As indicated by its name, a conditional gift refers to a gift with specific conditions outlined in a Will. 

A Will can establish a condition in one of two ways: 

  • a condition precedent – which requires an event to take place before the recipient can accept the gift; or 
  • a condition subsequent – a beneficiary forfeits a gift they have already received if a subsequent event occurs. 

The legal framework governing conditional gifts derives from common law (developed by judges on a case-by-case basis, building on the precedent and interpretation of earlier court decisions.). Over the years, the Courts have sought to balance the freedom to make a Will with the need to enforce certain limitations where failure to comply would render the condition invalid. 

Understanding the difference between a condition precedent and a condition subsequent is crucial, particularly when a condition is deemed invalid: 

  • in the case of a condition precedent – if the condition is ruled invalid, the gift is entirely nullified; 
  • in the case of a condition subsequent – if the condition is ruled invalid, the gift is treated as an outright gift.

In Fell v Fell [1922] HCA 55, the question was whether, on the construction of the will, if the testator died testate then, since the intended objects of his bounty are clearly designated, no further difficulty exists. Isaacs J concluded that the Court should answer the question in the affirmative.

As I am differing on a matter of considerable importance from my brother the Chief Justice and also from Street J., the learned primary Judge, I propose to state very explicitly the line of reasoning that has led me to the opinion I have formed.

Isaacs J set out principles a court should follow when construing a Will, noting that the bare nomination of an executor is sufficient to make a valid Will. 

There is a presumption the nominated executor will be entitled to:

  • use the estate assets to pay the estate debts and testamentary expenses and
  • the residue unless the words of the Will clearly express that the executor holds the residue for beneficiaries.

The Court must determine the meaning of a Will solely from its wording. While it is essential to focus on the language within the Will, there are circumstances where extrinsic materials—evidence from outside the will—can be utilised. 

However, the Court should only reference such materials if necessary to assist in interpreting the Will’s intentions. This careful approach ensures that the core intent of the testator is preserved while allowing for clarity when ambiguities arise.

The primary aim of construing a Will is to ascertain the testator’s intentions as expressed in the Will. Key points include:

  • 1. Fundamental Rule: The meaning of the words used in the Will should reflect the testator’s expressed intentions, not what they subjectively meant to do (Perrin v Morgan [1943] AC 399).
  • 2. Timing of Construction: The testator’s intention is objectively assessed when executing the will. Relevant surrounding circumstances are those at that time, not at the time of the testator’s death (Mustard v Oikonomov, unreported WASC, Library No 980468, 19 August 1998)
  • 3. Armchair Principle: Courts may consider extrinsic evidence (e.g., the testator’s property, family, or acquaintances) to understand the context of the Will. However, evidence of the testator’s subjective intentions is inadmissible. If ambiguity remains, the disposition may be void for uncertainty.
  • 4. Property as at Death: A Will generally speaks as at the date of the testator’s death concerning property unless the Will states otherwise (Wills Act 1970 (WA), s 26). However, the meaning of words in the Will remains fixed, even if the property referred to changes over time.
  • 5. Gifts in Wills: When construing words related to gifts, the focus is on identifying the specific thing the testator intended to give rather than interpreting terms in the abstract.
  • 6. Language Interpretation: The words in the Will must be read in the sense that the testator appears to have intended, shaped by the broader purpose of the Will (Brennan v Permanent Trustee Co of NSW (1945) 73 CLR 404, 414)
  • 7. Practical Approach: Wills should not be interpreted strictly technically but with sensitivity to the factual context of ordinary life (Re Willis [1996] 2 Qd R 664).

Walsh v Sloan as executor of the Estate of Dorothy Keddie [2019] WASCA 107 concerned a Will created by Dorothy Keddie (the deceased) created a Will in January 2005 that bequeathed her principal place of residence to her friend, Ms Davies. At that time, Keddie lived with Davies in a property on Drabble Road in Scarborough. However, in March 2005, Keddie sold that property and acquired a new home at Kilpa Court in City Beach. 

Keddie and Davies continued to reside together in Kilpa Court until 2011 when Davies moved into an aged care facility. Keddie followed suit and entered another facility herself in 2012. By the time of her death in September 2015, although Keddie was not living at Kilpa Court due to health issues, it still served as her principal place of residence for tax purposes.

This situation prompted a court to determine whether Kilpa Court could be considered Keddie’s principal place of residence at the time of her death, which would ultimately impact the inheritance due to Ms Davies. 

Curthoys J emphasised the significance of the Will maker’s intention when she created the Will rather than focusing solely on the circumstances at the time of death. After careful consideration, the Court concluded that Keddie intended to bequeath her home to Ms Davies, thus allowing her to inherit Kilpa Court under the provisions of the Will.

The appeal

GALIC -v- ENGELINA MARIA SELLIN as executrix of the estate of MILAN GLAVOTA [2025] WASCA 1 concerns the interpretation of the late Lucija Glavota’s (the deceased) Will dated 30 June 2006 (the Will) specifically regarding the devise of a property at 51 Orange Avenue, Upper Swan (Property).

Clause 2(i) of the will gifted the Property “absolutely” to the deceased’s nephew, Milan Glavota (the executor). Still, clause 2(ii) imposed a condition requiring the executor to pay specified amounts to other relatives (the beneficiary respondents).

Clause 3 allowed the executor five years from the deceased’s death to make these payments, and clause six provided for the sale of the Property and distribution of the proceeds if the payments were not made within that time.

The deceased passed away on 20 July 2006, and the executor had not made the payments before his death on 17 February 2013. Engelina ( the first respondent), the executor’s partner and the executrix of his estate, initiated proceedings against the executor’s legal adviser, Tihomir Galic (the appellant), alleging a failure to advise the executor on the proper interpretation of the Will and the necessary steps to secure his entitlement to the Property. The beneficiary respondents, as interested parties, argued that the gift was conditional, while the appellant contended it was absolute.

