I am writing a Will for a Testatrix who wishes to name her son-in-law as a default beneficiary of a share of her residuary estate, in the event her daughter and granddaughter (who is the child of the daughter and son-in-law) predecease her. The Testatrix wishes to make this conditional on the son-in-law having still been married to her daughter at the date her daughter died (and not having been divorced, separated, or living as though they were divorced or separated).
Whilst this is hopefully unlikely to apply (and the Testatrix could hopefully update her Will in this event), would a clause drafted with this condition be valid? There is a gift-over if any of the residuary shares “fail” which is intended to include the case that the condition is not met.
The Testatrix is not particularly interested in a discretionary trust.
I have drafted Wills before stating so long as they were not married or judicially seperated as this is certain and can be easily ascertained at the date of death. My feeling is that including the wording “living as though they were divorced or seperated” creates ambiguity -as how is this defined or proven? I would personally leave that out. Hope this helps!
The condition seems to be positively in favour of marriage so not currently repugnant to public policy. Can that be regarded as immutable? Some observers of developing social mores in this country might well be sceptical depending on the potential longevity of the condition’s relevance .
Sounds reasonable in principle, but those relationship-status conditions can get messy fast. I’d be extra specific with the definitions now rather than leaving room for disputes down the track.