Published on devrylaw.ca
By Colleen Dermody, September 2nd, 2022
A Will serves the function of expressing the testator’s last wishes. However, for public policy considerations, not all requests should be granted. While putting conditions on how the beneficiary uses or receives the gift is permissible, there are requirements testators must follow if the gift is to be legally acknowledged.
A condition precedent in the context of wills is a condition or occurrence that must occur before the gift can be acquired.
Examples of Valid Condition Precedents
- To receive the money set aside for them, the beneficiary must complete college within 5 years.
- The beneficiary must marry before obtaining the automobile left in the testator’s estate.
- The beneficiary cannot get the testator’s shares in Company X until they turn 22.
Conditions should be written in a specific way in order to give the condition a reasonable chance of being followed.
A gift cannot, among other things, impose an unreasonable restraint on the beneficiary’s ability to marry, require the beneficiary to commit a crime, or discriminate against others on the basis of race, religion, or nationality. There is no exhaustive list of voidable conditions. In most cases, testators cannot rule from the grave, meaning that if you leave certain assets or gifts for certain individuals, you cannot unduly restrict their use of them.
Colleen Dermody, Devry Smith Frank LLP
