A member asked almost 9 years ago

Wills for the care of a child

My partner and I separated 18 months ago and it's time to update my will. I want to leave all my money to my son, but I want the income generated from my investments to be used to support him until he's 18, so that my ex isn't disadvantaged. However, I do not want my ex to have control over my investments during that time. What is the best way to achieve that? (e.g. is it to set up a trust, with someone else as the trustee?) And can I instruct the trust about what to do if I die? (e.g. I want my life insurance to be used to pay off my mortgage, and then the house can either be used to house my son, or rented out and the income used can contribute towards the cost of raising my son)

Chris Wall
Solicitor/Director at Walker Gibbs and King P/L

Your ex remains an "eligible person" under the NSW Succession Act, so the first step is to make sure you have a property division with the ex, and include in any Binding Financial Agreement appropriate clauses to help prevent the ex from making a claim. There are other things that can be done, depending on the amount of assets involved and the chance of that happening.

Normally anything left to someone who is under 18 at your death can be used for their benefit, for things such as education, support etc, and it would be your executor who would decide what should be paid.You should appoint someone you trust, and give them a gift instead of "commission" or payment. One option is even to appoint your ex with or without another personif you die before your son reaches 18 or 21 (and only for the period until he reaches say 21 etc) , but if you die after that, to appoint your son himself. Your executor is bound by the terms of the will and the trusts set up by it.

You canput inspecific terms of the trust which operate as binding directions to your executor, but beware of "ruling from the grave" too much...you don't know when you will die, you don't know who will survive you,and you can't assume you will own then what you do now.

Any good lawyer/estate planner will get details of your assets, super,any other financial resources (eg the life insurance), exactly who owns each thing, details of your family, and then what you want to do, and only then consider the best way to achieve your objectives in a costs effective way.

Answered almost 9 years ago   Legal disclaimer

Nicholas Stewart Kristy Howell
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