Our legal system is designed to respect and uphold the wishes of testators, generally. The situation becomes complicated, however, when the testator’s wishes would have the effect of frustrating existing legal principles or running afoul of accepted public policy considerations. 

An example of this potential incompatibility in estates law can be found when reviewing conditional gifts. A conditional gift is one in which words are added to show that the testator intends the gift to be ineffective unless some specific event happens/continues. These situations are often referred to as “ruling from the grave” because most contentious conditions deal with events that are anticipated to occur after the testator’s death. There are two types of conditions:  

• conditions precedent: the condition must happen for the gift to take effect in the first place (causes a contingent interest to vest); and
• conditions subsequent: the gift is to take effect but terminate on the happening of the condition (causes a vested interest to revert).

The problem for testators is when the operation of their condition conflicts with the legal nature of the gifted property. For example, if a testator gives a person an absolute interest in property he or she cannot, at the same time, by imposing a condition on the gift, be allowed to deprive that person of any right recognized by law as part of the essential nature of an absolute gift. The condition is void as being repugnant to that interest. Similarly, a provision limiting the ability of the donee to divest themselves or otherwise limit their distribution of an absolute interest is repugnant and void.

An outright gift cannot be given with “strings attached”, requiring that the gift be used only in a particular way. Once the gift has vested, it belongs to the donee absolutely to use in any way he or she pleases and, if the donee chooses, in complete disregard to the directions as to its use.

Where a will imposes a condition precedent on a gift and the condition is impossible to fulfil, or the donee cannot obey because it is not in his or her power to perform the condition, the condition may or may not render the gift invalid depending on i) the type of gift (real property versus personal property); ii) if the testator knew of the impossibility; and iii) when the impossibility arose. 

An otherwise technically compliant condition may be found to be contrary to public policy and therefore void. Public policy considerations are subject to change as public opinions shift; however, conditions inciting the commission of a crime, or any act prohibited by law, an unreasonable restraint on marriage, or intending to deprive a parent of control over their children, are all examples of void conditions.

In summary, although conditional gifts are not necessarily void on their face, they do have the potential to be found void in many circumstances (even if they were otherwise valid at the time of drafting). This underscores the importance of speaking with an experienced lawyer about drafting legal conditions or about reviewing the interpretation of conditions if you happen to be administering a will that contains one. 

Thanks for reading!

Ian Hull & Marie Kazmer