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What conditions can you include in your Will: Religion? Age? Marriage?  image

What conditions can you include in your Will: Religion? Age? Marriage?

Jul 27, 2017   |   Roxy Hart

People often wish to make gifts in their Will subject to conditions, such as the person receiving the gift:

  • attaining a certain age;
  • converting to a particular religion; or
  • marrying someone (or a particular person).

So when is it ok to include these conditions? The answer depends firstly on the type of condition imposed, and secondly on the way the pre-condition is drafted. It is important to know when a particular condition can be included, as the inclusion of invalid conditions can result in a court ordering that a condition be waived and a gift be given to a beneficiary without fulfillment of that condition.

Age

Generally it is acceptable to include a condition in a Will that a gift be subject to a beneficiary attaining a certain age, such as 21.

Religion

A recent court decision considered this issue, in which a gift was subject to a beneficiary converting to Catholicism and being baptized. The court found that as the condition was expressed clearly, not impossible to satisfy and was not against public policy, the condition was valid and the beneficiary had to meet the condition before they could get their gift.    

Marriage

Previously conditions requiring a person to marry another before they were entitled to their gift under a Will were void for public policy reasons. Should you wish to include such a condition, we recommend you seek legal advice as to how such a condition could be included.

Do you need a lawyer to help you with your property settlement?

During the separation process it is important to seek legal advice, even if the

 Practically you will most likely need a lawyer at some stage during the process – whether to give you advice or review your documents.

Even if you and your partner have agreed on all issues relating to the separation, such as who is to keep which property, frequently things can go wrong if you try and undertake the process yourself without any legal assistance. The reason for this is that there are many specific requirements that must be complied with for a property settlement to be valid. Property settlements usually occur by way of the parties entering into a binding financial agreement or obtaining consent orders.

Should the specific requirements that apply to each type of property settlement not be complied with, the settlement may be invalid and not legally binding. This means that some years after the parties come to an agreement, one party who feels that the settlement was not fair can come back and try to obtain more – essentially there is a risk that the agreement as to how the assets are dealt with is not final. An example of an issue that is often overlooked is that both parties generally need to get their own independent legal advice and obtain a certificate from a solicitor to this effect in order to for a binding financial agreement to be final (and binding). 

 There may be aspects of the process you can do yourself. If you are concerned about the costs of a divorce, you should speak to your lawyer about which parts of the process (if any) you could do yourself to minimise costs, and ensure your money is spent on the parts you cannot do.

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