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Kitty Flanagan’s highly anticipated new comedy Fisk premiered last night on the ABC. Flanagan’s character, Helen Tudor-Fisk, is a former Sydney-based contract lawyer, whose legal career is on the downward after being fired. Helen reluctantly takes a position as a Wills and Probate lawyer at Gruber and Gruber, a suburban Melbourne law firm.

As a proud Melbourne Wills and Estates lawyer, watching Fisk was both entertaining and mildly offensive. Nevertheless, I was hooked within minutes.

Helen, reeling from the shock of having to see a client on her first day of work, is presented with her first legal problem: a conditional will. Her client produces her mother’s Will, which gives her estate equally to her two children - the client and her son - on the condition her son has a vasectomy before receiving his inheritance.

Seeking legal advice as to whether she can produce the Will to the court, the client hopes to obtain a court order compelling her brother to have a vasectomy.

Helen rightfully explains to her client that her dead mother cannot compel her son to have a vasectomy, however the question as to whether the gift in the Will should fail if he does not have the vasectomy, is not clearly answered.

As a Wills and Estates lawyer, I have seen my fair share of conditional gifts in Wills. There are two main types of conditional gifts;

  • A condition precedent (when a certain condition must be satisfied before the beneficiary is awarded a gift) or
  • a condition subsequent (when a beneficiary receives a gift but, if a particular event occurs, the asset is revoked).
     

Whilst the type of conditions can be incredibly diverse, there is no guarantee that the court will require all conditions to be imposed. The court will not uphold a condition where:

  1. It violates a rule of law (most often because it is uncertain or impossible to satisfy); or
  2. It is contrary to public policy.

The NSW Supreme Court case of Hickin v Carroll & Ors (No 2) [2014] NSWSC 1059 dealt with gifts conditional upon the Willmaker’s children converting to Roman Catholicism within 3 months of the testator’s death. The children failed to do this, and it was a matter for the court to determine whether or not this condition should be upheld.

Here, the court found not only that the conditions were certain and possible to comply with, but shockingly, that the condition was not against public policy.  The Court ruled it was bound by the decision in Re Cuming; Nicholls v Public Trustee (South Australia) [1945] HCA 32, that held that a clause restraining religion was only contrary to public policy if it limited the parental right to raise a child in a particular faith. The clause here did not infringe upon the right of the children to exercise their religion freely.

In the Fisk case, it is clear that the condition requires the deceased’s son to have a vasectomy and this condition is possible to satisfy. Yet, it would be a very brave court who rules that requiring a man to have a vasectomy before receiving an inheritance, is consistent with public policy. However, somehow a case with the same factual basis as the Fisk case, is yet to be tested in our courts.

What’s the lesson from this? If you are wanting to make a conditional gift in a Will, you should speak to a Wills and Estates lawyer about whether this condition would be upheld by the court. I promise, we don’t all shout at our clients or explain estate using sausage rolls!

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