§ 305 CONDITIONAL WILLS

• Jurisdiction: South Carolina
• Section: Chapter 3 Wills

§ 305 Conditional wills

A conditional will is intended by the testator to be effective only upon the occurrence or non-occurrence of a stated condition or event. If the testator did not intend for the will to be effective only upon the occurrence or non-occurrence of the stated condition or event, but rather the thought of the stated condition or event merely motivated the testator to make a will, then the will is not a conditional will and is effective even if the condition is not satisfied.⁷⁰ Compare the conditional will, which is effective only upon the satisfaction of the condition, with a will that contains internal conditions. In the latter case, which is quite common in estate planning, the testator intends for the will itself to be valid, but specifies one or more devises that are conditional. For example, the testator may provide in her will for the disposition of Blackacre to C if she is married to D at the time of her death, and otherwise to E. A will containing internal conditions is not as a consequence a conditional will.

Often, a testator's impending journey to be undertaken or surgery to be undergone serves as the condition in question.⁷¹ Although courts tend to find that wills are not conditional,⁷² in certain situations courts have held that wills are conditional.⁷³

A South Carolina case illustrates this concept. In In re Estate of...