Brisbane’s Legal Lowdown: Can you really “rule from the grave”? Conditions in Wills explained

Sofie: It’s time this week for our Brisbane legal lowdown with Attwood Marshall Lawyers, where today we’re asking the question, can you really rule from the grave?

Many people include terms and conditions with their wills, but it turns out not all of them are enforceable. Whether or not it’s a gift that might come with some strings attached, restrictions that could spark debate when the will is being shared, or provisions that can create real challenges for families after someone passes.

So, let’s find out what we need to know with Attwood Marshalls Lawyers’ Estate Litigation Senior Associate Duncan MacDougall. Good afternoon to you.

Duncan: Good afternoon. Thanks for having me.

Sofie: So, what does this mean when you say this phrase ruling from the grave in the context of wills?

Duncan: Yeah. So, it’s really the deceased that’s the motivator here and they’re trying to extend their power, their values, they’re trying to be that puppet master and continue to be that puppet master after they’re long gone to make sure that assets are controlled in a certain way, or for instance, certain people will only benefit in a certain way or otherwise.

Sofie: Yeah. Or that there’s not the ability for somebody to change their wishes.

Duncan: Exactly, or even how to use an asset.

Sofie: But we’ve talked about this now a few times where there’s this idea that you may put a provision in your will, assuming that that’s going to happen, but then the legal arm comes over the top and strong arms you out of that being a possibility, you’ll never know about it.

Duncan: Yeah. And I mean at the end of the day, the will is a deceased’s wishes but I like to tell people the more conditions you’ve got in your will, the more complex your will becomes, the more litigious it’s going to become at the end of the day, especially if there’s family dynamics going on and ongoing history there where the deceased and these other family members have ongoing issues.

Sofie: So, from your experience, is it common for people to try to impose these conditions or restrictions on what they might leave?

Duncan: Oh yeah, we see it time and time and again. Generally with people trying to prepare their own documents as well. Certain conditions like you’re only going to inherit if you go to university. You’re only going to inherit if you don’t remarry, you know you’re going to be single the rest of your life. I’m going to be the last one you see.

Sofie: Or, if you’re still married to X, then whoever it is, then I don’t want them to get any part of it.

Duncan: Exactly, all sorts of conditions. And what I say with those sorts of things is try to leave those sort of wishes outside of a will. I generally recommend that you can have your will document, but just remember it becomes a public document at the end of the day after you pass away.

Sofie: Okay. So then if you do want to put something in place, what are the sorts of ways that you can be considering putting some sort of valid or enforceable condition?

Duncan: Yeah, certain conditions certainly can be workable. It’s just the key there, is it enforceable? Is it clear? Is it actually going to be viable there for the executor to carry out along with your beneficiaries? So, for example, maybe you’ve got a surviving spouse and you want them to reside in your property for a period of time until they get onto their feet and find alternative accommodation. There could be conditions there where they’ve got a right to reside there for X amount of years or if until they remarry or until they find alternative accommodation, things like that.

Sofie: Okay. And then on the other hand, you’ve already outlined a little bit, but there might be something that people assume is a condition that would hold up and it won’t. What’s the most common one that you see?

Duncan: Oh, I mean I see it all sorts of different examples, but one that comes to mind is imposing a certain condition, maybe it’s they will only benefit if they follow this devout religion and one case came out of I think it was NSW where a father left everything to his four children, I think it was four children, on the condition they become devote Jehovah’s Witnesses. Which then led to the court, the court struck that condition out, but again, it’s these sorts of conditions that again will probably be litigious and there’s avenues there where these beneficiaries can often take action to have these sorts of conditions struck out or otherwise.

Sofie: And what happens if a beneficiary feels that one of these conditions is unfair? Maybe impossible to comply with. Do they have legal options? It sounds like they do to challenge the condition.

Duncan: Yeah, whether it’s making an application to the court to challenge that specific condition, maybe that it’s not even clear. Maybe it’s the terms of the will need some clarity and the courts view on the clarity of the will.

