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Is it possible to make parts of a will conditional?

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    #32
    Peregrinus
    Registered Users Posts: 26,145 ✭✭✭✭Peregrinus


    DavidX90 wrote: »
    Rather than referring to marriage, couldn't the trust be worded to the effect that only OP's boyfriend, as the sole beneficiary, has the right to reside in the property (regardless of marital status)?
    I think the boyfriend would challenge that as a condition in restraint of marriage since part of the whole concept of marriage is the right to the society and company of one's spouse. The effect of the condition is that the life tenant, if married, would either have to live apart from his spouse or leave his home. Either of these is a significant "penalty" imposed for marrying.
    DavidX90 wrote: »
    That was my thinking but I take your point point. Maybe a fixed trust would be more suitable whereby the sole beneficiary would be OP's boyfriend (regardless of his marital status). Other posters mentioned that if a will is used, this condition might be difficult to control/enforce. The benefit of a trust would be that the trustee would be bound to act as a fiduciary, with the express wishes of the settlor in mind (albeit not legally bound by those wishes).

    Just throwing the idea out there. I would imagine this situation has arisen many times in the past? Would be interested to hear the solution.
    The boyfriend can't be the sole beneficiary of the trust; if he were, as a competent adult he could put an end to the trust and have the property transferred to him absolutely. At most, you could have a trust in which he had a beneficial interest in a life estate in the property and the testator's brother had a beneficial interest in the remainder.

    But to achieve the testator's purpose, you'd still have to include a term of the trust saying that the life tenant was not allowed to have any conjugal partner reside in the property with him. And we're back to the "conditions in restraint of marriage" problem.


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