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Leaving A Bequest To A Minor Child (Vic)

The birth of a child often prompts someone to make or update their will. The child’s parent or another relative wants to make sure that the minor child is provided for in the event of their death. The will-maker (testator) usually makes a specific provision for the child, such as a cash amount, a percentage of the testator’s entire estate or an heirloom. However, it is important to note that a minor child cannot directly inherit in a will. This article looks at the consequences of leaving a bequest to a minor child in Victoria.

How To Leave A Bequest To A Minor Child In Victoria

The legal age of inheritance in Victoria is 18, except in the rare instance that a person over 16 but under 18 has permission to marry. If a beneficiary is still a minor when the testator dies, then the child cannot directly receive the gift. In that case, the executor automatically becomes a trustee of the bequest. As trustee, the executor must keep the item or funds secure until the child is eighteen. The testator should include specific provisions in the will to allow the trustee to make advances from the deceased estate for the child’s education, medical treatment and living expenses.

Wording A Bequest To A Minor Child In Victoria

It is in the interests of everyone that a will has clear intentions because, in case of uncertainty, someone will need to apply to the Supreme Court of Victoria for a legal interpretation. A testator can leave a bequest identifying the child by name or reference to their parentage. For instance, a testator can word a bequest to benefit “my children” or “my children: Harold, Elizabeth and Joan”. Any will that makes a bequest to a child should include a definition of the term “children”. For instance, the document can specify whether the term refers only to biological and legally adopted children or extends to include stepchildren and foster children.

Conditional Bequest

A testator cannot override the law to allow a child to receive their gift straight away. However, the testator can make a conditional bequest to stipulate that the child does not inherit until they meet certain conditions. In order to inherit, a beneficiary might need to marry or have a child, or more commonly, reach the age of 21 or 25.

For instance, a parent might leave their estate to their child but specify that the child only receives their share when they turn 25 or marry, whichever occurs first. This is a sensible precaution against the dangers of passing a sizable estate to a teenager. An executor acts as trustee of a conditional bequest until the minor reaches the specified age. In this scenario, the executor remains involved in the estate administration until then. As the relationship between a trustee and a minor beneficiary can stretch on for many years, the testator needs to select someone who can continue to exercise sound judgement over the trust.

Alternative Ways To Leave A Bequest To A Minor Child In Victoria

It is possible for a testator to pass a bequest to someone to use for the minor child’s benefit. A testator sometimes leaves a bequest in the parent’s hands to use in the child’s interests. The will can stipulate that the parent must demonstrate to the executor that they used the bequest for the child’s benefit.

What If The Child Dies Before The Specified Age?

Sometimes a young person tragically dies before they are old enough to receive their bequest. In that case, it is as if the child died before the testator. In that scenario, the bequest usually reverts to the residuary beneficiary, the person entitled to receive all of the “residual” estate. Alternatively, a will can designate a secondary beneficiary to account for a failed bequest. For instance, the testator can state that if a child dies before a certain age, their inheritance flows to a parent or sibling.

If there is no residuary beneficiary, the executor may need to distribute this bequest according to the rules of intestacy in the Administration and Probate Act 1958. These rules apply when a deceased fails to make testamentary arrangements for all or some of their assets. Under these intestate estate provisions, a failed bequest transfers to the deceased’s spouse, de facto partner and or children. If the deceased has neither spouse nor children, the order of succession privileges other close family members.

The team at Armstrong Legal has expertise in all wills and estates matters. Our solicitors can provide guidance on bequests to minor children, conditional bequests, and failed bequests. If you need advice about dealing with a bequest to a minor child in Victoria, please get in touch online or call 1300 038 223.

Dr Nicola Bowes

This article was written by Dr Nicola Bowes

Dr Nicola Bowes holds a Bachelor of Arts with first class honours from the University of Tasmania, a Bachelor of Laws with first class honours from the Queensland University of Technology, and a PhD from The University of Queensland. After a decade working in higher education, Nicola joined Armstrong Legal in 2020.

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