What Are Testamentary Trusts and Why Do They Matter?

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Estate planning is critical to ensuring your assets are distributed according to your wishes after your demise.

One such instrument frequently employed is a testamentary trust.

Unlike living trusts that take effect during a person’s lifetime, testamentary trusts are created upon death through provisions in a will.

These trusts serve distinct purposes, from providing tailored financial provisions for beneficiaries to offering protection against potential creditors or legal claims.

What Are Testamentary Trusts?

Testamentary trusts are legal mechanisms established upon the death of an individual via their will.

These trusts exist only after the will-maker, the testator, passes away and the conditions set in their will are met.

How Is a Testamentary Trust Different from a Living Trust?

The primary difference between a testamentary and a living trust is the time of their creation. As the name suggests, a living trust is established while the person is alive, allowing them immediate control and benefit.

On the other hand, a testamentary trust is activated posthumously only once the testator’s will has been validated.

Also read: How to Make an Advance Health Directive in QLD

How Is a Testamentary Trust Established?

A Testamentary Trust in Australia is established through a person’s will. It comes into effect after the will-maker’s death.

The trust specifics, including beneficiaries and the appointed trustee, are outlined in the will. The primary purpose is to protect assets and provide tax advantages.

Once the will is executed and assets are transferred to the trust, it commences operation.

Legal and financial advice is recommended when considering a Testamentary Trust.

What Provisions Should Be Considered When Drafting a Testamentary Trust in a Will?

When drafting a Testamentary Trust in a will in Australia, various provisions should be considered to ensure the trust meets the intended objectives and legal requirements.

Here are some key provisions to consider:

  1. Trustee Appointment: Decide who will act as the trustee(s). This individual or entity will manage the trust’s assets on behalf of the beneficiaries.
  2. Trust Duration: Specify the trust’s duration, understanding that some trusts may continue for multiple generations.
  3. Beneficiaries: Clearly define who the beneficiaries are. This can include immediate family, future generations, or specific named individuals.
  4. Distribution Instructions: Detail how and when assets will be distributed to beneficiaries. This can be at specific ages, milestones, or events.
  5. Assets and Capital: Define which assets will be included in the trust. This can include property, cash, shares, and other investments.
  6. Powers of the Trustee: Clearly state the powers, responsibilities, and limitations of the trustee, such as the power to invest, distribute assets, or make decisions regarding the trust’s operation.
  7. Tax Considerations: Consider the potential tax implications, especially concerning capital gains tax and income distribution to beneficiaries.
  8. Protection from Creditors: Testamentary Trusts can offer protection from creditors for beneficiaries, but it’s essential to draft the provisions carefully.
  9. Vesting Date: This is the date on which the trust will end, and the assets will be distributed to the beneficiaries.
  10. Maintenance for Minors: If there are minor beneficiaries, provisions regarding their maintenance, education, and general well-being should be incorporated.
  11. Review and Update: Circumstances and laws change. Reviewing and updating the trust provisions periodically ensures they remain valid and relevant.
  12. Dispute Resolution: It’s wise to include provisions regarding how disputes related to the trust will be resolved, potentially using mediation or arbitration.
  13. Guardianship: A guardian’s appointment may be necessary if the trust is for minors’ benefit.

Can a Testamentary Trust Be Modified or Revoked after the Testator’s Death?

In Australia, once a testamentary trust has been established upon the testator’s death, its terms are generally fixed based on the wishes expressed in the deceased’s will.

However, certain circumstances and mechanisms may allow for modifications:

  • Variation by Agreement: If the trust deed or will allows for variations and all beneficiaries agree (and are legally capable of giving consent), then changes might be possible. However, the changes typically need to benefit all those beneficiaries.
  • Court Intervention: In some circumstances, Australian courts can vary or revoke the terms of a testamentary trust. This usually occurs if the trust becomes impractical or if varying the trust would benefit minor or incapacitated beneficiaries. It’s crucial to demonstrate that the proposed changes are in the best interests of all beneficiaries.
  • Trust Deed Provisions: Some testamentary trusts might be drafted with specific provisions that allow trustees to make certain changes, especially to address changes in tax laws or other unforeseen circumstances.
  • Statutory Variation: Some states in Australia have legislation allowing for the amendment of trusts in specific scenarios, like when unforeseen circumstances render the trust’s original objectives impracticable.

The ‘Rule in Saunders v Vautier’

The ‘Rule in Saunders v Vautier’ is a fundamental principle in trust law. It originates from an English case decided in 1841, namely “Saunders v Vautier”. The rule can be summarized as follows:

Suppose all trust beneficiaries are legal adults (sui juris) and are not under any legal incapacity, and they unanimously agree. In that case, they can demand the early termination of the trust or a variation of its terms, even if the trust deed explicitly wishes otherwise. This is because, in essence, the trust is for the beneficiaries’ benefit, so if they all agree, they can dictate the terms or end the trust.

Benefits of a Testamentary Trust

A testamentary trust is a trust created within a will, and it only comes into effect upon the death of the person who made the will.

It offers several benefits, which can provide both financial and non-financial advantages to the beneficiaries. Here are some of the primary benefits:

Asset Protection

  • Protection from Creditors: If a beneficiary is in debt or faces bankruptcy, assets held within the trust are generally protected from being claimed by creditors.
  • Protection in Divorce: Assets within the trust can be protected from family law property settlements if a beneficiary undergoes a marital or relationship breakdown.

Tax Benefits:

  • Income Splitting: The trustee can distribute the income earned by the trust among various beneficiaries, potentially leading to tax savings by taking advantage of lower tax brackets.
  • Tax Advantages for Minors: Unlike other trust structures, minors receiving distributions from a testamentary trust are taxed at adult rates rather than the higher penalty rates usually applied to minors.


  • Distribution Control: The trustee has discretion over the distribution of assets, which can be advantageous in situations with beneficiaries who might not be financially responsible.
  • Varying Benefits: The trust can cater to the different needs of beneficiaries. For example, some might receive income distributions, while others might benefit from the capital later.
  • Protection for Vulnerable Beneficiaries:
    • A testamentary trust can be established to provide for beneficiaries with disabilities, ensuring they’re cared for after the testator’s death.
    • It can also safeguard assets for young beneficiaries until they reach a suitable age or maturity to handle their inheritance.
  • Estate Planning:
    • Bypassing Probate: As the assets are held in trust, they can bypass the probate process, leading to quicker and potentially less costly distribution.
    • Clarity and Structure: A well-drafted testamentary trust can provide clear directions on the testator’s wishes, reducing potential disputes among beneficiaries.

What Happens If a Testamentary Trust Is Not Set Up Correctly?

An improperly set up testamentary trust can result in legal disputes, unintended tax consequences, or beneficiaries not receiving assets as intended. Seeking expertise from estate planning lawyers is crucial.

Embarking on the Next Chapter

While testamentary trusts’ complexities seem daunting, their potential benefits are manifold. From offering tax advantages to protecting assets, they are essential tools in estate planning.

Remember, a well-drafted testamentary trust can be the best step to stop someone from contesting a will. For more estate planning considerations, consult this guide.

Considering the Benefits of a Testamentary Trust for Your Estate Planning?

Ensure your assets are managed with precision and expertise.

Trust the seasoned lawyers at Walker Pender to provide clarity and tailored solutions for your unique needs.

Secure your legacy and provide peace of mind for your loved ones. Contact Walker Pender today.

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