When people think about making a Will, they often picture a lengthy legal document filled with complicated language, lists of assets and instructions about who gets what.
But making a Will does not have to be boring. It can be an opportunity to reflect your personality, your relationships and the things that matter most to you.
Some people have certainly embraced that idea:
- Englishman Roger Brown left part of his fortune to seven friends, on the condition that they use it for an alcohol-filled weekend in a European city.
- Singer Janis Joplin left US$2,500 for her friends to throw a wake in her memory.
- Marvel Comics editor Mark Gruenwald requested that his ashes be mixed with ink and used to print comic books.
- Pringles inventor, Fred Bauer, reportedly wished to be buried in a Pringles can.
While these wishes may be unusual, they demonstrate that a Will can be about more than simply dividing up your assets. It can be an opportunity to recognise the people who are important to you and communicate the wishes that matter most to you.
But there is an important catch: creativity cannot come at the expense of validity.
A Will is a legal document, and your wishes need to be expressed clearly and in accordance with the law. An unusual or complicated request that is unclear or legally ineffective may create uncertainty for your executor and beneficiaries and potentially lead to disputes.
Any gifts expressed with a condition should be carefully considered in light of legal advice to understand whether such condition is legally enforceable.
If you wish to leave an unconventional gift in your Will or include particular instructions, there are several ways you can do so.
Memorandum of Wishes
A Memorandum of Wishes is a non-binding document that accompanies a Will and provides additional guidance to your executor and trustees.
Unlike a Will, it is not legally enforceable. This means you can use it to express your feelings, thoughts, reasoning or wishes regarding the provisions of your Will or the administration of your estate, without creating additional legally binding obligations.
A Memorandum of Wishes can therefore be a useful way to provide further context or guidance to your executor or trustees. For example, you may wish to:
- detail your wishes for your funeral;
- explain how you would like your beneficiaries to use their inheritance;
- provide guidance to the guardians of your minor children about how you would like your children to be raised; or,
- leave non-binding instructions regarding the care or ownership of your pets.
Including these directions in a Memorandum of Wishes allows you to communicate your expectations while keeping them separate from the legally binding provisions of your Will.
Conditional Gifts
You may wish to leave a conditional gift in your Will. This is a gift that is subject to a specified condition.
There are two types of conditions gifts:
- Conditional precedent: an event or action must occur before the beneficiary becomes entitled to the gift; and
- Conditional subsequent: the beneficiary receives the gift, but their entitlement will come to an end if a specified event occurs.
While conditional gifts can provide a way to reflect specific wishes, they must be carefully drafted. A condition may be ineffective if it is uncertain, impossible to fulfil or contrary to public policy.
The consequences can also differ depending on the type of condition. If a condition precedent is invalid, the gift may fail and form part of the residuary estate instead. If a condition subsequent is invalid, the gift may take effect without the condition needing to be satisfied.
Examples of Conditional Gifts
Courts in Australia have considered several unusual conditional gifts, demonstrating why careful drafting is important.
In the NSW Supreme Court case of Hickin v Carroll & Ors [2014], a gift was made conditional upon the Willmaker’s adult children converting to a particular religion within three months of his death. Whether the condition was against public policy was a contested matter. However, the Supreme Court deemed that restraining someone’s religion is only contrary to public policy if it limits the parental right to raise a child in a specific faith. Because the condition was held to be valid, the beneficiaries lost their gifts when they failed to comply.
An example of a failed condition subsequent gift occurred in the case of Hibbit v Ziade [2022] which concerned a gift of a residence and its contents to beneficiaries “in return for caring for my two cats”. It was argued that the beneficiaries would not receive the gift until the cats had died. The Court rejected that interpretation and found that the gift vested immediately, avoiding the practical difficulties that a deferred gift would have created.
These cases demonstrate that while conditional gifts can be an effective way of expressing testamentary wishes, the wording and practical effect of a condition matter. What may seem straightforward when written into a Will can become considerably more complicated when its meaning is tested after death.
Make it Personal – But make Sure it Works
Making a Will does not need to be a daunting or purely practical exercise. Whether your wishes are traditional, sentimental or a little unconventional, your Will gives you an opportunity to communicate what matters to you and make your wishes known.
The important thing is to make sure those wishes are expressed clearly and legally effectively.
Contact us to discuss all your wishes and how to put them into effect.
