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Estate beneficiary advice may serve a testator well

When making a will, some Ontario people want to have full control over what happens to their assets after they die -- even unreasonable control in some cases. Not all restrictions or conditions will be allowed by a probate court. A valid condition placed on an inheritance must be not only legal but also clear and possible. Estate beneficiary advice may be necessary when drafting a will.

A conditional bequest cannot be made if it discriminates against an ethnic group or religion, requires the beneficiary to leave a spouse or give up child custody or requires the beneficiary to do anything criminal. The details of a conditional bequest must contain no uncertainties in names, amounts, percentages or time periods specified in conditions. Required tasks must be possible; for example, a will can gift only to those who attend the testator's funeral or leave a house to someone on the condition that he or she lives in it.

Perpetual gifts may lead to conditions being denied, such as leaving land to someone with a restriction that it can never be sold. It also not possible to dictate something that is contrary to public policy, including marriage restraint or any other illegal or immoral conditions. Restraints that are too general may also be invalid, such as leaving an inheritance for someone with a marriage restraint attached. A specific restraint, such as a bequest contingent on the individual not marrying a particular individual, might be upheld at a partial restraint. Reaching milestones such as graduations or certain ages may be allowed by the court.

Ontario residents would likely want to word their wills in ways that are clear in order to avoid contention among surviving family members. Another situation to avoid is the uncertainty about what happens to a bequest if a condition is unfulfilled. To avoid leaving loved ones with complicated problems after the reading of the will, it simply makes good sense to consult with an experienced lawyer who can provide qualified estate beneficiary advice about the making of a proper will.

Source: FindLaw Canada, "What conditions can I put in my will?", Accessed on May 12, 2017

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