Wong on Wills & Probate

Select topics on Wills and Testamentary Trusts in Australia, specifically Queensland

Work-in-progress, 28 June 2025 (last updated)

[A] Testamentary Discretionary Trusts

• Family Provision; deceased estate; Trustee / Executor acting for own their reasons rather than in accordance with the testator's testamentary wishes for the operation of the testamentary discretionary trust: William Bkassini v Sonya Sarkis [2017] NSWSC 1487, [312], [376], [393] (Robb J in Eq): "[284] ... William receive the benefits expressed in her memorandum of wishes, and that the reason why she created the testamentary discretionary trust was that she wanted to preserve the capital of her estate for her children and grandchildren, and in particular wanted to avoid placing the capital at risk by giving it to William in circumstances where it could be dissipated by reason of William’s gambling practices.  [285]  The deceased’s wishes have been thwarted by the decision of Sonya to exercise her discretionary power as trustee to cut off William entirely from the receipt of any benefits from the trust, and furthermore to exercise her statutory right to obtain orders for the sale of both properties. ... [312]  Of course, the present is not a case where the testator has judged that the provision to be made for a beneficiary should be reduced by reason of that beneficiary’s conduct. It is a case where a testamentary provision has been chosen by the deceased notwithstanding any shortcomings in the beneficiary’s conduct and the intent of that provision has failed, and where the question arises in the context of the deceased’s executor and trustee trying to deny any provision to the beneficiary for her own reasons, rather than in upholding the testamentary wishes of the deceased. … [376]  I concluded earlier that the deceased did want William to enjoy the benefit of her estate during his life but wanted to ensure that he did so in a manner that preserved her capital for the benefit of her children. I have not accepted Sonya’s argument that the essence of the deceased’s testamentary intention was that William should only enjoy such benefits from her estate as Sonya for her own reasons determined from time to time were suitable. … [393]  The deceased’s wishes should be given paramount effect in preference to the wishes of Sonya who, I am satisfied, has exercised her trustee’s discretion for her own reasons after many years of compliance with the wishes expressed by the deceased".

> "William Bkassini v Sonya Sarkis 1/11/17 – Value of Estate/ Notional Estate – $880,000 Plaintiff, the widow of the deceased, made a claim after almost whole estate was left to one of 3 children on testamentary trust intended to benefit the Plaintiff. Trustee used discretion to cut Plaintiff off from any benefits after he took up with another woman. Plaintiff owned 2 properties with deceased and lived in one. Plaintiff awarded a “portable” life interest in deceased’s half share in one property and costs.": 'Summary of 2017 Family Provision Cases' (AS Laumberg, 2018) <https://aslaumberg.com.au/summary-of-2017-family-provision-cases/>, archived at <https://archive.is/YDBIi>.  

• Craig Birtles, 'Will Drafting from a Litigator's Perspective' (Paper, 2023) <https://twowentworth.com.au/wp-content/uploads/2024/05/C-Birtles-BMLS-paper-Will-drafting-8.9.23.pdf>, archived at <https://perma.cc/V5Z5-T49F>.  

> Family provision :"... “Provision for eligible persons may be inadequate or improper in form as well as, or as distinct from, in quantum. Thus, provision which is dependent upon the exercise of a discretion by the trustee of a discretionary trust will often, though not invariably, be inadequate or improper: Re WTN (NSWSC Unreported, 3/7/59, McLelland CJ in Eq); referred to in [1959] 33 ALJ 240 Gregory v Hudson (No 2) (New South Wales Supreme Court, Young J, 18 September 1997, unreported).” The above passages do that mean that all testamentary trust structures will be found to not provide adequate and proper provision for an eligible person. The answer to that question depends on the terms of the trust, the financial circumstances of the eligible person, and the other relevant s 60(2) Succession Act 2006 (NSW) factors.". 

• Craig Birtles, 'War on Trusts' (Paper, Two Wentworth Succession Conference, March 2024) <http://twowentworth.com.au/wp-content/uploads/2024/05/C-Birtles-Paper-War-on-Trusts-23.3.24.pdf>, archived at <https://perma.cc/ZZY9-28D3>.  

[A.A] Testamentary Superannuation Proceeds Trust

• Distinct from TT in its eligible beneficiaries (ie,  super legislation on eligible super beneficiaries), and who can benefit from super, either tax-free or taxed. 

> "368. Clause 10(o) of the 2016 Will provided that: 10.   My trustees may at their discretion: … (o) Hold all or any part of any superannuation death benefits paid to my estate in a separate superannuation proceeds trust upon and subject to the rights and powers herein created for any of the beneficiaries under this my will who qualify as death benefit dependants pursuant to the Income Tax Assessment Act 1997 in such proportions as my executors may determine provided that my estate is divided between all the beneficiriaries of my estate in the proportions that accord with my wishes expressed herein.": Cong v Shen (No 3) [2021] NSWSC 947. 

