Willmakers often want to set a date for which a minor or young beneficiary receives a gift from their estate. The most common is to suggest that their child receives their estate at 21 or 25 years of age. This is, however, not enforceable and the child can demand the whole of the provision at 18 years of age from the estate, unless provisions are written correctly.
In planning for minor or vulnerable beneficiaries, even a simple will (that is a will without a testamentary trust) needs to consider that a beneficiary who has entitlement to an asset (such as the residue of an estate) is entitled to take the provision upon reaching the age of minority – unless a condition prevents the vesting of the estate.
Conditions may include an obligation to survive by a certain date, with the provision that if the child does not survive until such date than an alternate beneficiary takes. Another condition may be that the child must reach a certain age and obtain a degree or level of training, with a failure of meeting such condition being sufficient to prevent the vesting of the estate (there are limitations in this regard). Alternatively, the provision can be made for the child out of a testamentary trust, with the child being one of many alternate beneficiaries until a date selected by a trustee.
We recommend that any provision to a minor or young person contain conditions. There have been many cases called to answer the rights of a person of legal age (18) calling upon the vesting of a provision from an estate. Proper legal advice can ensure your wishes are considered and upheld – with the obvious benefit being a savings of the estate until the beneficiary is of more suitable age and/or circumstances to inherit.
Nautilus Law Group’s Succession Law Team are trained in conditional planning and can assist you in achieving your wishes for your beneficiaries. We welcome you to contact Caitlin Bampton, on Caitlin@nautiluslaw.com.au or by telephoning at (07) 5574 3560, to arrange a no-obligation consultation with a member of our team.
