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Our Wills are comprehensive.
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Why do our Wills need to be comprehensive?
It is not possible to predict the future circumstances and tax status of your beneficiaries.
This is why our Wills include so many distribution options, trust options and the legal flexibility beneficiaries need to manage estate assets in whichever way best matches their future needs and tax status.
Executors need guidance to understand their priorities and options to help beneficiaries.
The role of the executor is difficult. This is why our Wills include an entire segment dedicated to assisting executors to understand their role, their priorities and the authority they need to distribute your estate.
We provide quality multi-generation testamentary trusts for all beneficiaries.
Our Wills include all of the legal provisions and trust terms to ensure your beneficiaries can benefit from the asset protection and tax advantages of testamentary trusts that best suit their life and your estate assets.
This Will is made by me, {Your full name} of {Your address}, {Your occupation}.
Segment 1: Distribution of My Estate​
1. Cancellation and Declaration​
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This clause cancels or revokes any previous Will or Codicils which you may have made.
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2. Segments
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This clause outlines the various Segments of your Will to help make the Will simple to navigate and understand.
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3. Expressions
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This clause names the primary beneficiaries of your Will.
This clause also sets a Controlling Age. This is a sensible precaution preventing a beneficiary from taking complete personal control of their inheritance until they reach the age you have nominated. Beneficiaries under your nominated Controlling Age still have access to funds for important things like education, housing, travel, medical treatment, and general well-being expenses, but will not be able to waste 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.
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4. Executors and Trustees
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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 die or become unavailable for other reasons.
Due to the long-term asset protection and tax minimisation opportunities that our Wills provide to beneficiaries, this clause also provides 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.
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 of the key safeguards that our Wills provide to help protect inheritances is for your executors (or their personal legal representative) to take over as trustee if a primary beneficiary is bankrupt, incapacitated, experiences a relationship breakdown or has not reached the Controlling Age.
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5. Initial Administration
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This clause deals with 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 help make sure your estate is distributed as per your wishes in the most time and tax-efficient way possible.
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6. Testamentary Expenses
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This clause instructs your executors on what is to be treated as a testamentary expense.
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7. Personal & Household Possessions
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This clause instructs your executor of your wishes for any gifts of personal and household possessions or ‘Chattels’ that you may 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 from your Will saves you from having to continually update your Will should you wish to add to or amend your list.
In every Will Wizard portfolio, customers are provided with a Family Heirlooms and Chattels Record for the purpose of recording your wishes for gifts of personal chattels.
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8. My Estate Distribution
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This clause explains who is to receive the balance of your estate as the primary beneficiary of a testamentary trust established by your Will.
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 provides important asset protection and tax advantages to beneficiaries.
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9. If My Spouse (or Partner) Does Not Survive Me (In Wills for couples only)
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This clause stipulates that if your spouse or partner dies before you or within 30 days of your death, the following clauses apply.
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10. Guardians (Optional clause only)
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This optional clause is only relevant if you and your spouse or partner 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 the authority 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.
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11. Financial Gifts (Optional clause only)
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This optional clause lists the people and/or organisations (if any) you have nominated to be a recipient of financial gifts.
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12. My Remaining Estate Balance
This clause divides the remaining balance of your estate between your nominated primary beneficiaries in either equal or unequal shares (depending on your preference), with each surviving beneficiary benefiting from the protections and tax minimisation opportunities of testamentary trusts.
Your estate distribution is subject to the Benefit Adjustment provision in Segment 2 that aims to protect your specific distribution wishes (i.e. equal or unequal shares).
The terms applying to any beneficiary controlled testamentary trusts established by your Will are set out in Segment 3.
13. Direct Descendants
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This clause states that in the unlikely case of any of your primary beneficiaries die before you, leaving children of their own, the share of any deceased primary beneficiary is to be divided equally between any children of your deceased primary beneficiary.
As with your primary beneficiaries, this distribution is based on providing direct descendants with the benefits and protections of testamentary trusts.
Furthermore, and while highly unlikely, this clause states that the share of any deceased child of a primary beneficiary flows down to their children if any, thereby distributing your estate to direct descendants only.
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14. Back-Up Estate Distribution Plan
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As the name of this clause suggests, having a back-up plan for your estate is a safeguard that is important to include but very unlikely to be needed.
It states what is to happen to your estate if none of the persons referred to in the preceding clauses lives to inherit as a primary beneficiary of your Will.
Without this provision, there remains a chance that your estate could end up in the hands of the government.
You are free to choose any persons and/or organisations/charities as your back-up estate distribution plan.
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15. Terms of Preservation Trust
This clause would only apply if one of your beneficiaries were under the controlling age at the date of your death.
This clause imposes positive obligations on your executors to make sure that beneficiaries under the controlling age are properly housed and maintained until they reach the controlling age set in your Will.
Your executors are obliged to review any underage beneficiary’s circumstances and needs at least every six months and to consider any recommendations made by their guardian.
This clause includes several issues on which a beneficiary must satisfy the executors before they can take control of their own testamentary trust.
The executors are required to comply with the prudent person rule set out in the Trustee Act in respect of the investment of funds for minor children.
