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When drafting your will, one of the biggest considerations you may have is how to provide a home for your partner or another person without giving them ownership of the property, so that the property can eventually go to your beneficiaries.

There are two main pathways to achieve this: a right to reside and a life estate.

A right to reside and life estate are personal rights, meaning they can only be enjoyed by the person to whom you grant the right under your will. Although they have similarities, they are not interchangeable, and care should be taken in how they are worded in your will.

Right to Reside 

A right to reside can be created in your will through a clause containing any words to indicate that a nominated individual can occupy or reside in the property. In practice, this allows the person to live in your property from the date of your death until the person dies or vacates the property. The title of the property is not passed to this person, but rather it is held by your personal legal representatives as part of your deceased estate. The person with the right to reside is restricted because they cannot sell, rent or use the property otherwise than as a residence.

Usually, the person with the right to reside does not pay rates, taxes, levies and insurance cost, but if you do not want your estate to pay, you can stipulate that the right is conditional upon the person paying all the outgoings.  Normally the person pays utility charges.

If the property was exempt from land tax as your primary place of residence before your death, the exemption may continue where a person is granted a right of residency under the will and the person continues to occupy or moves in and uses the property as their principal place of residence. Under section 10 of the Land Tax Act 1956 (NSW), this person will be deemed the owner of the land for the duration of their residence in your property.

Life Estate

Life estates carry a wider scope of rights that extend beyond the right to reside in the property. The grantee, also known as the life tenant, is entitled to live in the property or derive an income from the property or use the property other than as their own residence for the remainder of their life. Rates, taxes, levies and insurances, as well as obligations to maintain and repair, are usually for the life tenant.

Upon the death of the life tenant, the property will not form part of the life tenant’s estate, meaning the life tenant cannot pass the property under their will or by intestacy to their heirs:  the property will essentially revert to your estate and can then be distributed to your beneficiaries.

Under section 20 of the Land Tax Management Act 1956 (NSW), for land tax purposes the life tenant is treated as the “owner” of the land. As such, the life tenant will be entitled to the principal place of residence exemption if they occupy the property as their residence  If the life tenant does not occupy the property as their principal place of residence, the life tenant will be liable for land tax and deemed the primary taxpayer, while the ultimate beneficiary of the deceased’s will becomes the secondary taxpayer.

If you are intending to include a right to reside or a life estate provision in your will, you must ensure that this provision is worded unambiguously so that your wishes are honoured. If you require any assistance with this arrangement, our solicitors experienced in estate planning can help. Their details are set out below.

This article was published on 25 June 2026 by Carroll & O’Dea Lawyers and is based on the relevant state of the law (legislation, regulations and case law) at that date for the jurisdiction in which it is published. Please note this article does not constitute legal advice. If you ever need legal advice or want to discuss a legal problem, please contact us to see if we can help. You can reach us on 1800 059 278 or via the Contact us page on our website. (www.codea.com.au).