1

I'm trying to find information on whether a will in the UK is unenforceable, based on the fact that the terms in it are unreasonable, and can't seem to find any information - all advice on the enforceability of the will is based on things like whether the person writing it was of sound mind, etc.

Say a will has a stipulation that the executors own a property, and are required to let out that property to a particular business, but are not allowed to sell it for 10 years; this means they must take all the necessary responsibility for being landlords of the property, but are not allowed to get out of the arrangement at any time through selling it. Is this reasonable/enforceable? How about if they were not allowed to sell it for 20 years, or 100? Surely there must be some set of rules as to what terms of a will can actually be enforced?

  • You always have the choice to refuse an inheritance. You just can't pick and choose. Who says these terms are unreasonable? If that business is run by the deceased's best friend for example, it may be entirely reasonable. – gnasher729 Sep 9 at 11:56
  • Yeah, but I'm wondering who decides on whether they're reasonable and how. I'm not sure I would agree that the 100 year version, for example, was reasonable - even if someone had agreed to accept ownership of a property. 50 years down the line they're still lumbered with being a landlord. Are you saying there's no way for them to get out of that responsibility? What if their circumstances change and they get a full-time job & kids that leaves them no time to be a landlord? Under normal circumstances they absolutely could, simply by evicting the tenants and selling the property! – Jez Sep 9 at 12:03
  • They wouldn't need to evict them to sell it, people buy/sell rental properties with contracts all the time. There shouldn't be anything barring you from making a 10-year lease with the current tenants and then selling the property with the lease. In fact having a 10-year lease might make the property more "sell-able". – Ron Beyer Sep 9 at 12:29
  • No, there is a provision that the property shall not be sold. – Jez Sep 9 at 13:03
  • @Jez I'm just referencing the last sentence in your comment: "Under normal circumstances they absolutely could, simply by evicting the tenants and selling the property!" – Ron Beyer Sep 9 at 13:08
6

Conditions in a will are.. complicated.

As a rule of thumb you can impose conditions but that doesn't mean they are always going to be upheld.

Some will be ruled void where they are considered "against public policy" - where it's against the public interest to consider the condition valid. e.g:

  • encouraging someone to commit a crime;
  • inducing the future separation of a married couple;
  • unreasonable restrictions on marriage;
  • depriving a parent of control over their children;
  • requiring a child to change their religion.

That sort of thing.

Another way is if the condition is "impossible" (or so improbable/impractical as would make no real difference) e.g. you can't say "they have to leap the grand canyon on a skateboard" or "must visit mars and bring back ice cream first" that sort of thing.

Alternatively if the condition is too vague or uncertain e.g. "the beneficiary will inherit when they are ‘suitably’ married" or impractical to enforce e.g. "no one with the surname Booth may enter the property on a Wednesday".

I'm not sure those are going to apply here - the condition sounds specific and not particularly difficult to achieve or to measure compliance. That doesn't mean it's going to stick though - you can challenge the condition in court and they might chose to void the condition. Since the condition sounds like what's called a "condition subsequent" (i.e. it comes into effect after receiving the "gift") the court can use discretion to have the gift still take place if the condition is voided.

How about if they were not allowed to sell it for 20 years, or 100?

The 100 years variant could fail under "impossible" - since it would take the time period the beneficiary was required to comply with the condition past the point they could reasonably be expected to comply with it (since people typically live that long), similarly with the 20 years (or even the 10) if it was going past the remaining expected lifespan of the recipient.

Basically it boils down to "challenge it in court and see what they say" - but as ever consult an experienced solicitor before doing anything along those lines. Having a condition declared void doesn't always translate as "you get it free and clear" - in some circumstances it means the gift becomes part of the Residuary Estate instead.

| improve this answer | |
  • So, I'm interested in the specific example I gave in a comment above. Somebody agrees initially to a will that requires them to let out a property that's given to them, for 50 years, and not to sell the property. This locks them into being landlord, along with the duties and time sinks involved in that, for the whole 50 years. 20 years later, their circumstances have changed to the point where they don't have time or desire to be a landlord. Can they literally be legally forced to continue being a landlord for another 30 years with no way for them to get out of it? Seems insane. – Jez Sep 9 at 16:10
  • @Jez Can they literally be legally forced to continue being a landlord for another 30 years with no way for them to get out of it? Unless they can convince the court to void the condition yeah, and of course they do have a way out - they break the condition and forfeit the property. – motosubatsu Sep 9 at 16:13
  • 1
    And it's worth noting that in the specific example there where circumstances change 20 years in they would have a potential argument to have it voided in that they are no longer able to fulfill the condition based on circumstances outside of their control - assuming that was the nature of the change of course "I just don't want to" probably wouldn't count! – motosubatsu Sep 9 at 16:17
  • @Jez, no one is forcing anything. If you don't take the property you aren't forced to do anything. And this seems overblown. There are companies that will manage rental property for owners. – Tiger Guy Sep 11 at 4:03
3

@motosubatsu does a good job of starting the analysis. I'll supplement it a bit.

The Perpetuities and Accumulations Act 2009 is the primary limitation on the allowed duration of non-charitable restricts in a will or a trust. In a nutshell, property can be tied up for one person's life plus 21 years. But, it is much more complicated than that in the details.

Generally speaking, if all living interested parties agree, a will can be "reformed" so long as it reflects the general intent of the testator (i.e. the person who wrote the will), by a probate court. Also, if the terms of the will are violated and no one complains, it never goes to court and nothing is done about the breach of its terms.

In the absence of unanimous agreement, a court probably has fairly broad powers in equity to adjust the terms on a wide variety of practical and equitable considerations. In Princess Diana's case, for example, her will was reformed to make small devises to people in her circle of attendants and servants whom someone in her station would usually provide for, despite the fact that she failed to do so, something that a U.S. probate court wouldn't dream of attempting.

| improve this answer | |
  • Please see me comment on the answer from @motosubatsu above; I'm interested in the answer to that as I think it does a good job in boiling my question down to its essence. – Jez Sep 9 at 16:12
  • 3
    Actually, life plus 21 years was the limit under the 1965 Act, the 2009 act changed it to a flat 125 years after the trust comes into effect (i.e. for a will, the date of death). – Dale M Sep 9 at 21:36
  • 1
    @DaleM Actually, 80 years was the limit under the 1964 Act. As you say, this was modified to 125 years by the 2009 Act. (Correct your comment & I'll delete this.) publications.parliament.uk/pa/ld200809/ldbills/035/en/… – Just a guy Sep 10 at 21:27

Your Answer

By clicking “Post Your Answer”, you agree to our terms of service, privacy policy and cookie policy

Not the answer you're looking for? Browse other questions tagged or ask your own question.