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16. Considered Obligations (Optional clause only)
This optional clause names any persons that you are concerned may attempt to challenge your Will but that you believe have no right to be considered a beneficiary under your Will.
This clause also instructs your executor to do everything within their power to ensure that the cost of any challenge is borne by the contest and not your estate.
This clause does not in any way minimise the potential success of a legal challenge made by a financial dependant person with a legitimate claim to your estate, such as a dependant spouse or dependant child.
18. In Contemplation of Divorce (Optional clause only)
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This clause states that your Will is made in contemplation of your divorce to your spouse, and as such, the Will is not made void if the divorce does or does not take place.
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19. Earlier Vesting
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This clause ensures that a beneficiary does not ‘miss out’ because they have not attained the Controlling Age by the time the trust ends.
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20. My Organs (Optional clause only)
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This optional clause expresses your non-binding wishes concerning organ donation.
Under Australian law, your executors have the authority to make the final decision regarding your organs.
For information about The Australian Organ Donor Register, where you can record your binding decision to become an organ or tissue donor after death, visit https://register.donatelife.gov.au/
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21. My Mortal Remains (Optional clause only)
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This optional clause expresses your wishes regarding whether you are to be buried or cremated.
Under Australian law, your executors have the authority to make the final decision regarding your mortal remains, and would in the vast majority of cases follow any wishes expressed in your Will.
Segment 2: Executor Priorities, Instructions & Authorities.​
22. Executors’ Priorities
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Segment 2 of this Will is primarily concerned with assisting your executor with their role and responsibilities to ensure that, as far as possible:
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your primary beneficiaries receive their share of your estate; and
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your beneficiaries receive an inheritance in the most cost & tax-effective way; and
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your executors obtain appropriate taxation and financial advice.
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This clause summarises these priorities for your executor.
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23. Benefit Adjustments
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When you have two or more primary beneficiaries, this clause instructs your executors to protect your wishes for the division and distribution of your estate to your primary beneficiaries by considering common issues that may affect your estate distribution wishes (i.e. equal or unequal shares), including:
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Financial gifts made to primary beneficiaries during your lifetime, which you have recorded in writing (see your Beneficiary Loans Record in your Will Wizard portfolio);
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Amounts owed to you by any of the primary beneficiaries under a written loan agreement (see your Beneficiary Loans Record in your Will Wizard portfolio);
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Any financial obligation you may have at the date of your death as guarantor for any of the primary beneficiaries (see your Beneficiary Loans Record in your Will Wizard portfolio);
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Superannuation and pension death benefits paid to one of the children who is a dependant;
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Life insurance policy ownership: e.g. death benefits paid to a child nominated as a policy owner or beneficiary;
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Discretionary trust allocations (it may be appropriate to provide that the discretionary trust become a restricted, fixed, or discretionary trust for a beneficiary unlikely to have children);
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Personal chattels of significant monetary value (for example a valuable artwork or piece of jewellery) that you wish a specific child to inherit.
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24. Executors’ Discretion & Terms
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This clause provides specific authorities to your executors to alter the terms of a beneficiary controlled testamentary trust with the prior consent of the primary beneficiary.
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25. Express Options
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The type of trust that might best suit a primary beneficiary given their circumstances and given the various tax and other laws that may or may not impact their inheritance in the future is impossible to predict.
As such, this clause provides examples of different types of trust options possible, giving your executors the discretion to vary the terms of the trust so that each beneficiary can choose the type of trust that best suits their needs and circumstances.
Beneficiaries and executors should get professional advice before deciding on the type of trust that best suits their needs.
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Two of the options referenced are for the establishment of All Needs Protected Trust and Special Disability Trusts.
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26. Optional Use of Testamentary Trusts
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It is important that testamentary trusts are optional, as there can be adverse tax consequences should a beneficiary choose to reside overseas.
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This clause provides your executors, with the consent of the relevant primary beneficiary, the authority to bypass or avoid a beneficiary controlled testamentary trust.
Instead, your executors are given the power, subject to the primary beneficiary’s consent, to distribute an inheritance direct to a beneficiary.
Your executors, again subject to the consent of the primary beneficiary, also have the power to distribute to another trust.
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27. Control of My Non-Fixed Trusts (if any)
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This clause provides your executors with the authority to assume control of any non-fixed trusts (i.e. discretionary family trusts) or the shares in non-fixed trusts you may have at your death and instructs your executors to then pass effective control to your primary beneficiaries.
As per our Guide For Will Owners, if you currently utilise non-fixed trusts during your lifetime, it is important to review the trust deed to make sure your executor is able to assume control following your death.
Reviewing your trust deed can wait until after you have signed your Will.
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28. Control of Self-Managed Superannuation (if any)
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This clause provides your executors with the authority to assume control as trustee of any shares in a company acting as trustee for any self-managed super funds you have at your death and instructs your executors to do everything possible to ensure that the terms of any valid binding death benefit nominations you have made are complied with.
As per our Guide For Will Owners, if you have a SMSF, it is important to review the SMSF deed to make sure your executor is able to assume control following your death.
Reviewing your deed can wait until after you have signed your Will.
