Conditional Gifts in Wills

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A conditional gift is a provision in a will which states that money or property will be distributed from the estate only when and if a specific event takes place.

For example, a grandfather might leave $30,000 to each of his grandchildren, if they graduate college before they turn 25.

There are 2 basic conditions that can be put on gifts in wills: condition precedent and condition subsequent.

A condition precedent is a condition which must occur before any gift is made. The first example is a condition precedent: the beneficiary must graduate college within a certain amount of time before they receive any money. It is also a good example of how a condition should be written to give it a reasonable chance of being followed: it has a specific time window that closes after a reasonable period (it is impossible for the condition to be met if the beneficiaries have not graduated college by the time they turn 25). If the condition is completely open-ended, it becomes more difficult to enforce as time goes by, as every passing year decreases the likelihood that any concerned parties will be alive to seek its enforcement.

A condition subsequent applies to gifts which are given without condition, but revoked if something happens. For example, a person might leave land to a relative, on the condition that he never sells alcohol on it. These tend to be more difficult to enforce, because they are completely open-ended, meaning that the condition resulting in revocation of the property might not happen until decades after the gift is made.

Certain conditions will never be enforced by a court. A condition requiring illegal activity is unenforceable, as is a one requiring a beneficiary to marry or divorce a specific person, or requiring somebody to change their religion.

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Last Modified: 02-13-2012 04:13 PM PST

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