Tim and Tina were killed in a motor vehicle accident. They had 2 children aged 6 and 4. In their Wills they had appointed Tina’s brother and his wife, John and Joanna, as guardians of the children.
John and Joanna knew that they weren’t bound to accept the appointment and responsibilities but did so willingly.
The children moved into John and Joanna’s home. John and Joanna had 4 children of their own. It soon became apparent that their house was not large enough to adequately house all of the children comfortably.
Tim and Tina had made provision in their Wills that the whole of their estate be divided equally between their children but the children could only access their inheritance when they were 21 years of age.
In addition there was no provision by Tim and Tina in their Wills for the guardians to have some financial support from the estate.
Tim and Tina left a sizable estate. Tim had been a successful advertising agent and Tina had inherited a number of investment properties from her father. Their estate totaled $3 million.
However, because there were no provisions in the wills to advance money for the benefit of the children prior to the children reaching the age of 21 years, there was no money available for the day-to-day needs of the children as they were growing up.
And, there was no money available to the guardians of the children to care and provide for the children in the most basic ways, such as accommodation and educational needs.
Could Tim and Tina have made better Wills? Could they have made provision, not only for the children, but for the guardians to provide for the children? The answer is YES.
In the Wills there should have been a power to enable money to be advanced to the guardians themselves, either by way of loan or gift, to enable the guardians to re-arrange their household to accommodate the children and not be out of pocket. Guardians need to be trusted, otherwise why appoint them. They need to have money available to them to provide for the children. Otherwise, the children are disadvantaged at the time when they are most vulnerable.
There also needs to be a power within the Will for money to be advanced for the educational and day-to-day expenses of the children while they are growing and prior to their reaching the magical age when they inherit the whole of the estate.
These considerations are extraordinarily important. They are often overlooked. It is difficult enough deciding upon who are appropriate people to be appointed guardians of infant children. It is up to your solicitor to assist you to make appropriate provision for the children and the guardians so that neither are disadvantaged financially. It is a common mistake by the inexperienced will drafter to have assets tied up to such an extent that they are unavailable to help the children as they grow; and, unavailable to help the guardians provide care and support for the children.
If you have any questions about estate planning or Wills please do not hesitate to contact our Wills & Estates Team.