THE Borneo Post with the expert help of Rockwills Trustee Bhd, the leading specialist in estate planning having pioneered wills and trust 28 years ago, is publishing a regular Q&A column on estate planning. It will feature questions which readers have in mind but don’t know who to ask”
Question 1: I want to write a will to benefit my children, but with conditions. I am a very family-orientated person and I hope my children will one day have their own family too.
So, I am thinking of giving them a share of my assets when they get married and even pay for all their marriage expenses since it is a costly affair.
But I am concerned of how can I prevent my children having a fake marriage so that they can claim what I have allocated for them? Please advise.
Answer: Having a well-planned and well drafted eill would give your executor clear instructions to be able to carry out your instructions, especially to address your concern about fake marriages.
As you would want to prevent your deception in claiming from the executor by faking a marriage, we would not recommend you giving your children the gifts in one lump sum.
Instead, we suggest you give your inheritance to them in a periodical manner or partially whenever the conditions that you set are fulfilled.
For example, you can provide different percentages of inheritance to them at different years marriage: say in the first year and every fifth year thereafter.
The longer that the children stay married with their spouse, the bigger can be their portion of inheritance, for instance.
Meanwhile, you can impose a condition on production of the marriage certificate and statutory declaration from witnesses to the marriage and/or appoint a protector to assist the Trustee in ascertaining whether the children’s marriage is still intact, and they are cohabiting as husband and wife.
Besides that, you can also add in a clause to cease payments to the children once they are separated or have gotten divorced.
Such instructions in the will should be carefully planned and drafted to prevent lengthy legal challenges by your beneficiaries. Hence, we suggest you engage a professional estate planner in helping you to plan for your will.
Question 2: I have a 40 hectare of agriculture land in Sibu, which I lease to someone who has been a very good friend of mine for 40 years.
I hope to give this land to my son, but can I force him to continue with the lease to my good friend?
Answer: Yes, the lease to your good friend will continue. If you are worried that your son will sell the land or unilaterally terminate the lease, you can have a testamentary trust in your Will.
A testamentary trust is an arrangement in your Will to control your beneficiaries’ inheritance upon your departure, where you instruct your trustee to hold the land subject to the terms of the lease for the remaining years.
When the lease period ends, you can instruct the land to be transferred to your son.
As the land will be held and managed by a trustee, you must consider carefully who should you appoint as your trustee.
The Trustee must be trustworthy and experienced in legal, accounting and tax matters since the land is receiving income.
As this is going to be long term arrangement, you should consider appointing a corporate trustee instead of an individual who may be fall sick or die midway acting as the trustee or who may abscond with the income received.
We suggest you seek professional advice from an experienced estate planner to learn more how to protect both your son and your friend’s interest.