in Political Science and Environmental Studies from Mount Allison University. I am a member of the... Read More

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