Many people assume that inheriting a gift in a will is a fairly simple process: the will-maker leaves something behind and the beneficiary receives it. While direct gift exchanges like this are common, others come with strings attached. Conditional gifts are a type of will bequest where a beneficiary can only collect their inheritance if they satisfy certain conditions the will-maker has attached to it.
In BC, conditional gifts in wills are allowed, but that does not mean every condition will hold up in court. If a beneficiary or another valid party with a direct, vested interest in the will challenges the conditional gift, the court may determine the condition void. Depending on how the court rules, the consequences can be significant, affecting not just the beneficiary subject to the condition but others with an interest in the estate as well.
What Are Conditional Gifts in Wills?
As discussed above, a conditional gift is one where the beneficiary’s ability to inherit is contingent on meeting certain requirements set out by the will-maker. In BC, there is no straightforward legal doctrine that lays out exact rules surrounding conditional gifts.
Even the Wills, Estates, and Succession Act (WESA) doesn’t provide a clear, overarching framework for conditional gifts; it only addresses conditional gifts in specific, narrow circumstances. Section 51 explicitly permits that a will-maker can make a gift conditional on the beneficiary first doing something with property they already own, such as selling it. In all other circumstances, the rules come from common law principles developed by BC courts over decades of case-by-case decision-making.
Types of Conditional Bequests in Wills
There are two types of conditional gifts in wills. The distinction between them matters, particularly when a condition fails or is found to be void.
Condition Precedent
A condition precedent is one that must be satisfied before the beneficiary can receive the gift at all. For example, the will-maker may require a beneficiary to graduate from university, reach a certain age, or get married before they can inherit a sum of money.
If the beneficiary does not meet the condition, WESA s. 46 governs where the property goes. It passes first to any alternative beneficiary named by the will-maker, then to the descendants of the beneficiary if they were a sibling or descendant of the will-maker, and finally into the residue of the estate if neither of those applies.
Condition Subsequent
With a condition subsequent, the beneficiary receives the gift first, but it can be taken away if a specific event occurs after the fact. For example, a will-maker has instructions in a will that leave a beneficiary a piece of land on the condition that they never sell it for commercial development. So, the beneficiary has the land, but risks losing it if they breach the condition.
If a court voids a condition subsequently, the beneficiary does not lose the gift. Instead, the condition is simply stripped away, and the gift becomes unconditional—the beneficiary keeps it outright.
When Are Conditional Gifts Considered Void
When a conditional gift is challenged by a beneficiary or another party with a valid interest in the estate, courts have the authority to strike the condition if it crosses certain legal lines. Courts retain broad discretion when it comes to conditional gifts, and if a party with a valid right to challenge the will brings a claim and the court finds any meaningful flaw with the condition, it has the authority to void it. Below are just some of the more common flaws found with conditional gifts.
Uncertainty
A condition must be clear enough that the beneficiary, the executor, and the court can all determine whether it has been met. If the language used is too unclear to be enforced, the court will declare the condition void. Conditions involving relationships, conduct, or lifestyle choices are particularly vulnerable on this basis. The more open to interpretation a condition is, the less likely it is to survive a challenge.
Impossibility
A condition that is genuinely impossible to fulfil will be voided. It is important to note that impossibility sets a high bar; a condition that is simply difficult or unlikely to be met will not automatically fail on this basis. The impossibility must be real, not merely improbable.
Against Public Policy
Courts will not uphold conditions that offend core societal values, even if they are not technically illegal. Conditions that have been found void on public policy grounds include those requiring a beneficiary to commit a crime, conditions that encourage the breakdown of a marriage, and conditions that discriminate based on race, religion, or nationality.
In Terrorem Clauses
An in terrorem clause is a condition that functions more as a threat than a restriction. It is designed to pressure a beneficiary into compliance. BC courts have addressed this directly, and the key question is whether the threat is real or idle. Where the will names an alternative beneficiary to receive the gift if the condition is not met, courts will generally find the condition has real teeth and decline to void it. Where no such provision exists, the condition is more vulnerable to being struck.
How Stephens & Holman Can Help
If you were named as a beneficiary and are dealing with a conditional gift that you believe is invalid or unfair, having experienced legal counsel in your corner can make a difference. At Stephens & Holman, our estate litigation lawyers have extensive experience representing beneficiaries throughout BC in will challenges, wills variation claims, and disputes involving conditional gifts. We will assess your situation, explain your options, and work to protect your interests and your inheritance. Contact us today to schedule a consultation.