They may even take a position where if certain eligible people have not been provided for, they can make a family provision application for further and better provision.

They may even go down the lines of even the deceased. When at the time of preparing the documents, a better option would have been, oh, maybe look at testamentary trusts whereby there’s a lot of asset protection and trust benefits that come along with those types of wills which achieve the same outcome, but it’s framed in a different way and making sure it’s clear as day.

Sofie: Tony wants to know if you do want to make sure that you have a provision in place that will be iron clad. Is the better advice, maybe to give that money before you pass and not have that provision put in a will?

Duncan: Potentially that could be a strategy. And again, at the end of the day maybe there’s something that you have a conversation with your solicitor about. There may be some asset restructuring that you do, whether it be transferring the property into joint tenants whereby it’s not actually going to form part of your estate. It’s automatically going to pass to a specific beneficiary rather than it’s going to be forming part of that pool of assets that consists part of the estate.

Sofie: What about debt? How do people go about making sure that they find themselves in a situation where if they die with debt, it doesn’t become a burden to others?

Duncan: Yeah. So again, your estate will pay before distribution takes place, the estate pays all estate liabilities before distribution takes place. But it’s something to monitor there as well as to see what’s actually going to be in your estate. So again, these are conversations you can have with a solicitor and something that you monitor every three to five years to say, well, what’s your financial position now, is what you’re trying to do even achievable given what’s actually in your estate?

Sofie: Oh, fair enough. I hope that helps Matt. From a practical perspective, if someone was considering to put some conditions in their will, what are the things then you would like to leave us with that they should be carefully thinking about before they do so?

Duncan: Again, just goes back to is it enforceable and making sure that it is very clear those sorts of conditions and will it actually be achievable, at the end of the day. Think about it practically. Is it actually going to pan out? So, for example, maybe you’ve got a child under the age of 18 at the moment, and you only want them to benefit upon the time they attain 25. I mean, I didn’t know which way was up at 18. So, if Mum and Dad passed away, I wouldn’t..

Sofie: Really? You seem so responsible.

Duncan: I do now. I learned a thing or two. But those are the conversations you’ll have, and maybe it’s a staggered distributions for certain amount for education, certain amount for buying your first home, right, those sorts of things which are practical.

Sofie: Those things are practical. Those things are conditions that are enforceable. That so a kid or a 20, even a 25 year old, doesn’t end up with a lump of money that they blow because they don’t have the wisdom to be a little bit more careful with it.

Duncan: One hundred per cent.

Sofie: Michelle has given us a call from Griffin and has a question for you. Good afternoon to you, Michelle.

Michelle: Hi, thank you for taking my call. My question is, my mother is 85 and I have a brother who hasn’t spoken to the family for about 35 years. Now Mum’s worried that he’s got some like he can contest the will. She wants to know if she has to stipulate that he doesn’t get anything?

Duncan: Yeah, I mean it comes to the deceased’s intentions there. It’s her will. It’s up to what she wants to do with it, but she also ought to be aware that there are, if it’s in Queensland here, there’s certain eligible people who can make a claim against the estate, even if he’s been estranged for several years, he can still be considered eligible.

Sofie: Even 35 years?

Duncan: Even still, he’ll still be considered eligible, but it’s all going to come down to the circumstances. So, it will come down to the relationship with the deceased, the size of her estate, all these sorts of things. But estrangement is not a complete bar against somebody making a claim.

Sofie: Yeah, you might want to make some more inquiries, Michelle. Obviously, the conversation that we have here with Duncan is general in nature. So, if you would like to speak to Attwood Marshall or another estate litigator for some more concrete advice for your particular situation. It sounds like it’s one of those areas, Duncan where they may want to ask a few more questions.

Duncan: A classic example, though, when we hear that issue come up quite often.

Sofie: I thank you as always for your time this afternoon and for Michelle and for anyone else, as we said Attwood Marshall’s always happy to have that 30-minute consultation with anyone who might want to just ask a few more questions and unpack what the law actually says. Appreciate it.

Duncan: Thanks.