I act for a mother with a child (6 years old) from an estranged relationship (never married). She wants to leave a Will leaving all of her estate on trust for her child until the child turns 21. The mother wants to ensure that her estranged partner does not receive anything under her Will. If mother died leaving the surviving child but then the child dies before achieving 21 years of age would the monies in the trust pass to the child’s estate (i.e. to the father)? If so, what’s the simplest solution to prevent this?
The gift to the child should be contingent upon them attaining age 21, with alternative beneficiaries specified in the event they fail to survive to 21. Whilst, initially, this could include children of the child, as there is no certainty that the child will be a parent there should also be default a gift to third parties. Should the child die without issue before attaining 21, the mother’s estate could end up passing as on an intestacy and, if they die after attaining age 18, the child’s entitlement under intestacy would have vested. This could therefore result in the child’s father receiving the whole estate.
If the mother is absolutely against even the remotest possibility the father of her child might benefit, she could also consider including within her will an ultimate default clause giving her estate to charity in the event all of her preferred beneficiaries should also have died.
You need to include a trust in default to ensure it does not go to the father, i.e. Someone else who will take in these circumstances.
All you need to do is provide a gift over if the contingency is not fulfilled so that on the child’s premature death the money goes to a charity or whatever.
Mrs J E Bennell
RLK SOLICITORS LTD