About Wills?

Question

I live in Australia and when you are 18 you are legally classed as an adult. You can drink you can smoke, you can vote. My mother left my son $50,000 in her Will, but he is not allowed to have access to this money until he is 21. He is 20 now and would like to have access to his money, if not all of it...$10,000 of it. My sister is executor of this Will...he has asked her for this money, but she is ignoring his phone calls. One solicitor advised me that because he is legally an adult, he can get this money. My son just spoke to a solicitor then who said what is said in the Will stands and if it says 21, then he cant get it till he is 21. Can anyone throw any more light on this subject.

Answer 1

The terms of the will say that your son is to receive a bequest when he is 21 years of age. The legal age of majority in Australia is 18. The solicitor is right in saying that because he is an adult, he can get the money. Specifically, he would be legally bound if he signed a Receipt and Release document for the bequest. The fact that your sister is holding the funds for no other purpose than making him wait an extra year is, to my mind, holding it as a "dry trust" (passive trust). It is my opinion that under the ancient Statute of Uses, if the "use" were executed, the funds would go to the son forthwith.

The other solicitor may be correct in stating that it was the testatrix's intention that the son receive money at age 21 and not before.

I think if it went to a probate court, in all likelihood the court would order the funds to be released to the son.