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29. Superannuation
This clause provides for all or part of any superannuation death benefits received by the estate to be held or distributed on terms that satisfy the requirements for tax exemption.
The terms of any superannuation death benefits distribution or testamentary trust may be set out in the Will, or a trust can be established after death into which the death benefits can be directly paid.
This clause provides your executors with the option of placing all or part of any death benefits paid to the estate in a special superannuation death benefits testamentary trust. Again, as with beneficiary controlled testamentary trusts, unwanted superannuation death benefit trusts can be avoided.
To preserve the income tax exemption, beneficiaries of a superannuation death benefits testamentary trust are usually confined to tax dependents for death benefit purposes. A superannuation death benefits testamentary trust is essentially an alternative to the beneficiaries of the trust receiving a pension from the superannuation fund.
A pension from a superannuation fund is also taxed at concessional rates in the hands of the beneficiaries under 18. However, it does mean that capital is converted into income and your executors do not have day to day control of the money and cannot access the capital without bringing the pension arrangements to an end.
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Along with non-binding recommendations in our Wills, the Guide For Executors and the Guide For Beneficiaries strongly encourages executors and beneficiaries to seek professional advice before deciding on the most tax-effective way to deal with super death benefits paid to the estate.
Segment 3: Testamentary Trust Terms & Administration
30. Beneficiary Controlled Testamentary Trusts – Declaration of Terms
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This clause alone occupies between 8 - 10 pages of your Will, setting out the terms that administer each testamentary trust established by the Will.
The terms are similar to a discretionary trust established by Deed but include important differences. Among other things, the terms define:
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The class of beneficiaries;
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Distributions of net income, capital, and other benefits to beneficiaries;
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The power to trustee appointments;
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The sharing of control if two or more beneficiaries take control of the trust after the primary beneficiary dies;
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The circumstances where your executors assume control in the event of the primary beneficiary become bankrupt or otherwise under a legal disability; and
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The eventual winding-up of the trust.
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The terms provide your beneficiaries with freedom and flexibility to manage their inheritance in whichever way best their future suits their needs, personal circumstances and tax status.
31. Right of Residence
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The ‘Right of Residence’ clause spells out the terms and conditions regarding the Will owner’s direction to the executors to allow a primary beneficiary to have an enforceable personal right to reside in any inherited real estate or immovable property.
This is designed to help mitigate potential land tax issues being levied on an inherited property that a primary beneficiary may choose to reside in.
32. General Powers of My Executors and Trustees
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This clause provides executors and trustees with very flexible administrative powers to ensure your testamentary intentions are met.
The purpose of this clause is to ensure that your beneficiaries are provided with as much flexibility as possible to manage their inheritance for their own benefit given their particular needs and tax status.
33. Prospective Beneficiary
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This clause outlines the specific powers executors have regarding a prospective beneficiary.
A prospective beneficiary is one who has not yet attained the relevant Controlling Age.
Your executors have the power to apply money for the maintenance and support of the beneficiary and to distribute income and benefits to any dependants of the prospective beneficiary. Alternatively, your executors can also choose to make the prospective beneficiary the sole income beneficiary.
34. Specific Powers of Executors and Trustees
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This clause sets out a vast range of administrative powers for your executors and trustees. These powers provide your beneficiaries with almost unrestricted power to deal with their inheritance.
Revenue authorities, beneficiaries, lenders, and other people dealing with the trust often want to see the specific authorisation of aspects of estate or trust administration.
Authority is provided to your executors or trustees to add to these specific powers.
35. Provision of Advice
This clause provides a further recommendation for your executors and beneficiaries to seek professional financial advice before any important investment decisions are made.
Segment 4: Definitions, Interpretation & Execution
36. Definitions
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This clause occupies approximately 3 - 5 pages of your Will and defines specific terms that carry significant and specific meaning in your Will. This clause is crucial to making sure your Will is simple to navigate and understand.
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37. Interpretation
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This clause provides a clear explanation of how the wording, provisions and clauses in your Will are structured, and how they are to be interpreted.
Again, this clause is crucial in helping readers understand your Will.
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38. Execution
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This clause ensures the validity of your Will.
For a Will to be valid each page must be signed by you in the presence of two or more witnesses, present at the same time, who also sign each page of the Will in your presence.
Our Guide for Will Owners provided in every Will Wizard portfolio provides easy to follow step-by-step signing instructions.
Please note: These notes are intended as an example summary of the provisions common to may Wills we provide our customers. These notes are to assist you in understanding how comprehensive our Wills are, and should not be used as a substitute for comprehensive legal advice.
At Will Wizard, we rely on CCH Pinpoint® for our specialist legal information and on our specialist consultant estate planning solicitors who review the legal precedents & templates that our Wills rely on.
Our consultant solicitors have over 30 years of experience in drafting comprehensive Wills for their clients that aim to minimise risk and maximise the benefit for beneficiaries while giving executors clear directions and authorities to carry out their duties.
There are many great reasons why our Wills have so many pages and standard Wills do not.
We believe your loved ones deserve the options, guidance and protections of comprehensive Wills that establish testamentary trusts.
Timothy Purcell
Co-Founder
