03 August 2018
Wills - Testamentary discretionary trusts
I am preparing a will. The testator wishes to give the executors/trustees a property to live in, BUT if they want to sell the property, they are to receive half of the sale proceeds and they have the discretion as to who gets the other half share.
Also, the executors/trustees are to use their discretion as to who inherits the remaining balance of the estate.
Can the executors/trustees use their discretion in these two issues, without going into a trust situation?
Thank you for the question.
Testamentary capacity cannot be delegated. A trust is necessary.
The will can create a testamentary discretionary trust in relation to the net assets of the estate, with the executors as trustees and the executors plus others either named as the beneficiaries or defined as members of a class. The trustees can have discretion as to the payment of income and capital to whichever of the beneficiaries they decide.
However, in relation to the house and the proceeds of sale of the house, the powers and responsibilities of the trustees must be stipulated in the trust. For instance, the trust might provide that the trustees may reside in the house until sale, whereupon one half of the proceeds shall be paid to the trustee and the other half to other beneficiaries, but not to the trustee, in such proportions as the trustee determines. If the rest of the estate is to be paid to the beneficiaries, not including the trustee then the trust must say so.
There are several By Lawyers precedent wills which create testamentary discretionary trusts, as well as a library of testamentary discretionary trust clauses.
Regards
Mentor
By Lawyers has adopted a privacy policy to comply with its responsibilities under governing legislation.
The policy applies to all private information provided to By Lawyers which is collected, held, used or disclosed in the course of By Lawyers offering and providing its services as defined in its Terms of Service on its websites.
By Lawyers collect and hold information relating to the provision of its services to subscribers. This information may include, but is not limited to, names, addresses, contact and employment details, payment details, information supporting document automation and metadata.
Private information is collected at the time of registration and subscription and during the course of using the By Lawyers services and in any email, telephone or other exchange of information.
Private information is received and held mainly in electronic data form but may occasionally be received and held in paper form. In either case, By Lawyers takes the security of private information very seriously and uses appropriate cybersecurity and other systems to protect that information.
By Lawyers do not store credit card numbers. Once entered into the By Lawyers website at the time of subscription, subscribers’ credit card numbers are held in a secure online gateway by a third-party contractor on By Lawyers’ behalf and can only be used for automatically charging agreed fees. By Lawyers does not have access to the credit card numbers of subscribers apart from the last 4 digits.
By Lawyers uses private information:
Subscribers and registrants may access their private information by logging into their account. If assistance is required email askus@bylawyers.com.au.
By Lawyers is an international business and its support services may be situated outside the subscriber’s jurisdiction.
By Lawyers comply with privacy laws in all countries in which it operates.
If a subscriber believes that By Lawyers has breached this policy or the applicable legislation they may:
By Lawyers is committed to good communications and will work with the subscriber towards a satisfactory resolution.
By Lawyers may use 'cookies' on its websites. A cookie is a small text file that websites place on your computer. Cookies are used so By Lawyers websites can remember your preferences. The use of cookies is intended to improve the experience of By Lawyers Services.
In some cases, cookies may collect and store personal information. Internet browsers can be adjusted to disable cookies or to warn when cookies are being used. Disabling cookies reduces the ability to take advantage of the improved website experience that cookies offer.
Use of By Lawyers Services via the Mentor website is conditional upon acceptance of the By Lawyers Terms of Service and these Terms of Use. By Lawyers reserves the right to update the Terms of Use at any time without notice. The current version is published here.
Subscribers are entitled to ask Mentor any reasonable question on any area of Australian law in relation to which By Lawyers publishes guides and precedents, except for Western Australia, Tasmania, ACT and Northern Territory. Questions may only be general in nature and must not identify any actual client matter.
Mentor answers are provided by reference to the information in the By Lawyers guides and precedents and by experienced practising lawyers who are either employed in-house by By Lawyers or who are external authors for By Lawyers. This is part of By Lawyers Services as defined in the By Lawyers Terms of Service. All Mentor subscriptions are subject to the By Lawyers Terms of Service.
