Court backs conditions set in a will
A recent Supreme Court case highlights how a person making a will can legally stipulate conditions on those who are to benefit from their estate. A father refused to leave an inheritance to four of his children unless they converted from Jehovah’s Witnesses to Roman Catholic within three months of him dying. The will also said they’d miss out if they didn’t go to his funeral.
They went to the funeral but didn’t convert. As a result they were excluded from the inheritance.
The children went to court and argued the stipulation for them to convert was “against public policy”, that is, against a person’s right to freedom of religion. The court held that even if this were held to be true, it did not overrule the willmaker’s right to testamentary freedom – the right to decide what happens to his own property.
The court ruled that the stipulation to convert did not compel the children to do anything. They had the choice of converting and receiving the money, or not comply and not receive the inheritance.
The court acknowledged conditions in wills restraining freedom of religion are not favoured by the courts but held that in this particular case, testamentary freedom held greater weight.
Joshua Crowther, wills specialist at Stacks Law Firm, says this doesn’t mean the law will allow any condition to be put in a will.
“For instance, a clause saying ‘I give $10,000 to A but only if she smacks her children’ would be void as it’s a breach of public policy,” he said.
“However a clause saying ‘I give $10,000 to A but only if they become a lawyer’ or ‘I give $10,000 to A but only if they become a Muslim’, so long as this condition is possible, could be argued to be valid as they have a choice on whether to comply.”
Charitable gifts are not subject to the Anti-Discrimination Act 1977. If a willmaker wanted to leave money to a hospital on the condition only one race or religion of people were treated, it could be accepted by the court as legal. The difficulty for the hospital would be determining whether a patient belonged to a particular race or religion. They might challenge the conditions or refuse the donation.
Non-charitable gifts – such as the condition for inheritance in the court case – are not necessarily exempt from the Anti-Discrimination Act. Such gifts could breach public policy under the Act, but the current court does not seem to see it that way unless the gift impinges on parental rights and responsibilities of the person receiving the gift.
For more information, please see Can you put conditions in a will? Laws around conditional gifts and bequests in NSW.