> "6 Power of my executors in relation to superannuation lump sum death benefit (a) The following provisions apply if My Estate receives a benefit that was a superannuation lump sum death benefit within the meaning of the Income Tax Assessment Act 1997 (Cth) (Act) section 307–5 (or a provision of similar import). (b) If a primary beneficiary of my will is a death benefits dependent within the meaning of the section 302–195 (or a provision of similar import) of the Act, my executors may in their discretion hold all or part of that primary beneficiary’s share of that lump sum death benefit in a separate superannuation proceeds trust for that primary beneficiary, and in that case: (i) the primary beneficiary is the exclusive beneficiary of the trust but may not be appointed as trustee, and the primary beneficiary will acquire the capital of the trust otherwise than as a trustee when the trust ends; and (ii) subject to subclause 6(b)(i), the rules of the trust are identical to those set out in schedule 3 of this will. (c) If more than 1 superannuation proceeds trust is created, subclauses 6(b)(i) and 6(b)(ii) apply to each of those trusts.": '510.535 Testamentary discretionary family trust — will' in Australian Encyclopaedia of Forms & Precedent (LexisNexis). 

What is

• ** 'What is a superannuation proceeds trust?' (Curae Law, 6 August 2024) <https://curaelaw.com.au/blog/superannuation/what-is-a-superannuation-proceeds-trust/>, archived at <https://archive.is/a5ezm>. 

• 'How superannuation testamentary trusts help save tax' (KMT Partners, Webpage) <https://kmtpartners.com.au/blog/how-superannuation-testamentary-trusts-help-save-tax/>, archived at <https://archive.md/D5J8X>. 

• Superannuation Proceeds Trust v Superannuation Testamentary Trust: 'Superannuation Death Tax – 17% or 32% tax for adult children when parents die' (Legal Consolidated, Webpage) <https://legalconsolidated.com.au/super-death-tax/>, archived at <https://archive.is/7ySvM>. 

• Query, whether will has a clause for testamentary trustees to make payments into existing related trusts (and whether that power exists for super proceeds trust). 

Separate Fund from TT

• "A Testamentary Trust is similar to a SPT as it also involves the distribution of assets to beneficiaries, but is set up within a Will. From a tax perspective, it is important to separate a Superannuation Proceeds Trust and Testamentary Trust (TT) established under a Will. The main reason for this is that death benefit dependants are taxed at the adult marginal rate and may fall under the tax-free threshold. On the other hand, the TT should list all other beneficiaries who do not fall under the death benefit dependant category. ...": 'Should I consider setting up a Superannuation Proceeds Trust?' (JB Solicitors, 7 December 2017) <https://jbsolicitors.com.au/consider-superannuation-proceeds-trust/>. 

Purpose

• Use of trust to direct super into the estate to pay debts; or to potentially segregate or quarantine from estate debts (cf all going into same TT)?: 

> Ian Raspin and Lyn Freshwater, 'Superannuation Death Benefits: Some Discrete Issues' (2022) 56(8) Taxation in Australia 479, 482 <http://bnrpartners.com.au/wp-content/uploads/2022/03/Raspin-and-Freshwater-article.pdf>, archived at <https://web.archive.org/web/20250411094441/https://bnrpartners.com.au/wp-content/uploads/2022/03/Raspin-and-Freshwater-article.pdf>: "What if death benefit is used to meet expenses? In some cases, a death benefit is used to meet estate expenses. To the extent that an amount is paid to a creditor, is the death benefit regarded as benefitting a non-dependant? Example Poppy was killed in a workplace accident. She was 45 years old. Poppy left a will appointing her parents as her executors and her son Pablo as her sole beneficiary. Poppy had substantial debts when she died. However, the trustee of her superannuation fund paid a death benefit of $400,000 to Poppy’s executors. Some of this was used to pay Poppy’s funeral and testamentary expenses and some was used to pay her debts. The balance ($200,000) was paid to Pablo. The executors obtained a ruling from the ATO that Pablo is a death benefit dependant of Poppy. It was clear that the entire death benefit was never going to benefit Pablo. Does this mean that only part (50%) of it is tax-free on the basis that it is expected to benefit Pablo? And that the part (50%) that is used to pay creditors is to benefit a non-dependant? .When working out the tax payable by the trustee of deceased estate, s 302-10 draws a dichotomy between amounts that are expected to benefit “beneficiaries of the estate” who are dependants and those beneficiaries who are not. For succession and, presumably, s 302-10 purposes, a creditor is not regarded as a beneficiary of an estate. This means in effect that s 302-10 can only ever apply by reference to the death benefit (net of expenses) that can benefit a beneficiary. It seems that the ATO agrees with this approach. In a private ruling,14 the ATO indicated: “The fact that part of a superannuation death benefit may have been applied to pay outstanding liabilities of the deceased estate should not change the application of subsection 302-10(2) of the ITAA 1997.” This does not mean that, where a death benefit is expected to benefit a non-dependant, no tax is payable in respect of an amount used to pay creditors. Indeed, the ATO has taken the view in a private ruling that, even in an insolvent estate, tax is payable if the beneficiary who would have benefitted is a non-dependant.15"

