If you tuned in to Kitty Flanagan’s new TV show “Fisk” on the ABC, not only would you have been entertained, you would have learned a little about offensive conditions in wills. See TV CAN be entertaining AND educational at the same time!
In the first episode Kitty Flanagan’s character Helen Fisk meets Ruth whose mother has just passed, having made a Will Kit will leaving the estate equally between Ruth and her brother Dean. But Dean only gets his share on the condition he has a vasectomy! And there it is – the “offensive condition” – at least arguably so…
While Fisk adamantly tells her new client (through a self-made fog horn no less) that there is no way the condition could be enforced by a court – we think the case might have been arguable.
In the Queensland decision of Ellaway v Lawson applying an earlier High Court decision (Ramsay) a gift to a daughter conditional on her divorcing her husband (or on her husband’s death) was held NOT to be offensive. Why? Because the act of divorce was voluntary and, when considered within then applicable community standards, was no longer prejudicial.
While in other cases gifts conditional on requiring someone to change their religion or prohibiting marriage (to anyone) were held offensive (and therefore unenforceable). This is because the court considers the condition against public policy and community standards.
This is why homemade Will Kit wills usually end up being problematic!! Because weird and wacky or unclear terms are often included, that then need courts to step in to fix them up or clarify their effect!
In this “case” Dean (played by Glenn Robbins who is pushing 65) had already fathered 5 children with separate women (the very reason for why the condition was set by his mother). Dean was objecting to the procedure because he believed it would affect his ability to work (he had a VERY “unique” occupation! Watch the episode to see what that is!!). But the medical evidence might not have supported Dean’s argument. So a court might have taken the view that Dean could choose to have the voluntary procedure and get his share, or choose not to and miss out.
Now before you cry “poor Dean” – all is not lost. Because even if Dean misses out on his share under the will, he would still be able to make a claim for further provision out of the estate (as the son of the deceased).
Which is perhaps why Helen Fisk ultimately convinced Ruth to try and settle things with her brother. Again – you really have to watch the episode to see how the impact of costs on the inheritance is explained with the use of a sausage roll!!
So what can you learn from ABC’s newest comedy about the internal dramas of a probates firm?
- Don’t make a will kit will – get it done properly – we can refer you to skilled lawyers who do this work!
- If you have to administer a will kit will – get proper legal advice from specialists who know what they are doing, and what to look for (hint – if you’re in Queensland – use us!)
- If you can reach agreement with your family when facing an inheritance dispute – try to do that. It’s better than feeding your inheritance to lawyers as legal costs!
At Resolve Estate Law, we are here to help you navigate any element of an estate administration, no matter how complex. If you need help with a DIY Will Kit ‘mess’ or interpretation of a clause in Will contact us by phone or email, or click here to arrange your complimentary 15 minute call.