I am about to make a Will and wanted to know if it would be a good idea to include Trust Funds for my grandchildren?
When I die, would my children be able to contest this Will as I intend not to provide for them as they are all settled with their own business and feel that my Grandchildren would make better use of the assets.
Trust Funds in Will’s are commonly used when money or property is being left to children under the age of 18 years of age or to someone who does not have the physical or mental capacity to look after themselves financially.
If you would like to create a Trust Fund for your grandchildren in your Will, there are two types of trust funds that you can create. The first one is where the money or property left to your grandchildren is managed for them until they reach a certain age. The second one is where the money or property is managed for your grandchildren for the entirety of their life, based on their financial needs throughout their life.
To decide what sort of Trust Fund would be appropriate and how to minimise any taxation on the Trust, you need to speak to a lawyer with expert experience in Wills and Estate Planning.
Your children would be able to challenge your Will after you die, as they are eligible people under the Succession Act.
However, to be successful in the challenge, they would need to show the Court that you have not made adequate provision for their proper maintenance, education or advancement in life.
When considering whether adequate provision has been made the Court will look at the following factors:
- The nature and duration of your relationship with your children.
- The nature and extent of your Estate and any liabilities of the Estate.
- The financial resources (including earning capacity) and financial needs of your children.
- Any physical, intellectual or mental disability of any of your children.
- The age of your children.
- Any contribution (financial or otherwise) by your children to the acquisition, conservation or improvement of your Estate or to your welfare.
- Any provision you have made to your children during your lifetime.
- Your testamentary intentions which can include evidence of statements made by you on why you have decided to leave all of your Estate to your grandchildren.
- Whether any of your children were being partly, or wholly maintained by you.
- Whether any other person is liable to support your children.
- The character and conduct of your children before and after your death.
To minimise the risk of your Will being successfully challenged, you need to have it drafted by an expert Wills and Estates Lawyer who can minimise the risk of the Will being successfully challenged by your children.