Chapter B. Conditions Imposed By The Testator
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In addition to restrictions on a testator's freedom of testation imposed by law (which can supersede a will even if the testator intended some other disposition), there are many conditions and restrictions that the testator might impose on the property passing under his or her will. Of these, only a few types are at all controversial or subject to substantial judicial scrutiny. Thus a testator may impose a condition on receipt of a legacy such as, "provided X is still in my employ at the time of my death," and the only questions that might arise would be those of construction (Did the testator mean to impose a condition? What is meant by "employ"?) and possibly the effect of a failure or inability to perform the condition. Other conditions or restrictions, however, such as those in restraint of marriage or alienation of real property, may be of questionable validity because they are contrary to public policy.
This section will cover the major types of conditions and restrictions that have raised substantial questions of validity and enforceability in Washington. It also will examine the effects of a failure of such a condition or restriction due to its invalidity or to noncompliance.
B.1. The Existence of a Condition
B.1.a. "Conditions Precedent" and "Conditions Subsequent"
Many cases speak in terms of "conditions precedent" and "conditions subsequent," and the validity of a testamentary gift
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may depend upon which type of condition the court finds to exist. These terms are somewhat confusing, however, because they are used in different ways in different contexts. A "condition precedent" can mean any condition that takes effect, if at all, at the death of the testator, as opposed to a "condition subsequent," which takes effect on some happening after that date.107 But a "condition precedent" may also refer more generally (and more commonly) to any condition that must occur before the estate or a particular gift can vest in the beneficiary, whether at or after the testator's death. In this context a "condition subsequent" takes effect to revoke or divest a gift after it has already vested in the beneficiary.108 The latter is the definition employed in the context of the Rule Against Perpetuities109 to distinguish conditions that prevent vesting within the Rule's time limit from those that do not.110
If the court finds that the testator intended to make the performance of some act or the existence of some fact as of the time of the testator's death to be a condition precedent to the beneficiary's taking under the will, the court will enforce that condition.111 The beneficiary will not be permitted to take if the condition has not been fulfilled at the date of the testator's death.112 Performance after that date will not suffice.113 Similarly, when the condition can or must take effect after the testator's death, the beneficiary cannot obtain the legacy until that condition has been satisfied.114
B.1.b. Determining Whether a Condition Exists
Whether a condition precedent (in the general sense of one that must be fulfilled before the gift can vest in the beneficiary) was intended by the testator is a question of construction. For example, an expression of the testator's intention to marry the beneficiary
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does not necessarily imply that the gift is conditional on that intention having been fulfilled.115 Although the rules relating to restraints on alienation and perpetuities have their own special construction peculiarities,116 in any context the court will try to determine whether a condition or a restriction was meant to prevent the beneficiary from taking his or her legacy, and if not, whether the legacy was to pass subject to a condition subsequent that could divest the property at some later date. Thus when a bequest was stated to be in consideration of the beneficiary's promise to care for the testator in his declining years, the court held that providing such care was a condition of the beneficiary taking.117 But when a testator attempted to require that the devisee of land occupy it (and not sell or encumber it) for 20 years after the testator's death, the court found that this did not impose a condition precedent to the passing of title, which thus passed at the testator's death.118 The court in the latter case did not consider the testator's intent to be that the devisee perform any act before taking title, especially as there was no provision for a reversion upon a failure to perform, and the lands would have had to vest before the requirements in question could have been performed.119
Theoretically the use of conditional language is not itself conclusive that there is a condition precedent to vesting.120 However, when the residue of an estate was given "in contemplation and on condition" that the testator's debtors would be paid by the legatee, it further being "contemplated" that they would be paid from certain (otherwise exempt) life insurance proceeds to be received by the same legatee, the court considered the latter ("contemplated") clause to be merely precatory language, but the addition of "on the condition" in the first clause made that act mandatory and a condition precedent to taking the legacy.121
In re Quick's Estate122 concerned a gift to a Masonic organization to be used in part to help needy members, with the balance to be used, "if the Board of Trustees shall so determine," to build a
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Masonic Temple. The court concluded that the latter clause was not a condition precedent to vesting of the remainder interest, and so there was no violation of the Rule Against Perpetuities.123 In the course of its discussion, the court set out several rules of construction helpful in determining whether a particular clause does create a condition precedent, whether in the context of vesting for purposes of the Rule Against Perpetuities or simply for the purpose of determining whether and when a legatee is entitled to his or her legacy.
According to the court in Quick's Estate, the basic test of whether a condition is precedent or subsequent (that is, whether it governs the original vesting of the testamentary gift) is the intention of the testator, as derived from the language of the will, read in the light of surrounding circumstances. Those circumstances include primarily the testator's relationship to and attitude toward the beneficiaries.124 In addition, the court will favor the early vesting of estates and vested over contingent remainders, "even in cases where the question is doubtful."125 Only a "clear intent on the part of the testator" will justify finding a condition precedent.126 The court added that if language of futurity is annexed to the enjoyment rather than the substance of a gift, the gift vests immediately.127 The fact that in Quick's Estate the entire gift was contained in one sentence and phrased as a single transfer to the beneficiary buttressed the court's finding that the testator had made a single immediate gift to the Masons, subject to a condition subsequent that the balance not used for needy members would be divested if the board did not use it to erect a temple within a "reasonable time." Thus the court found the decision to erect a temple to be a condition, but a condition subsequent—one that had to be fulfilled not before the beneficiary could take the gift, but to keep it.
Even if it is clear that a condition precedent was intended, it may be necessary for the court to examine the surrounding circumstances to determine whether the condition as intended by the testator has
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or has not been fulfilled. What might seem clear language describing the condition at the time of probate can become less than clear when a beneficiary claims to have satisfied the condition, especially some years later.128
B.1.c. Implied Conditions
Sometimes it is the condition itself, not just its terms, that is found to be implied by the nature of the gift. For example, if a legacy is given to the estate's executor, or to a trustee or other such fiduciary, it will be presumed that, as an implied condition of receiving the gift, the fiduciary must discharge his or her office.129 The presumption is rebutted, however, if the court finds that the legacy was not given to the fiduciary "in respect of the office," but rather "as an individual, from personal regard or affection."130 Furthermore, if a gift is seemingly made outright to the beneficiary, but it is followed by a direction to make certain payments or perform some service, this usually will be construed not as a condition (precedent or subsequent), breach of which requires forfeiture of the gift, but as "imposing a personal liability upon such devisee, or as creating a charge, lien, or trust."131
B.2. Valid and Invalid Conditions and Restrictions
There are certain restrictions on a testamentary gift that a testator is not permitted to impose. Generally this is because they, or the result of their enforcement, would violate public policy.132
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Although there are many examples of such invalid restrictions,133 only a few have been considered by the Washington courts.
B.2.a. Restrictions on Marriage and Encouragement of Divorce
It is not uncommon for the terms of a will to seek to extend "dead hand" control over the personal lives of the testator's beneficiaries, especially if the beneficiaries are members of the testator's immediate family. Although the testator is free to impose almost any (legal) conditions and restrictions on his or her benevolence while alive, this freedom is not so extensive with respect to restrictions extending beyond death.
Perhaps the most frequent attempt at "dead hand" control by a testator is with respect to the people his or her children will marry or remain married to. In general, any provision of a legacy that constitutes a restraint on...
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