Legal Tip 102: One or multiple Testamentary Trusts in a will?

Discussion in 'Legal Issues' started by Terry_w, 14th Nov, 2015.

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  1. Terry_w

    Terry_w Structuring Lawyer and Finance Broker - all states Business Member

    18th Jun, 2015
    One or multiple Testamentary Trusts in a will?

    When setting up a testamentary trust consider the long term effects on the beneficiaries of the trust.

    Where there are 2 or more children (or other beneficiaries) and assets are left to one trust which both children control and/or are beneficiaries of then consider what will happen if:
    • One child wants to mortgage a trust property and the other doesn't;
    • One child wants to cause a trust property to be sold and the other doesn't;
    • One wants to cause the trust to invest aggressively and the other is more risk adverse.

    For these and other reasons it may be worth considering setting multiple discretionary trusts in the will with each trust being controlled by each child or main beneficiary. This way they can still benefit but go their separate ways.

    One drawback of this separate trust approach is that asset protection on the divorce or separation of the main beneficiary that controls the trust will not be as great as the control of the trust will basically rest with one person. With a discretionary trust controlled by say 3 siblings then this will provide greater asset protection as it is more likely to be treated as a ‘financial resource’ of a party to the marriage/de facto where the trust is controlled by one person and that person later goes through a separation.