Question
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09 May 2015

We are the children of our own deeds

Wills, Powers, Estates & Family Provision Claims
Victoria

Asked

Dear Sir/Madam, can a deed of family arrangement - to settle the threat of a challenge to the will - be entered into when one of the beneficiaries is under the age of 18? We look forward to your comments.

Answered

The entitlement of minor children can be augmented but not diminished under a deed of family arrangement. Any arrangement that would reduce the entitlement of a minor would require the court's approval. On this understanding it is difficult to see a challenge by the minor on attaining their majority.

If the circumstances were suitable then a deed could be signed by all parties except the minor on the assumption that they will, in due time, join in the transaction. The minor does not have to be named as a party to the deed provided that they are referred to in such a way that makes it clear that the deed was made on the supposition that the minor would concur in the arrangement. The agreement of the minor becomes an implied condition of the validity of the arrangement, and if it is not obtained the arrangement is not binding on any of the parties to it: see Peto v Peto (1849) 16 Sim 590; 60 ER 1003 and Re Morton; Morton v Morton [1932] 1 Ch 505 at 508.

If the minor is named as a party to the deed, notwithstanding that he or she has not executed the deed, they may sue to enforce any covenant contained in the deed: see Clement v Henley (1643) 2 Roll Abr 22.

Regards Mentor