Australian Testamentary Trusts

This clause cancels or revokes any previous Will or Codicils which you may have made. Have questions?

This clause outlines the various Segments of your Will to help make your Will simple to navigate and understand. Have questions?

This clause names your spouse and names your children. This clause also sets a Controlling Age which is a sensible precaution preventing a beneficiary from taking complete personal control of their inheritance until they reach the age you have nominated. Children under the Controlling Age still have access to funds for important things like education, housing, medical treatment and general well-being expenses, but won’t be able to use large amounts of their inheritance on immature purchases. This clause also includes a general statement authorising persons appointed to any roles under your Will (e.g. Executors, trustees etc.) to act jointly or, if only one survives, to act alone.

This clause nominates your first and second choice executors. It is important to note that you should review and update your Will if any of your named Executors pass away or become unavailable for other reasons. Will Wizard provides three years free changes to assist with this. Due to the long-term asset protection and tax minimisation opportunities that our sophisticated Wills can provide beneficiaries, this clause also includes a sensible recommendation to your executors and primary beneficiaries to consult with a professional financial adviser, accountant and/or experienced estate planning lawyer in respect of any dealings with your estate assets. Our online form allows you to provide details of your current advisors or to simply include a general recommendation to seek professional advice. To allow each beneficiary full, free and flexible control over their inheritance, this clause also states that each primary beneficiary is the trustee (or ‘controller’) of their respective share of your estate. Additionally, one the key safeguards that this Will provides is for your executors to take over as trustee if a primary beneficiary is a bankrupt, incapacitated, experiences a divorce, a relationship breakdown (or other third party threat), or has not reached your nominated Controlling Age. Have questions?

This clause outlines your executors’ first initial duties and priorities following your death, namely dealing with the initial testamentary expenses, creditors and death benefits, and refers your executors to the authorities and powers provided to them to ensure your estate is distributed as per your wishes in the most efficient way possible. Have questions?

This clause outlines to your Executors what are to be treated as testamentary expenses. Testamentary expenses are those expenses incurred in the management of the estate. Have questions?

This clause outlines the gifts of personal and household possessions or ‘Chattels’ that you wish to leave to specific people. The clause references any lists you have left with your Will portfolio or other ‘personal papers or files’. The list must be signed and dated by you. Relying on a list that is separate to your Will saves you from having to continually update your Will should you wish to add to or amend your list. All Will Wizard portfolios include a Family Heirlooms and Small Chattels Record to record your gifts of personal chattels. Have questions?

This clause states that the balance of your estate goes to your spouse or (de facto partner) as the primary beneficiary of a testamentary trust that your spouse controls. The ‘balance’ of your estate is your estate less any specific gifts of purely personal items as per the previous clause 'Personal & Household Possessions'. Inheriting via a testamentary trust can provide important asset protection and tax advantages to your spouse. All Will Wizard testamentary trusts are optional (a beneficiary can choose to use a trust or not), individual (each beneficiary gets their own trust) and discretionary (each beneficiary has complete control over their own trust). Have questions?

This clause stipulates that if your spouse (or de facto partner) dies before you or within 30 days of your death, the clauses following this clause apply. Have questions?

This clause is optional, and if you do choose to nominate a guardian, only becomes relevant if you and your spouse both died leaving children under 18 years of age. The purpose of the clause is to nominate the people you would prefer to be appointed as guardian of your children. While this nomination via your Will is non-binding, it is sensible for a Will Owner who has young children to make it clear via their Will who their guardian preferences are. This clause also directs your executors to ensure that your children’s lifestyle is maintained, and provides wide powers to your executors to allow funds to be made available for education, development and advancement to a standard applicable at the date of your death. The appointment of a guardian is subject to Court approval and there is always the possibility that a Court may exercise its overriding discretion to appoint or remove a guardian other than your nominated guardian. Your children may wish to reside with someone other than your nominated guardian. In these circumstances the Court as always would take your children’s best interests into account in deciding the issue. The guardian must ensure that the child is appropriately housed, clothed, cared for and educated, and must make important ‘life decisions’ for the benefit of the child. Have questions?

This clause lists the people and/or organisations (if any) you have nominated to be recipient of small financial gifts. Gifts are limited to $15,000 AUD. These small financial gifts will be made on the death of the last of you and your spouse. Have questions?

This clause divides the remaining balance of your estate between your surviving children, with each surviving child able to receive their inheritance in a separate testamentary trust they control. If you have nominated for your children to inherit equally then this distribution is subject to the Benefit Adjustment provision in Segment 2 that aims to protect inheritance equality. The terms applying to any 'beneficiary controlled testamentary trusts' created by your Will are set out in Segment 3. The beneficiary controlled testamentary trusts are optional, meaning beneficiaries do not have to receive their inheritance via a testamentary trust, discretionary, meaning they have full control over their own trust, and individual, meaning that two or more children do not have to share control of a single testamentary trust, thereby reducing the potential for tension and conflict between them. Inheriting via a testamentary trust can provide long term asset protection and tax minimisation opportunities to beneficiaries. Have questions?

This clause states that, in the unlikely case of your children dying before you, leaving children of their own (i.e. your grandchildren), the share of any deceased child is to be divided equally between any children of your deceased child. As with your children, this distribution is based on providing grandchildren to benefit from the option to inherit via a separate testamentary trust that they control (once they have reached your nominated Controlling Age. Furthermore, and while highly unlikely, this clause states that the share of any deceased grandchild flows down to their children if any (i.e. your great grandchildren), thereby distributing your estate to direct descendants. Have questions?

As the name of this clause suggests, having a back-up plan for your estate is a safeguard that while unlikely to be needed, is important to include. It states what is to happen to your estate if none of the persons referred to in the preceding clauses live to inherit as a primary beneficiary of your Will. Without this provision there remains a small chance that your estate could end up in the hands of the State. Have questions?

This clause ensures that a beneficiary does not ‘miss out’ because they have not attained the Controlling Age by the time the trust ends. Have questions?

This optional clause expresses your non-binding wishes concerning organ donation. For information about The Australian Organ Donor Register, where you can record your legal decision to become an organ or tissue donor after death, go to: https://register.donatelife.gov.au/ Have questions?

This optional clause expresses your non-binding wishes regarding whether you are to be buried or cremated. Your executors make the final decision regarding your mortal remains. Have questions?