Quick summary:
- You’re generally free to leave assets to your grandchildren, but family provision laws mean your children may still have a claim
- Minor grandchildren can’t hold assets directly – your Will needs a trustee and clear terms
- Adult grandchildren can receive gifts outright, though a testamentary trust often makes more sense
- A testamentary trust can protect inheritances from future relationship breakdowns or creditor claims
- Good planning anticipates the risks – not just who gets what, but how it’s structured and protected
Wanting to provide directly for your grandchildren is a deeply human impulse – a wish to set a clear course for their future, and perhaps to ensure your legacy reaches them in a meaningful way.
Whether you want to bypass your children entirely, supplement what they receive, or protect against circumstances you are concerned about, the law gives you freedom to do so.
But freedom and certainty are different things. Getting this right requires careful planning and a steady hand.
It is your choice to make (kind-of)
Subject to the rules around family provision – discussed below – you generally have the freedom to leave your estate to whoever you choose. You are not legally required to leave anything to your children, and you can direct as much or as little as you wish to your grandchildren. At law, this concept is called ‘testamentary freedom.’
However, alongside this testamentary freedom, the law imposes an obligation on Will-makers not to fail to make adequate provision for certain eligible persons with genuine need – including adult children.
The courts expect Will-makers to act in accordance with generally accepted community standards as ‘wise and just testators.’ In applying this standard, a testator’s actual wishes may be overridden.
The family provision question
The most significant legal risk in bypassing your children in favour of grandchildren is a family provision claim. Under the Family Provision Act 1972 (WA), eligible persons – including adult and minor children – can apply to the Supreme Court to receive further provision from an estate if they can demonstrate they have genuine need and that a Will fails to make adequate provision for their proper maintenance, support, education, or advancement in life.
If a claim succeeds, the court can order provision out of your estate regardless of your express wishes. The strength of any claim depends on the applicant’s financial circumstances, their relationship with you, the size of your estate, and other factors.
This does not mean you cannot provide primarily or exclusively for grandchildren – it means that if you have concerns about a possible challenge, legal advice is essential.
Minor grandchildren require special consideration
If your grandchildren are under 18 at the time of your death, they cannot legally hold or manage assets directly. Any gift to a minor needs to be held on trust until they reach an age you specify (and if you don’t specify, the default position is 18).
This means your Will needs to appoint a trustee to manage those funds, define the terms under which money can be accessed, and set the age at which the grandchild receives assets outright.
Getting these terms right matters – too restrictive and the trust becomes inflexible; too open and the assets may not be protected in the way you intended.
Leaving assets to adult grandchildren
Leaving assets to adult grandchildren is more straightforward, though you may still want to consider whether a testamentary trust – a trust arising under your Will – offers advantages. These can provide meaningful tax benefits for income distributed to grandchildren and protect assets from relationship property claims further down the track.
Keep your grandchildren’s inheritances safe
Structure it well, and it will stand.
Providing for your grandchildren is a meaningful act – but its impact depends entirely on how it’s done. A testamentary trust can protect an inheritance from relationship breakdown, creditor claims, and the unpredictability of life. And a Will that anticipates a potential family provision challenge – with clearly documented reasoning and carefully considered terms – is far harder to overturn than one that doesn’t.
At Solomon Hollett Lawyers, we help families think beyond the immediate gift – structuring wealth transfers that protect what matters across generations. Book a confidential consultation with our estate planning lawyers to talk through your options.
Frequently asked questions about leaving assets to grandchildren
Can I leave my entire estate to my grandchildren and nothing to my children?
Generally yes – testamentary freedom allows you to distribute your estate as you choose. However, adult and minor children are eligible to bring a family provision claim under WA law if they can demonstrate genuine need and that adequate provision wasn’t made for them.
What happens if I leave assets to a grandchild who is under 18?
A minor cannot legally hold or manage assets directly. Your Will needs to appoint a trustee, set the terms under which funds can be accessed, and specify the age at which your grandchild receives the assets outright. Without these instructions, the default is age 18.
What is a testamentary trust and do I need one?
A testamentary trust is a trust created under your Will that comes into effect on your death. It can offer significant tax benefits for income distributed to grandchildren and protect inherited assets from future relationship breakdowns or creditor claims – making it worth serious consideration for most estate plans involving grandchildren.
Can a testamentary trust protect my grandchild’s inheritance if they divorce?
Yes, in many cases. Assets held in a testamentary trust are generally better protected from a grandchild’s future relationship property claims than an outright gift held in their personal name.
Do I need a lawyer to leave assets to my grandchildren?
Given the interplay of family provision laws, trustee obligations, and tax considerations, legal advice isn’t just recommended – it’s essential. The difference between a carefully structured estate plan and a basic Will can be significant, both financially and legally.
