Wills Lawyers NSW

This is a particularly complex area of Will drafting. Certain wording can mean your children receive an “expectant share” in your estate when you die, but only take “possession” of that share when they reach the stipulated age. For example, the following clause will work in that way:

“I give my estate to such of my children who survive me and attain the age of 21 years.”

Alternatively, you may use wording that means that your children will not to receive a share in your estate unless they turn 21 years of age. For example:

“I give the whole of my estate to such of my children who survive me provided they attain 21 years of age”; or

“I give the whole of my estate to such of my children who survive me if they attain 21 years of age.”

The difference might appear subtle but it has many flow-on effects.

In the first case, your children are said to have a “vested interest” in your estate. They simply don’t take “possession” of that interest until they reach 21 years of age.

However, the fact that your children have a vested interest in your estate also means that your children have the right to ask your executors to transfer their respective shares to them as soon as they reach the legal age at 18 years, regardless of the age you stipulate in the Will.

In the second case, the children’s share in your estate depends entirely upon them attaining 21 years of age. This means they have no right to request the transfer of the property before they reach that age.

A carefully worded clause should also be included in your Will to cover the possibility that a child might die before turning 21, otherwise their share could lapse.

It is important that you discuss these matters with your solicitor when giving instructions for your Will to ensure your Will achieves your objectives.


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