The Kyle & Jackie O Show recently ran a segment discussing how Kyle should leave his Estate when he passes away. Does he have to leave his Estate to certain people? Should his Will include a treasure hunt? Are you able to request that your Trustees to eat your ashes for your money?
What are the rules and how far can we stretch them to make all of Kyle’s weird and wacky wishes come true when he passes away?
Marsdens have been dissecting Kyle’s ideas and perhaps, if Kyle reads any of these articles, he will be assisted by our advice. For anyone who missed our first segment please watch here: https://www.facebook.com/kyleandjackieoshow/videos/do-you-want-to-be-in-kyles-will/404551504294451/.
This segment will focus on whether you need to leave your Estate to certain people and what you can make people do for your money.
Do you have to leave your Estate to certain people?
Kyle says, ‘What if I don’t want to give it to anyone I love?”
So, does Kyle have the ultimate control of where his hard-earned cash goes when he passes away? Kyle has the control and freedom to leave his Estate to whoever he wants. He can gift his Estate as he wishes when he passes away and if no one successfully challenges that, then his Estate will be gifted in accordance with his Will.
With that said, Kyle needs to consider who could possibly challenge his Will. The law provides categories of people who are eligible to challenge a Will. The categories of eligible persons include Kyle’s current partner, his ex-wife, any children that may be out there in the world and anyone who has lived with Kyle and been financially dependent on him. If Kyle doesn’t appropriately consider these eligible people, he runs the risk that they may challenge his Will. Challenging Kyle’s Will doesn’t mean that they will be successful, but if a challenge is made, it can be an expensive exercise and one Kyle should look to protect his Estate from.
So Kyle, you’re free to gift your Estate as you want, but keep in mind the risk of making inadequate provision for those people who are eligible to make a claim against your Estate. If an eligible person is successful in challenging your Will, then your Estate may not be gifted in accordance with your Will.
What Can You Make People Do For Your Money?
During the segment, Jackie spoke about how she and her ex-husband, Lee included a condition in their Will that their Trustee (Jackie’s sister-in-law) could only have access to her Estate if she ate a handful of her ashes beforehand.
A very interesting condition indeed. But, can Jackie do this and will it be upheld by a Court if it got that far?
Much the same as people being free to gift their Estate as they wish, they are also free to make a gift conditional upon certain events occurring or conditions being met. Whether those conditions will be enforced is another question.
If the condition is deemed impossible, for example, a beneficiary has to touch the sun before they receive their money; or if the condition would be too difficult to uphold, for example, a beneficiary must not ever speak to a certain person, then a Court will not enforce the condition.
This is also the case if the condition is deemed to be “against public policy”, which includes: asking someone to commit a crime or asking a person to end their marriage prior to receiving their share in an Estate.
In these situations, the Court have held that the conditions were against public policy. It would be hard to see how the Court would force Jackie’s sister to eat her ashes and in all likelihood, she could have the money without needing to do this.
With that said, it would be an interesting segment on the show if it were to happen. Something for their marketing team to consider!
As an example of where a condition has been upheld is the case of Hickin v Carroll Ors (No 2) [2014]. In this case, the deceased left gifts to his children, who were practicing Jehovah’s Witnesses, on the following conditions:
- They attend is funeral; and
- They be baptised in the Catholic Church within 3 months of his death.
The children argued that the clause was not specific enough and that it was impossible to be baptized within that time. The Court disagreed and upheld the conditions, meaning the children needed to meet both conditions if they wanted their gifts. The Court said that clauses restricting religion only go against public policy when they effect a parent’s right to raise their children in a certain religion.
If you’re thinking of leaving anyone out of your Estate or putting certain conditions on your beneficiaries, please feel free to contact our Estate Planning Department on (02) 4626 5077 or at lbonomini@marsdens.net.au and we can walk you through it.
The contents of this publication are for reference purposes only. This publication does not constitute legal advice and should not be relied upon as legal advice. Specific legal advice should always be sought separately before taking any action based on this publication.
