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How to control your heirs from beyond the grave

How to control your heirs from beyond the grave
How to control your heirs from beyond the grave

For most people, a will is a way to ensure your loved ones are looked after when you’re gone.

You can divvy up your assets as you see fit, and make sure family, friends, pets and charities get what you feel they deserve.

But things such as an increase in wealth, second marriages and blended families, have led to some people including conditional clauses in their wills in an attempt to control their loved ones from beyond the grave.

These stipulations can vary widely, but the goal is the same: beneficiaries are to fulfil the demands if they are to inherit.

Here, Telegraph Money explains what kind of conditional clauses you can make, and whether there’s a chance your heirs might be able to sidestep them.

What kind of conditional clauses crop up in wills?

Generally speaking, you can include whatever conditional clause you like in your will. Most tend to be fairly straightforward and sensible, but others can include requiring an heir to change their name by deed poll, look after a surviving cat, have a clean criminal record or get a job in finance (these are all real examples).

One of the most common caveats involves an age restriction whereby the beneficiary cannot inherit until they reach a certain age, say 25-years-old, to prevent irresponsible spending.

However, Alexandra Milton, partner at law firm Moore Barlow, said she has seen some cases where parents don’t want their children to inherit until they reach 60.

Legal experts also see many attempts to try and control relationships via a will – both from partners and parents.

Oliver Asha, head of legal at Make a Will Online, said he’s seen gifts given on the condition the surviving spouse does not remarry or live with a new partner.

Mr Asha said: “This can be motivated by love, jealousy, or a feeling of what’s ‘fair’ – but it can often cause pain and suffering.”

Parents have also included stipulations in their will that their children must get a prenuptial agreement before marriage if they are to inherit, while others demand the end of a relationship.

Alexandra Rogers, managing associate at law firm Foot Anstey, says one of her clients wanted to leave her whole estate to her daughter – but only if she divorced her husband.

However, had this been included in the will, there was a risk it would have been voided under public policy grounds.

Conditional clauses may be disregarded in practice

Conditional clauses in wills can be disregarded for different reasons, such as if it encourages someone to commit a crime, demands the separation of a couple, requires a change of religion or includes restrictions on who the beneficiary can marry.

In the case of a client wanting her daughter to divorce her husband before she could inherit, the client was advised to leave her estate on the terms of a discretionary trust.

This meant her chosen trustees would be able to “exercise their discretion” as to how her daughter would benefit from the estate, with regards to a separate, non-binding letter of wishes.

Similarly, legal experts also see clauses where grown-up children can only inherit if they reach certain life goals. For example, if they get a degree from university, have a professional job or are “in a relationship” or living with a partner at the time of the parent’s death. But these can often be trickier to navigate.

James Antoniou, head of estate planning at Co-op Legal Services, said: “Who is to define what constitutes a relationship? And, with living together, what if the intended beneficiary and their partner only stay over at each other’s homes three nights each week, does this count? How about six nights, does this change things?”

Lawyers say they have tried to discourage clients from including some of the more mean spirited or unusual stipulations in their wills.

This includes the withdrawal of inheritance if the beneficiary dyed their hair blonde, and a trust where the payments would be reduced if the beneficiaries exceeded a certain weight.

Elisabeth Squires, head of private client at Britton and Time solicitors, said: “In another case, someone wanted to leave their entire estate to their spouse on the condition that they stuff them and keep their body on their favourite chair in the living room for the rest of their life.”

The so-called “haunted house clause” is where people have left their homes to relatives with the stipulation that the house must not be sold or altered in any way because they believe it’s haunted, according to Carl Christensen, from freewills.co.uk.

How else can you control the use of your estate?

It’s possible to leave assets to someone on the condition they do something within their control, such as reaching a certain age or looking after your pet.

Even adopting a particular surname or coat of arms before receiving the gift has been considered enforceable by the courts, according to Elizabeth Sainsbury, partner in the contentious trusts and estates team at law firm Farrer & Co.

However, what won’t stand up are unfair or onerous conditions.

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For example, demands that are impossible to perform, unclear, against public interest or damaging to the beneficiary, may be voided by the courts.

For example, a condition preventing a child from living with their father was considered against the public interest and was therefore unenforceable.

But there isn’t a hard and fast rule – and there’s a risk of causing upset, family fallouts, and legal action, especially if conditional clauses come as a surprise.

Ms Sainsbury said: “The validity of any condition will be judged on a case-by-case basis, and much will depend on the specific phrasing. Unfortunately for the beneficiary, if the condition is considered ‘void’ then the gift will likely fail, so it is important to seek professional advice on the drafting of conditional gifts in wills.”

One of the key ways you can control the use of your estate after you die is with a trust. This is a legal arrangement which involves leaving cash, property or investments to trustees to look after on behalf of someone else.

This could include money to pay for school fees, university or for the general benefit of the beneficiary, which would be paid at their discretion.

You can help guide trustees’ decisions by also writing a letter of wishes, including any circumstances for loved ones to inherit.

While this isn’t legally binding, Mr Antoniou said: “It gets round the difficulty of clauses in a will failing for being badly drafted or uncertain, and it allows for greater flexibility after death if the circumstances of a beneficiary are very different than the will maker might have envisaged when they made their will.”

It’s also a good idea to discuss any conditional provisions with relevant loved ones to help them understand the decision, and minimise the risk of any disputes after your death

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