06 August 2021
Wills - Child maintenance and family law
My divorced client wishes to arrange a will.
There are family law orders which state that their ex-partner is to contribute 50% of the cost towards the schooling and health expenses of their 2 minor children.
Should my client pass away whilst the children are under 18, they would like to ensure that their executors refer to the family law orders and their ex-spouse contributes towards their children's schooling and health. Therefore, whilst the estate funds are held in trust, their executors apply only 50% of the estate funds towards the children's schooling and health.
Can this be included in the will? Is it necessary to do so?
Thank you for the question.
The proposed condition in the will unnecessarily restricts the executors’ ability to provide for the children if the ex-spouse does not comply with the orders.
On the testator’s death provision for maintenance of the children is paid out of the testamentary trust to the children’s guardian to apply as they see fit or as the will may direct.
If there are no court orders to the contrary, on the passing of the testator the other partner is either sole guardian of the children, or the joint guardian with any guardian appointed by the testator: s 135 Marriage Act 1958. If your client is concerned about the potential care of the children by the ex-spouse, they should appoint a guardian.
On the passing of the testator the appointed guardian would ensure the remaining parent’s compliance with the family law orders or bring a contravention application for breach of those orders if necessary.
Regards
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