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This for That – Conditions and Restrictions in Wills


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For better or for worse, parents and grandparents often use monetary rewards as a means of controlling the behavior of their children and grandchildren. “If you get all A’s, I’ll give you $100.” “If you go to temple every week, I’ll put $50.00 in your bank account.” “If you don’t get any detentions this year, I’ll buy you that new car.”

Some parents and grandparents even go so far as to build these types of “carrot and stick” conditions into their wills. In the past, it was common for a bequest in a will to be conditioned upon a child marrying a particular person, completing a certain degree of education or pursuing a particular profession. While these types of restrictions might seem outdated today, they are still included in many wills.

However, not all conditions and restrictions in wills are enforceable. Courts generally uphold restrictions that align with public policy, but strike down conditions that run afoul of it. For example, a bequest conditioned on the beneficiary’s successful completion of a drug rehabilitation program would likely be upheld. It is not against public policy to encourage an individual suffering from addiction to seek medical care and assistance.

If, on the other hand, a testator was to condition a bequest on an individual remaining a bachelor or bachelorette for life, then the condition would likely be struck down as against public policy. This is because it is against the public policy of the State of New Jersey to restrain people from entering marriages. Interestingly, though, under some circumstances the testator may be able to condition the bequest on the class of persons that the beneficiary marries – for example, a condition that the beneficiary only many a member of a specific religion.

When analyzing the enforceability of a restraint or condition, a Court considers the testator’s intent in creating the restraint or condition. In other words, the purpose of the condition cannot violate public policy. For example, a bequest might provide a young person with a yearly income until such time as they are married. If the testator’s purpose in making the gift was to ensure the young person’s livelihood during the early years of life, then the bequest will likely pass judicial muster; despite the condition’s practical effect of potentially discouraging the young person from marrying.

Restraints and conditions are a complex subject area. Whether you are the beneficiary of a restrained/conditioned bequest or a testator who desires to make such a bequest, you should consult a qualified estate planning attorney to fully understand these complex devices.

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