Fisher Law LLC
November 8th, 2024
A will can be used to provide certain types of conditional gifts in Massachusetts. With that being said, it is generally not the best option for doing so.
A conditional gift is a bequest that takes effect only if specific conditions are met by the beneficiary. You may sometimes hear these referred to as a contingent bequest. First and foremost, it is important to emphasize that it is technically permissible to use a will to leave a conditional gift in Massachusetts. For example, you might leave a sum of money to your grandchild on the condition that they reach a certain age.
Massachusetts Law Requires Conditional Terms Be “Lawful and Reasonable”
While you have the freedom to set conditions on your gifts, Massachusetts law mandates that these conditions must be both lawful and reasonable. Conditions that are illegal, impossible to fulfill, or against public policy are considered void and unenforceable.
What is allowed? The specific circumstances of the case will always matter. Here are some general examples:
- College Education Requirement (Usually Allowed):
A grandparent may leave $50,000 to a grandchild provided she obtains a bachelor’s degree by age 25. That type of condition is generally considered to be lawful and reasonable because it encourages education. - Marriage Restriction Condition (Likely Unenforceable):
On the other hand, a condition that leaves money to a grandchild provided he or she only marries another person within the same religious faith will almost certainly be voided as a violation of public policy.
Trusts are Generally Far Better Estate Planning Tools for Conditional Bequests
A will can be used to provide certain types of conditional gifts in Massachusetts. With that being said, it is generally not the best option for doing so. These types of terms are at high risk of being contested in probate—especially if the conditions are somewhat complex. While wills can include conditional gifts, trusts are a far superior tool for this purpose. Trusts offer enhanced flexibility, control, and protection that wills simply cannot match. Trusts offer the grantor (the trust creator or maker) more control, more privacy, and they are easier to enforce with conditions.
