VIC Leave Child Out of Will and Provide for Grandchildren - Legal?

[Stephen King]

Hello.

My wife and I want to make a change to our wills. We want to cut one child out of our will but leave what would be his share to his children that would be administered by the Trustees until they reach the age of eighteen years, then become a joint trustee until they reach the age of twenty one.

We want to make this change because he is an alcoholic with psychological issues and we feel he could not handle the responsibility.

I have worded it already in our will and just want to know if it is legal.

(h) The equal share of my estate for my son *************, is to be held in trust for his child or children, my grandchildren. I appoint my Trustees to invest their share or shares and distribute towards the maintenance, education, advancement or otherwise for the benefit in life of such child or children in their absolute discretion they think fit until they reach the age of eighteen years then such child or children become co-trustees until the age of twenty one.

Your help would be greatly appreciated.

 

[Lance]

Hi Stephen,

I don't think there is a problem with you doing that but there is nothing to stop him contesting it in court. If I were you, I would speak with a lawyer to determine if there is a way to reduce his chances of success if he were to contest it.

 

[Stephen King]

Hi Stephen,
I don't think there is a problem with you doing that but there is nothing to stop him contesting it in court. If I were you I would speak with a lawyer to determine if there is a way to reduce his chances of success if he were to contest it.

Thanks for the reply Lance. I am still leaving provisions for his children. The only other way I can think of is if the Trustees are put in control of his share. That way he can benefit, but not have direct access to money and go off the rails again.


Cheers

 

[Stephen King]

Your help would be greatly appreciated.

Sorry, have updated the wording folks

Hello.

My wife and I want to make a change to our wills. We want to:

1. Cut one child out of our will but leave what would be his share to his children that would be administered by the Trustees until they reach the age of eighteen years, then become a joint trustee until they reach the age of twenty one.

Or

2. Put what would be his share into the control of the Trustees to administer. We want to make this change because he is an alcoholic with psychological issues and we feel he could not handle the responsibility.

I have worded it already in our will and just want to know if it is legal.
1. "(h) The equal share of my estate for my son *************, is to be held in trust for his child or children, my grandchildren. I appoint my Trustees to invest their share or shares and distribute towards the maintenance, education, advancement or otherwise for the benefit in life of such child or children in their absolute discretion they think fit until they reach the age of eighteen years then such child or children become co-trustees until the age of twenty one.

Or

2. "The equal share of my estate for my son *************, is to be held in trust by the Trustees. I appoint my Trustees to invest his share and distribute towards the family needs, maintenance, education, advancement or otherwise for the benefit in life of his family in their absolute discretion they think fit. Should he predecease me but leaving him, surviving a child or children then that child or children shall by way of substitution take the share which his, her or their parent would have taken if such parent would have been alive at the time of my death in accordance with paragraph (i) below. (Trustees in charge of minors share).

Your help would be greatly appreciated.

 

[Simon Pattison]

Hi Stephen,

You probably need to have a more in depth look at your estate and assets and consider ways that you can facilitate the money going to the grand kids. I say this as the child with issues could well be a prime candidate for a family provision claim - thus thwarting what you would like to occur.

 

[winston wolf]

I would suggest a testamentary trust (as apposed just putting it in trust) with he and the grandkids as beneficiaries of the trust. This could work as you are in Victoria. Get a specialist in will disputes to write the will. Put you reasons in your will.

He will most likely make a family provision claim and the provision of the trust may thwart his claim without affecting the other beneficiarys of the will.

 

[Stephen King]

I would suggest a testamentary trust (as apposed just putting it in trust) with he and the grand kids as beneficiaries of the trust, this could work as you are in Victoria. Get a specialist in will disputes to write the will. Put you reasons in your will.
He will most likely make a family provision claim and the provision of the trust may thwart his claim without affecting the other beneficiarys of the will.

Thank you WInston. Sounds like it may be the answer I am looking for. It is not a large estate by any means, but still would like to setup so he and his family are not left out, but also not have the carrot that may set him on the wrong path putting him back to square one.

Many thanks

 

[Stephen King]

Thank you WInston. Sounds like it may be the answer I am looking for. It is not a large estate by any means, but still would like to setup so he and his family are not left out, but also not have the carrot that may set him on the wrong path putting him back to square one. Many thanks Steve K

Winston & Simon Pattison. I thank you for the help and found a lot about it now. If you are knowledgeable with wills, What do you think of the wording?

I have written how I would have it in our wills and think I have worded it right. I also have been told to write a letter and explain why we have made this decision and include it with our wills.

Executors/Trustees are aware of the situation and know how to handle things when the time comes.
Testamentary Trust.

(i) The equal share of my estate for my son **************************, is to be held in a Testamentary Trust to be setup by the trustees. I appoint my Trustees to have full control to invest his share and distribute as needed towards his family needs, any financial commitments, maintenance & education of his children, advancement or otherwise for the benefit in life of his family in their absolute discretion.

However should he predecease me but leaving him, surviving a child or children then that child or children shall by way of substitution take the share which his, her or their parent would have taken if such parent would have been alive at the time of my death in accordance with paragraph (j) below.

(j) Should any of my children predecease me but leaving him, her or them surviving a child or children then that child or children are minors at the date of my death. A Testamentary Trust to be setup by the trustees to invest their share or shares.

I appoint my Trustees and give full control to distribute towards the maintenance, education, advancement or otherwise for the benefit in life of such child or children in their absolute discretion they think fit until they reach the age of eighteen years then such child or children become co-
trustees until the age of twenty one.

 

[winston wolf]

Hi Stephen,

What you have is good to take to a lawyer and build from there. Don't try and get it all done now.
The testamentary trust is made in addition to a will but does not come into effect until your death and this triggers the trust.

It is a document that describes who is the trustee and how the trust is to operate. From here, take what you have found and see a wills professional.

You and the lawyer need to inspect your total situation to make sure no or as few as possible gaps are left open.

Will & Estate Plannning - Testamentry Trusts