AUSTRALIAN LEGAL TEMPLATES
Will Incl Testamentary Trust
Will Including Testamentary Trust
A testamentary trust is a trust created by will and is usually a discretionary trust. The testator of a will creates a trust and directs the trustee to hold property in accordance with the terms of the trust for specified beneficiaries.
At some future time the trustee distributes the property to the beneficiaries of that trust. These trusts are often recommended by financial planners and accountants. They are very useful for parents of small children (minor beneficiaries).
Testamentary trusts tend to be driven more by the needs of the beneficiaries than by tax considerations. If a testamentary trust fails, the property will usually be held on resulting trusts for the testator’s residuary estate. A trust has two main advantages for a will maker and the nominated beneficiaries asset protection; and income splitting.
This Download Includes:
Will + Testamentary Trust (approx 8 pages)
Will Signing Instructions
Free Legal Drafting Booklet to help guide you through the process.
Will Signing Instructions
How to Sign your Will
- You must sign and date your Will in the presence of two witnesses at the same time. It is best that all three persons use the same pen as proof of the fact that they were together at the same time.
- Your witnesses should not be beneficiaries or potential beneficiaries under your Will. There is a presumption at law that a beneficiary who has also witnessed a Will may have used undue influence in order to obtain a gift in the Will. The law therefore invalidates gifts to beneficiaries who serve as witnesses. The same applies to spouses of beneficiaries.
- Subject to the above, your Will can be witnessed by anyone who is of sound mind and at least 18 years old.
- You should review your Will in the presence of your witnesses, then sign it on the last page and the foot of every page, using your normal signature. Take care not to miss any pages. Then write the date on your Will.
- Both witnesses must see you sign your Will. They also need to see each other sign as witnesses. This requires you and your witnesses to be present at the same time.
- Your witnesses should view every page so they can confirm, if asked, that there were no amendments when you signed your Will. They do not, however, need to read the Will or know what it says.
- After you have signed and dated your Will the first witness must then sign at the bottom of each page and at the end of the Will immediately below the attestation clause in the space provided. The second witness then follows this same procedure. The witnesses should include their full names, occupations and addresses so they can be located in the future if it becomes necessary for them to verify that you signed the Will. You should confirm that each witness has signed where required. Do this while they are all still in the same room. Finally, make sure all pages of your Will are stapled together.
Storing Your Will
Keep your Will in a safe place and tell your executors where you have put the original. You may also consider giving your executors a copy of the Will. There is no requirement to register your will or do anything else with it.
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