Joan* has a son with Asperger’s who lives with his father. She wants to leave the son a legacy in her will but does not want the father to be able to control it. She asks estate planning lawyer Rod Cunich how best to make this happen.
Can you put certain caveats on a person who is a beneficiary to my will?
My son is 30, has Asperger’s and lives with his father. His mental age is 18 and he doesn’t have any say in how his pension is spent, let alone get any spending money.
I want to leave him a legacy, but I don’t want his father to get his ‘grubby hands’ on it, as I know that my son won’t see any benefit. It will go into ‘consolidated funds’ and won’t be my son’s to do with what he wishes. His father controls all the money going into the household.
I would like to insert a caveat into my will ‘that while my son’s father shall live, my legacy will be held in trust for my son until his father is deceased’. Then the legacy will be transferred to my son. Can this be done? Is it legal?
A. This can be done, but it may deprive your son of necessary benefits until his father dies. It is also likely that your son (prompted by his father) would challenge the will to gain immediate access. It may be better for your will to set up a trust for your son when you pass away. That way, the trust can provide benefits directly to your son on a needs basis without his father controlling the money.
The big challenge is to find a reliable and trustworthy person to act as trustee to manage the fund for your son. I recommend you see a local estate planning specialist (ask your local law society for a recommendation) and they will be able to assist you.
*Not her real name
Rod Cunich is a lawyer with more than 30 years’ experience who specialises in estate planning. If you have a question for Rod, simply email it to: [email protected]
Disclaimer: This information has been provided by Rod Cunich and should be considered general in nature – legal advice should be sought.