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
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/The Law Firm, says
this doesn't mean the law will allow any condition to be put in
"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.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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If you are doing a Will, or you are the executor of a deceased estate, consider what taxes and duties could be payable.
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