Legal Tip 359: Asking a Court to Prepare a Will Incorporating a Testamentary Trust for Disabled Test

In Re RD [2021] QSC 65 the mother of a disabled son asked the court to prepare a will for her son – who lacked testamentary capacity to prepare his own will. The proposal was for the son’s will to make direct gifts to the mother, father, and siblings of the son.

At these sorts of hearings where capacity is lacking a separate litigation guardian represents the person with the incapacity. The guardian proposed that instead of making 5 direct gifts the will be drafted so that 5 testamentary trusts are formed with each trust being given the same percentage gift as each of the persons would have received directly. Each trust would then be controlled by each of the proposed beneficiaries.

Unusually, the 5 beneficiaries opposed this idea wanting direct gifts instead. They seemed to be concerned about the costs of administration and the complexity. The guardian argued that the trusts would bring greater asset protection and tax advantages.

The court decided that it would have been unlikely the testator would have made such a convoluted will and a will incorporating direct gifts was more appropriate.

The estate was considerably large due to an insurance pay out when the testator was 5.



There are other cases where the courts have made orders for statutory wills incorporating testamentary discretionary trusts.