Conditional Gifts in Will
Conditional Gifts in Will
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Conditional Gifts in Wills

When a person writes a will, they are leaving their property to persons and entities of their choosing. These gifts are legally binding, in the sense that the beneficiaries get legal title to whatever property is left to them. A will cannot be used to compel someone to do something, however. One cannot have a provision in a will directing a person to give all their money to a charity, for example. If such a provision is in a will, a court will not enforce it.

However, the testator (the person making the will), within certain limits, can put conditions on their devises. For example, a will might leave a house to the testator's son, but only if he gives a certain amount of money to a charity. This is perfectly valid: the son does not have to give his money to charity if he doesn't want to, but if that is what he chooses, he doesn't get the house.

There are 2 basic types of conditions: conditions precedent and conditions subsequent.

A condition precedent is an event which must occur before the property goes to the beneficiary. For example, if a will reads "$5,000 to my grandson, John Doe, if he has graduated from law school by the year 2015, otherwise, to my sister, Jane Doe" is an example of a condition precedent: John Doe must graduate from law school by the year 2015 before he gets the $5,000. It is also an example of good estate planning. If there had been no deadline, the money would effectively remain in limbo forever. If there had been no deadline, and John Doe eventually graduated law school after 25 years or so, it may be impossible for him to enforce that provision of the will, as there might be nobody left alive against whom he can seek enforcement.

The deadline gives a reasonable amount of time for the condition to occur, but it also cuts off after a reasonable amount of time, and provides an alternate route for the money, if the condition is not met. The money is finally disposed of if John Doe graduates law school before 2015, or 2015 rolls around and he has not graduated law school.

Conditions subsequent tend to be more problematic. A condition subsequent is an event that occurs after the devise is made, and affects or invalidates the devise. So, a will might leave a piece of land to a person, provided that they never sell alcohol on the land. A well-planned will should include some other person for the land to go to if the condition occurs. This is valid, but enforcing it might be difficult.

Suppose the beneficiary takes the land, and starts selling alcohol on it after 30 or 40 years. This is a violation of the provision in the will, but it is not likely that there will be many people alive to seek enforcement. If the alternative beneficiary is still alive, they might seek enforcement of the condition. Of course, that person must also know that the condition has occurred.

While virtually any type of condition placed on a devise is legally valid (though enforcing it is sometimes a more difficult matter), there are some conditions which a court will not enforce. A condition requiring a person to change their religion will not be enforced, nor will one requiring the beneficiary to marry or refrain from marrying a particular person. However, courts have held that a condition requiring a person to marry someone of a particular religion is valid (in this case, a father left a large sum of money to his son, on the condition that he married a Jewish girl before a certain date. It didn't require him to change his religion, or marry a particular person, making it valid). A condition requiring someone to get a divorce is also invalid.

Ken LaMance is Associate General Counsel for LegalMatch.com - the easiest way to Find a Lawyer Online. Ken, a well respected San Francisco Attorney, has worn many hats at LegalMatch - from litigator to project manager. He has been instrumental in creating LegalMatch's Law Library, a powerful consumer resource for legal information with over 3300 articles on legal topics ranging from Child Custody to Criminal Law.

 
 
 

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