Mentor answers are not legal advice. Mentor answers provide general guidance to assist subscribers with the issues identified, or the issues best understood by Mentor to be identified, in the subscribers' questions. Mentor answers are not intended to be and may not be a definitive, 'best practice' or even an ultimately correct answer to subscribers' questions. Rather, Mentor answers are intended to assist subscribers to locate relevant and helpful information, to consider pertinent points and to address the issues raised by the question in a general way, based on reasonable practice, knowledge and experience in the legal profession. Subscribers are required to use their professional judgment and skill in applying the information in any Mentor answer to their particular issues.
Mentor provides general answers only and will not give specific advice about any actual client matter. Mentor may decline to answer any client specific question at its absolute discretion.
Mentor answers may include references to content in By Lawyers publications. Any such references create no obligation upon By Lawyers to provide access to those publications other than by way of separate subscription on normal commercial terms.
All subscriptions to publications from By Lawyers Holdings Pty Ltd ABN: 96 098 976 624 (‘By Lawyers’) are subject to these terms.
Through its websites, By Lawyers provides online access for subscribers to a variety of publications, content and resources, including legal guides, matter plans, commentaries, precedents, forms, reference materials, articles, bulletins, news and updates posts, Mentor services, audio and video recordings, compositions, software, communication services, artworks, products and product information ('By Lawyers Services').
The websites and By Lawyers Services are provided subject to these Terms of Service and the provisions of all applicable laws relating to the exploitation and protection of intellectual property, in relation to which By Lawyers assert and reserve all rights.
DISCLAIMER
By Lawyers’ provision of By Lawyers Services does not constitute legal advice, financial advice or any other type of professional advice.
By Lawyers Services is a product designed for and marketed to lawyers, licensed conveyancers, paralegals, other legal support staff and law students (‘Legal professionals’).
Some By Lawyers Services may be applicable for accountants, financial consultants and other professional advisors (‘Other professionals’).
By Lawyers Services are not consumer products, nor consumer service, nor goods and services of a kind ordinarily acquired for personal, domestic or household user consumption.
By Lawyers Services are intended to assist Legal and Other professionals in delivering their professional services to their clients, but the facts of each case will be different and reliance upon By Lawyers Services may not always be appropriate.
Legal and Other professional subscribers must exercise their own professional skill and judgment when choosing and using the By Lawyers Services to assist with providing their professional services. Subscribers who are Legal or Other professionals must satisfy themselves that By Lawyers Services are appropriate for the particular case or circumstances of intended use. By Lawyers does not warrant that By Lawyers Services are free of defects, nor fit for any specific purpose. By Lawyers accepts no liability for any errors or omissions in By Lawyers Services, nor for any loss or damage allegedly resulting from or connected with the use of any By Lawyers Services.
Subscribers who are not Legal or Other professionals use By Lawyers Services strictly at their own risk and with the explicit acknowledgement that they are not purchasing consumer goods and services and are not receiving any legal or other professional advice.
By Lawyers recommends that any subscribers who are not Legal or Other professionals seek legal advice about any particular case or circumstances for which they intend to use By Lawyers Services.
SCOPE AND LIMITATION OF USE
Subscribers may use By Lawyers Services to:
Subscribers may not use By Lawyers Services to:
In the event of any unauthorised use of By Lawyers Services by a subscriber, By Lawyers may take any applicable action at law, including seeking urgent injunctive or declaratory relief, seeking an account of profits, or claiming damages that By Lawyers considers appropriate, or may otherwise reserve any such rights. Reservation of any such rights will not constitute their waiver.
TECHNOLOGY
Use of By Lawyers Services requires a compatible device, Internet access and certain software, any or all of which may require updates or upgrades from time to time. Because use of By Lawyers Services involves hardware, software, and Internet access, a subscriber’s ability to use By Lawyers Services may be affected by the performance of these factors. High speed Internet access is strongly recommended. Subscribers acknowledge and agree that such system requirements are entirely their own responsibility and may change from time to time.
