Conditional Gifts in a Will: Conditions Precedent, Subsequent, and When a Condition Is Void
A will can attach conditions to gifts — but some are void. A void condition subsequent is simply struck out; the beneficiary keeps the gift. A void condition precedent can cause the whole gift to fail.
Two Types of Condition
Condition precedent
The beneficiary cannot take the gift until the condition is satisfied.
I give £50,000 to my daughter if she graduates from university.
If void: The gift fails entirely — no benefit passes until the condition is met, and if void the gift lapses.
If uncertain, the whole gift may fail unless the court can apply some meaning to the condition.
Condition subsequent
The beneficiary takes the gift immediately but will forfeit it if a future event occurs.
I give my house to my son, but if he moves abroad he must return it.
If void: The gift becomes absolute — the condition is struck out and the beneficiary keeps the gift unconditionally.
Courts are more willing to strike out a void condition subsequent (gift saved) than a void condition precedent (gift may fail).
Conditions That May Be Void
Total uncertainty
Re Tepper's Will Trusts [1987]If my son lives a good life
Condition is too uncertain to apply. In a condition precedent this usually voids the gift; in a condition subsequent the gift becomes absolute.
Restraint of marriage (total)
Duggan v Kelly (1843); Re Caborne [1943]If my daughter never marries
A condition totally restraining marriage is void as against public policy. The gift takes effect as if the condition were not there.
Restraint of marriage (partial)
Re Whiting's Settlement [1905]If my son does not marry before age 25
Partial restraints are usually upheld — they are not treated as void. Age conditions are standard and valid.
Restraint on religious freedom
Re Tuck's Settlement [1978]I give to my niece provided she remains a practising Catholic
Conditions requiring adherence to a religion can be valid if certain enough — Re Tuck's Settlement [1978] CA upheld a condition of being of 'Jewish blood and Jewish faith'. Absolute religious bars may fail for uncertainty.
Contrary to public policy
Re Johnson's Will Trusts [1967]If my son divorces his wife
A condition designed to encourage or bring about divorce or the dissolution of a marriage is void as contrary to public policy.
Frequently Asked Questions
What is a condition precedent in a will and how does it differ from a condition subsequent?
A condition precedent is one that must be satisfied before the beneficiary can take any benefit at all. If the condition is not met, the gift does not vest — the property remains in the estate or passes elsewhere under a gift over or residue clause. A classic example is 'I give £20,000 to my nephew when he qualifies as a solicitor': the nephew takes nothing until qualification, and if he never qualifies (or predeceases) the gift fails. A condition subsequent is the opposite: the beneficiary takes the gift immediately and unconditionally, but the gift is defeasible — it will be forfeited if a future event occurs. For example, 'I give my house to my daughter, but if she sells it within 10 years she must pay £50,000 back to the estate'. The daughter owns the house at once but holds a defeasible interest. The distinction matters enormously for void conditions: a void condition subsequent is usually struck out and the gift becomes absolute, whereas a void condition precedent may cause the whole gift to fail.
When is a condition in a will void for being contrary to public policy?
English courts have identified several categories of condition that are void as contrary to public policy: (1) a condition that totally restrains marriage — 'I give to X provided they never marry' is void; a partial restraint (e.g. 'until she marries', or 'if she does not remarry') is generally permitted; (2) a condition designed to encourage or bring about a divorce or the dissolution of an existing marriage — this is void as contrary to the institution of marriage; (3) a condition requiring a beneficiary to act contrary to a statute; (4) a condition designed to separate parent and child. In each case, if the condition is subsequent the gift stands without it; if it is precedent the gift may fail. Partial restraints on marriage and conditions requiring conduct not contrary to public policy (such as reaching an age, obtaining a qualification, or staying in a country) are generally valid.
What happens if a condition in a will is too uncertain to apply?
If a condition in a will is too uncertain to be given any meaning, the court cannot apply it. The consequence depends on whether the condition is precedent or subsequent: (1) a void condition subsequent — because of uncertainty — is severed from the gift and disregarded; the beneficiary takes the gift absolutely and unconditionally; (2) a void condition precedent — because of uncertainty — generally causes the gift to fail, because there is no way to determine if the condition has been satisfied, so the beneficiary can never obtain title. This asymmetry is well established in English law and is the main reason why conditions precedent carry more risk than conditions subsequent when drafting a will. If you wish to impose a condition, a condition subsequent is safer: if the court cannot apply it, the gift is saved rather than lost.
Are age conditions in a will valid?
Yes. Age conditions are standard and entirely valid in English will drafting. A gift to a beneficiary 'when they reach the age of 25' is a condition precedent — the beneficiary cannot take until they reach 25. During the period between the testator's death and the beneficiary reaching 25, the gift is held by the personal representatives (or a trustee if the will creates a trust). If the beneficiary dies before reaching 25, the gift lapses (unless there is a substitution clause or s33 Wills Act 1837 applies). Contingent gifts of this type also affect when the gift vests for IHT purposes — a contingent gift does not vest until the condition is met, so the property remains in the estate until then. The statutory power of maintenance in s31 Trustee Act 1925 applies to contingent gifts to minors — trustees can apply income for the minor's maintenance before the contingency is met.
Can a will condition require a beneficiary to maintain a particular religion?
Conditions relating to religious practice or identity are valid in principle, provided they are certain enough to be applied. In Re Tuck's Settlement Trusts [1978], the Court of Appeal upheld a condition requiring that beneficiaries be 'of the Jewish faith and married to an approved wife being of Jewish blood and of the Jewish faith' — the Chief Rabbi was appointed as the arbiter of whether the condition was met, and the court accepted this as a workable mechanism for resolving uncertainty. A condition requiring someone to 'remain a practising Christian' might fail for uncertainty unless there is a mechanism to determine what 'practising' means and who decides. A condition requiring conversion to a religion or the abandonment of a current religion may face greater public policy scrutiny than conditions simply requiring a beneficiary to maintain their existing religion.
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