Right to reside clause
When planning your estate, it's essential to think not only about who will receive your assets but also about how those assets will be used and protected. One powerful estate planning tool often overlooked is the right to reside clause.
A right to reside clause allows you to give someone the legal right to live in a property you own after your death—without transferring ownership. It’s a way of balancing your intention to pass an asset (such as your share of a property) to a particular beneficiary, while allowing another person to continue living in the home.
Let’s explore how this clause works and when it might be suitable for your estate plan.
What Is a Right to Reside Clause?
A right to reside is a legal gift in your Will that grants someone—often a partner, child, or close family member—the right to live in a property you own for a certain period of time or under specific conditions. It is not a transfer of ownership, but rather a temporary arrangement that delays the full use or sale of the property by the beneficiaries.
This right can continue until a trigger event occurs, such as the resident's death, them moving out, or failing to meet conditions such as property maintenance or bill payments.
When Would You Use a Right to Reside Clause?
There are several situations where a right to reside clause is especially useful:
De facto partners with tenants in common ownership: Where each partner owns 50% of the home and wishes to leave their share to their children, they may grant their surviving partner a right to reside so they can stay in the property until death or vacating.
Partners not listed on title: If you own the property outright and your partner is not on the title, a right to reside allows them to remain in the home even though they don't legally own it.
Adult children living at home: If a child has lived with you long-term, a right to reside gives them legal security to stay in the home after your death.
Minor children: Some Wills include rights to reside for minor children, especially if the property is left to a testamentary trust. This ensures that children can remain in their home until adulthood.
How Does It Work Legally?
A right to reside clause is a formal legal provision that must be carefully drafted in your Will. Typically, the Will includes:
A gift of the property to a beneficiary or trust, subject to the right to reside.
Terms of the right—who gets to live there, whether rent-free or in exchange for covering costs (like rates, utilities, and insurance).
Termination events, such as:
The occupant’s death
Voluntarily vacating the property
Failing to meet responsibilities (e.g. property upkeep)
Reaching a certain age (e.g. until age 65)
The terms must be clear and enforceable. If poorly drafted, they can create confusion, conflict, and legal issues for executors and beneficiaries.
Can the Right Transfer to a Different Property?
Some people wonder whether the right to reside can apply to a substitute property. For example, could a surviving partner move and retain that right?
Technically, yes—but only with the agreement of the beneficiaries who ultimately own the property. It cannot be unilaterally enforced. This arrangement is known as a substitute property right to reside. However, it's complex and can prolong estate administration, so it’s only suitable in certain circumstances—usually in long-standing de facto relationships where both parties agree.
Legal Tips for Including a Right to Reside Clause
Work with a qualified estate planning solicitor: This clause is legally binding and needs to be crystal clear to avoid disputes.
Clearly define the occupant’s responsibilities: Include who pays the bills and how the property should be maintained.
Review regularly: As relationships and living arrangements change, your Will should be reviewed every 3–5 years.
Consider all beneficiaries: A right to reside benefits one person but delays access for others, which can lead to tension or family provision claims.
Why It Matters
The right to reside clause offers a compassionate way to support a loved one after your death—especially if they rely on the property as their home—while still honouring your broader estate distribution wishes. It’s particularly helpful in blended families or where someone’s financial security depends on continued housing.
Without such a clause, a surviving partner or family member could be left in legal limbo, leading to disputes or distressing outcomes.
Need Help Structuring Your Will?
If you’re considering a right to reside in your Will, it’s important to get the legal wording right from the beginning. At Vicca Law, we help Queensland clients craft clear and enforceable estate plans that safeguard their wishes and protect the people they love.
Book your free consultation with Lidia Vicca today at www.viccalaw.com.au and start building an estate plan with confidence.