CANCELLATION FOR BREACH OF THESE TERMS
By Lawyers in its absolute discretion may immediately suspend, terminate or limit the access of any subscription to By Lawyers Services if By Lawyers consider on reasonable grounds that the subscriber is in breach of these Terms of Use.
ACCOUNT INFORMATION
Subscription to By Lawyers Services requires registration, selection of a password and a username which is the subscriber’s email address and entry of a valid payment card for billing (‘Account information’).
Subscribers are responsible for the accuracy, currency and confidentiality of all Account information.
Subscribers are responsible for all access to the account and any usage of By Lawyers Services that occurs under the subscriber’s account, unless the subscriber has notified By Lawyers of any unauthorised access or use of the Account information, or any other relevant breach of security. By Lawyers will not be liable for any loss that a subscriber may incur as a result of someone else using their Account information, either with or without the subscriber’s knowledge.
By Lawyers is bound by and complies with applicable privacy legislation. By Lawyers keep all Account information confidential and secure. If there is ever a data breach which By Lawyers has reason to believe could cause harm to subscribers it will be promptly reported and disclosed in accordance with the Privacy Act 1988 (Cth). Please read our Privacy Statement for more information.
THIRD PARTY WEBSITES
By Lawyers websites and By Lawyers Services contain links to third party websites ('Links').
Occasionally these Links may not work due to factors beyond By Lawyers’ control. By Lawyers monitors all Links and repairs any ‘broken’ Links as soon as possible. However, there is no obligation upon By Lawyers to ensure that Links are operational and subscribers have no entitlement to any refund or compensation where Links are inoperable for any period.
By Lawyers makes no warranties and accepts no liability for the Links including their content, accuracy, currency or reliability. Views or recommendations provided in the Links do not necessarily reflect those of By Lawyers.
HOW TO SUBSCRIBE
Note: By subscribing to By Lawyers Services, the subscriber is agreeing to these Terms of Service.
To subscribe to a product on the By Lawyers website, complete the following steps:
DELIVERY
By Lawyers Services will be made available to the subscriber as soon as the credit card payment is processed. Confirmation and an invoice will be sent to the email address provided.
CANCELLATION BY SUBSCRIBER
By Lawyers subscriptions have a minimum subscription period during which the subscriber cannot cancel the subscription and remains liable for payment. After the minimum subscription period the subscription continues until cancelled by the subscriber and failure to pay shall be deemed cancellation.
If the subscriber cancels within the minimum subscription period, the cancellation will take effect at the end of that period. The subscriber will continue to be billed for the subscription until the end of the minimum subscription period.
To cancel a subscription, email support@bylawyers.com.au.
NO REFUNDS
Refunds are not issued for payments made in relation to any By Lawyers subscriptions. If a subscription is cancelled, access to the publication will continue until the end of the subscription period and no refund will be made.
AGREEMENT TO PAY
The subscriber agrees to pay for any subscriptions to By Lawyers Services and that By Lawyers may charge the payment card for those services and for any additional amounts arising including any taxes, recovery costs and late fees, as applicable. All fees will be billed to the payment card provided during the purchase process. To provide a different payment card or if there is a change in the existing payment card status, please update the payment card information on the By Lawyers websites, by going to 'My Account'.
PRICES
Prices of subscriptions are subject to change. By Lawyers reserves the right to change prices at any time and does not provide price protection or refunds in the event of a price drop or promotional offering. All prices are quoted in Australian dollars.
GOODS AND SERVICES TAX (‘GST’)
All subscriptions to By Lawyers Services are subject to GST.
BILLING DATE
For monthly subscriptions By Lawyers debits payments in advance on a monthly basis to the subscriber's credit card. The monthly billing date is set when a subscriber makes their first payment on the By Lawyers website. Subsequent payments will be processed on the same date each month thereafter.
For annual subscriptions By Lawyers debits payments in advance annually. Subscribers receive an email reminder when the annual subscription payment is due to be deducted from their credit card.
PAYMENT METHODS
Payments are by payment card only. By Lawyers accepts:
TERMS OF SERVICE
The Terms of Service are subject to change without notice. The current version is published here.