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Joshua
Joshua, Lawyer
Category: Law
Satisfied Customers: 26069
Experience:  LL.B (Hons), Higher Prof. Dip. Law & Practice
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Can you state in a will that an inheritance for a minor (12yr

Customer Question

Can you state in a will that an inheritance for a minor (12yr old) cannot be taken until they attain the age of 30yrs.
Submitted: 3 years ago.
Category: Law
Expert:  Joshua replied 3 years ago.

Joshua :

Hello and thank you for your question. I will be very pleased to assist you. I'm a practicing lawyer in England with over 10 years experience.

Joshua :

May I ask a very brief summary of the reasons you wish to impose a thirty year condition please? Do you for example have concerns about the individuals money management?

Customer:

I wish to do this because he mother is an alcoholic and i am frightened that she may put pressure on her daughter to get hold of the money if it was made at an earlier age.

Joshua :

thank you. The advice you have received is in a very narrow sense not incorrect however the sense is so narrow that it is in practice not correct advice...

Joshua :

it is quite possible to place any condition you wish and inheritance you can make a legacy subject to the recipient reaching any age you wish however there was a significant decision in the courts, namely the case of Vortier in which a court ruled that children could sue for the money at 18 regardless of any contingency. as a result, such simple contingencies are no longer strictly legally enforceable and this is likely to be the basis of the advice you have received

Joshua :

in practice however, the decision in the courts has not changed a great deal because in order for a child to exercise their rights to seek an inheritance earlier than the contingency provided for in the will, they would need very significant legal knowledge of the above case and would need to issue court proceedings, both of which are not common for children to do and therefore contingencies are still commonly used. However, as a result of the above case they can be overcome and therefore if you wish to absolutely guarantee that your beneficiary does not inherit until a later age, you need to look at slightly more sophisticated options. Would you like me to outline what these are?

Customer:

I take it then that i can put on this restriction to 30yrs and it is quite legal.

Customer:

Yes please

Joshua :

yes, it is quite legal for you to place any restrictions you wish in your will however, as above, as a result of the above case, it is not possible to guarantee that such restrictions will take effect because the beneficiary can take legal action to inherit once they have reached 18 or the such action is not commonplace as above.

Joshua :

if you want to guarantee that your restriction will be effective, you will need to consider a slightly more sophisticated trust, namely a protective trust or a discretionary trust. both types of trust can guarantee that the beneficiary cannot access your inheritance until such time as you direct

Joshua :

from what you say, a protective trust may be the better option here whereby your beneficiary for example can have a right to the income from the capital but is not entitled to the capital itself until he reaches a given age. Alternatively, a discretionary trust provides such trustees as you direct have absolute discretion over the trust funds and you can leave something known as a letter of wishes to direct the trustee's actions.

Joshua :

it may be that you will need to ask a solicitor to assist you in preparing will incorporating either of the above trusts as many will writers are not qualified to advise upon the same they some will writers will undertake such work as will writing is not regulated and therefore they can do what they want. Do ensure you are satisfied with the advice you receive in preparing your will if incorporating either of the above types of trust and if in any doubt, consider asking a solicitor to prepare the same rather than will writer.

Joshua :

in many cases however including a simple contingency, whilst not absolutely guaranteed for the above reasons, does in practice work on the basis that the beneficiary involved is unlikely to be aware of his right to receive the money earlier and even if he is, is unlikely to take legal action to do so. therefore many people still opt for this option over a protective or discretionary trust for its simplicity. it depends how important the matter is to you and the amount of money involved

Joshua :

Is there anything above I can clarify for you any further?

Customer:

Thankyou for you help, i assume then from your last answer that i can make it 30yrs as they will probably not be aware that they could receive it earlier.

Joshua :

Exactly so - there is no problem with including a contingency of 30 years - just remember it cannot be guaranteed as above unless you provide for a full protective of discretionary trust. This is probably only worth considering if the inheritance is substantial and you are very concerned to ensure the 30 years is cast iron.

Joshua :

Are you happy with the information I have provided to you above or is there anything above I can clarify for you any further?

Customer:

thankyou i think thats all .very helpful.

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