On 5 August 2022, Curthoys J ruled that the Property was held on trust for the executor and the beneficiary respondents. The executor’s absolute entitlement was contingent on fulfilling the payment condition within the specified time. The appellant’s appeal against this decision has been dismissed for the reasons outlined below.

On appeal from

ENGELINA MARIA SELLIN as executrix of the estate of MILAN GLAVOTA -v- GALIC [2022] WASC 249, concerns the interpretation of the deceased’s Will, dated 30 June 2006, concerning the devise of her primary estate asset, a property at 51 Orange Avenue, Upper Swan (Property). The key issue is whether the Will gave the executor absolute ownership of the Property or if it was conditional upon payments to other beneficiaries.

The deceased passed away on 20 July 2006, appointing the executor as executor and trustee of her estate.

Clause 2(i) of the will purportedly gave the Property to the executor “absolutely,” but clause 2(ii) required him to pay specified percentages of its value to nine beneficiaries.

Clause 3 provided the executor five years to fulfil these obligations, and clause 6 stated that if the executor failed to make the payments, the Property would be sold. The proceeds would be divided among the beneficiaries.

The executor died on 17 February 2013 without fulfilling the conditions or selling the Property. Engilina (The first respondent), the executor’s partner and the executrix of his estate, alleged professional negligence against the appellant, a legal practitioner, for failing to advise the executor concerning the payment obligations and their consequences under the Will. The appellant contended that the gift was absolute, rendering clause six invalid or repugnant.

Curthoys J ruled that the Property was held on trust for the executor and the beneficiaries. The executor’s absolute ownership was contingent upon meeting the payment obligations within the stipulated period. On appeal, the appellant argued that the devise to the executor was absolute and that clause 6 was void for being inconsistent with this absolute gift.

The appeal

The appellate court dismissed the appeal, upholding the primary judge’s findings. The Court of Appeal determined that the Will’s construction imposed conditions on the executor’s entitlement to the Property, and clause 6 was neither repugnant nor invalid. Thus, the executor’s failure to meet the conditions triggered the sale provisions under clause 6.

The Supreme Court of Western Australia emphasised that the primary goal in construing a Will is to ascertain the testator’s intention based on the Will’s language. The judgment highlights key principles and precedents related to the interpretation of Wills, such as:

Intention of the Testator: As reflected in the Will’s language, the testator’s expressed intentions govern the construction. The court noted this includes an objective assessment of when the Will was executed.

Condition Precedent vs. Condition Subsequent: The critical issue was whether the payment condition in clause 2(ii) was a condition precedent (to be satisfied before the gift becomes effective) or a condition subsequent (an equitable obligation attached to the gift). The court concluded that clause 2(ii) imposed a condition precedent.

Executor’s Role and Legal Title: Until the condition precedent was satisfied, the property remained an asset of the estate, with legal title held by the executor as trustee. The court found that the Will’s language, including other clauses detailing responsibilities and timelines, supported this interpretation.

A gift: the executor could not sell or subdivide the property in his capacity before fulfilling the payment condition. The court also rejected the argument that requiring the executor to fulfil the payment condition would frustrate the gift.

Cross-Appeal Adjustment: The court granted a cross-appeal to amend the primary orders, clarifying that the executor held the property as executor and trustee for himself and the other beneficiaries. The gift to the executor would only become absolute upon satisfying the conditions within the specified timeframe.

Ultimately, the court dismissed the appeal but granted leave for a variation in the cross-appeal to ensure the final orders accurately reflected the legal position. The judgment reinforced the importance of precise language and clarity in the drafting of Wills to minimise disputes.

During the appeal hearing, it became apparent that the beneficiary respondents, through their notice of contention, sought to amend one of the answers given by the primary judge to the preliminary questions. Senior counsel for the appellant indicated that the appellant would not oppose the proposed variation if the appeal were to be dismissed. To formalise this matter, the beneficiary respondents were granted leave to file a notice of cross-appeal.

The Cross-Appeal

The cross-appeal seeks to amend Curthoy J’s answer to question 1, as follows:

On a proper construction of the Will, the Property was to be held by the executor as trustee on trust for the beneficiaries named in clause 2(ii) of the Will and as a beneficiary, with the gift of the Property to the executor only becoming absolute upon the fulfilment of the conditions outlined in clause 2(ii) of the Will within the time specified in clause 3 of the Will, as stated in paragraph 3 of the Beneficiary Defendants defence.

Since the appellant does not oppose the amendment, the Court will allow the cross-appeal and adjust the primary orders as proposed. However, the Court considers it necessary to make two additional modifications to reflect the legal position accurately:

1. The first reference to the executor should specify his role as executor of the deceased estate rather than his capacity.

2. The trust’s beneficiaries should include the executor in his capacity and the other beneficiaries listed in clauses 2(ii) and 6 of the Will.

Accordingly, the Court would revise the answer to read:

On a proper construction of the Will, the Property was devised to be held by the executor, in his capacity as executor of the deceased estate, as trustee on trust for the executor as legal personal representative of the estate and the other beneficiaries named in clauses 2(ii) and 6 of the Will, with the gift of the Property to Milan only becoming absolute upon the fulfilment of the conditions outlined in clause 2(ii) of the Will within the time specified in clause 3 of the Will, as stated in paragraph 3 of the Beneficiary Defendants defence.

GALIC -v- ENGELINA MARIA SELLIN as executrix of the estate of MILAN GLAVOTA [2025] WASCA 1 at [37]

The Court of Appeal invites the parties to submit submissions regarding the final wording of the revised answer to question 1.

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