Can Joan provide for son and block a controlling father?

Joan wants to leave her son a legacy but block his controlling father.

Can Joan provide for son and block a controlling father?

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.

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Q. Joan*

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: newsletters@yourlifechoices.com.au

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    Disclaimer: This information has been provided by Rod Cunich and should be considered general in nature – legal advice should be sought.





    COMMENTS

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    MICK
    24th Apr 2019
    10:15am
    Think about a Testamentary Trust. It costs a bit to set up and likely some lawyer costs to operate and audit but it keeps those who had their own self interests at heart at bay.
    It probably comes down to the size of your estate. Maybe just put all of your assets in your child's name late in life and nominate a legal carer if that is possible.
    Digby
    24th Apr 2019
    10:59am
    very sound advice Mick
    Jacka
    24th Apr 2019
    10:35am
    Good advice Mick well said she should follow up on this. She doesn't seem to have much of an opinion of her ex-husband who has obviously been looking after her son for many years and doing the very hard yards. I find it somewhat unusual the father of a child of divorce be granted custody of the said child, unless both parties agreed at the time or the mother was considered irresponsible by the courts. Perhaps a little sour grapes. However both parties should always be working together in the best interest of the child especially in the case of mental health. What do you think ? Cheers Jacka.
    SuziJ
    24th Apr 2019
    12:25pm
    Jacka

    You live through the experience and tell me that it's not hard!
    gillham
    24th Apr 2019
    6:14pm
    What SuziJ. 'Not hard' for 98% of divorced and separated from their children, who are fathers, not mothers.

    If you really knew fathers, you would know that no value in life even comes close to their children.

    This article is a retrograde in its gender convenience selection.

    And for those a bit slow in the head, a medically and physically disadvantaged child should not be the basis of such an article.
    Rae
    25th Apr 2019
    6:42am
    I agree gilliam. We don't know the issues the father may have trying to protect his son from impulsive and dangerous behaviours. There could be very good reasons for keeping funds limited that only the father would know as it appears these two parents are not working together for their son.
    SuziJ
    4th Jul 2019
    9:53am
    Gillam, this lady was the primary carer of her son until he left school, so for the first 16 years of his life, the mother was 'on the scene'. It was the son's choice to move to far away very small towns to live with his father, not hers.

    The son is now well into his 30s, so he has a say as to where he lives.

    As to the father, he's very controlling. I knew the couple whilst they were married, so have seen the behaviours first-hand.

    If the father goes first, then the son will have to move to 'supported' accommodation in the city where his mother lives. He cannot move in with her, as she has a small unit which would not be big enough for the two of them.

    The article is in no way retrograde in its gender convenience selection, nor is the medically & physically disadvantaged child the basis for the article.

    The article is based on experience of knowing the father very well. They were married for 14 years, and it would have been 40 years late last month that they married.

    When the father stops all contact with the mother, then it's the father's fault that the son hasn't a relationship with the mother, not because of the mother's choice not to contact the child!
    Watto
    24th Apr 2019
    3:57pm
    Too much trouble to look after your son because he is not perfect. And all you can do is have a go at his father. Do them both a favour and stay out of their lives.
    Triss
    24th Apr 2019
    4:52pm
    You don’t know that, Watto. You’re putting an opinion as fact based on no knowledge at all.
    gillham
    24th Apr 2019
    5:16pm
    Watto, Triss is correct. The article cannot have Social reverse. That is what our culture depicts habitually ie the protected species.

    Correct. I have had enough of it.
    Miss Elizabeth
    24th Apr 2019
    4:54pm
    If Joan thinks that her son is being financially abused, she should consider making an application to the appropriate authority for his (son's) finances to be managed by The Public Trustee including the management of his current pension.
    gillham
    24th Apr 2019
    5:33pm
    What if his father is doing a good job. Is that out of the question.
    SuziJ
    4th Jul 2019
    9:57am
    The father is restricting what the adult son is doing. He's not letting the son explore any options as to getting a job, moving out to be independent. He was very controlling when he was married to the mother and is now displaying the same behaviour with his son.

    There's no contact with the mother, as the father restricts all contact. Therefore he's isolating the son and himself.

    This is from someone who knows the situation very well.
    gillham
    24th Apr 2019
    5:13pm
    Well at least Mick is consistent with current legislation. There male (father) has the character fault until he proves he doesn't. The wife can lodge character assassination on any unproven basis. The male (white) is wrong. The father is wrong. The mother who does not look after the child which has medical difficulties is correct.

    This article epitomises the Social approach to gender based difficulties.

    WHY IS A FEMALE (MOTHER) NOT DEPICTED AS THE PROBLEM AREA. CAN THE GENDERS BE REVERSED.
    SuziJ
    4th Jul 2019
    9:58am
    It was the child's decision to live with his father, after he completed his 'formal' schooling. It wasn't the mother's choice that the son move to live with his father!
    gillham
    24th Apr 2019
    5:36pm
    I will add another comment. If the father is the legal carer, how can someone else appoint a trustee.
    Paddington
    24th Apr 2019
    8:56pm
    What is wrong with a mental age of 18? I am pretty sure a lot of people are no more than that. He could look after himself in his own place and lead his own life.
    People with Aspergers lead normal lives.
    I did not like the word, ‘grubby,’ either as it says more about her than the father.
    Why does he have custody?
    Household expenditure includes the quality of life he shares with his father.
    Insufficient information has led to other possibilities.
    The money could be used setting the boy up as an adult as well. 18 year old level of understanding is pretty good as I stated.
    SuziJ
    4th Jul 2019
    9:59am
    The father doesn't have 'custody'. The child decided after his formal schooling that he wanted to live with his father!