-> referring to ATO Private Ruling PBR 88506 and PBR 1011681715552. 

van Camp v Bellahealth [2024]

> "35. In cross-examination, Ms Benge gave evidence that they discussed the potential tax implications in relation to superannuation and Dr Nespolon liked the idea of Ms van Camp receiving the money tax-free and then using it to pay estate debts (T122.1–17), that she did not provide information to Dr Nespolon about the potential quantum of the tax that might be incurred on his superannuation moneys as she did not have the information (T124.30–125.34); and that they discussed another option of providing tax free benefits, which was “if the executors did not exercise the option to pay the debt or the debts, then they could have paid the superannuation via the testamentary trust and use the powers to create the superannuation proceeds trust”, which would empower the executors to segregate superannuation for death benefits beneficiaries at the time, being Ms van Camp and their daughters (T139.10–22). ... The Will records that it had been made to complement the plan and structure of Dr Nespolon’s estate and financial affairs (cl 3) and contains an acknowledgement that it was a complex document (cl 4). Under the Will, Dr Nespolon: ... 9. gives the executors the power to hold all or part of a primary beneficiary’s share of a superannuation lump sum death benefit in a separate superannuation proceeds trust: cl 41. ... 129. At 12.30pm Sydney time (12.00pm Adelaide time), Ms Benge sent an email to Dr Nespolon’s email address that attached the form of BDBN to be completed (identified as Attachment “Death benefits notice.pdf”) and provided advice to Dr Nespolon about the BDBN and its interaction with Dr Nespolon’s Will in following terms: “Dear Harry As requested, please find attached the binding death benefit nomination in favour of Lindy with respect to the payment of your superannuation benefits. The nomination must be signed in the presence of two independent witnesses as you will note on the document. Prior to your execution of your nomination, I thought prudent to point out that: (1) Payment of your death benefit directly to Lindy will not be caught by the trusts created in your Will and Lindy can spend those funds at her own discretion; (2) The trustee of the fund can only make a maximum of two payments from the fund prior to its wind up therefore the trustee cannot make hasty payments. Consequently, it is unlikely that the trustee will be in a position to make a payment immediately and due to the limit of the times they can make payment, often. If the intention is to provide funds to Lindy quickly then this is unlikely to achieve that outcome and I would recommend that cash is retained in a bank account that Lindy can access – either in her sole name or an account in joint names; (3) You Will anticipates: (a) That if your executors need to use the funds towards payment of any debts, they can (clause 17.1). The payment directly to Lindy means that those funds won’t be available to your executors for that purpose; (b) The tax treatment of superannuation is determined by the ultimate beneficiary of the benefit. Clause 41 of your will provides your executors with the ability to create a superannuation proceeds trust for tax dependent beneficiaries of which they are the trustee. This means that in the event superannuation is paid to your estate, if those proceeds are accounted for separately to your other estate assets and Lindy and the children are the beneficiaries of those funds, then the payment will be tax free. Should you wish to discuss the nomination or any of the above then please let me know.” ... 253. I accept that Ms van Camp’s requests for information about income, superfund dividends and the Will, and the concerns she expressed to Dr Nespolon about her ability to pay expenses, was likely a factor that contributed to Dr Nespolon’s decision to instruct Ms Benge to prepare a BDBN in favour of Ms van Camp, which reflected a change in the position he had discussed with Ms Benge late in 2019. However, I do not consider the fact that on 23 July, Dr Nespolon made the Will, which gave power to the executors to apply superannuation and/or life insurance proceeds towards debt or apply to residue or to a superannuation proceeds trust (cll 17 and 41), to be necessarily indicative of a sudden change in position, in circumstances where the Will contemplated that Dr Nespolon had prepared a BDBN and expressly provided for the Trustees to check for one (cl 39), and where the Will was also drafted on the basis that his superannuation and/or the life insurance proceeds might be paid to the estate as a consequence of his death (c 17), given that the making of a BDBN was the way in which Dr Nespolon could control where his member benefits were to be paid.": van Camp v Bellahealth Pty Ltd [2024] NSWSC 7.

> "... Dr Nespolon had known he was dying and in late 2019, had sought to finalise his financial affairs. His instructions to his solicitor indicated that he had held concerns about Ms van Camp’s ability to save and about the assets being protected for the long-term benefit of their children, particularly if Ms van Camp re-partnered. The Will was prepared on the basis that Dr Nespolon would direct his superannuation benefits to his estate so that debts could be paid, and the remainder could be held in superannuation proceeds trust for Ms van Camp and his children. However, the BDBN was not prepared at that time because the solicitor needed a copy of the Fund’s trust deed which Dr Nespolon did not provide until shortly prior to his death. ...": Suzanne Mackenzie, 'Part II: Death bed decisions — relevant considerations in determining superannuation death benefit distributions' (2024) 35(3&4) Australian Superannuation Law Bulletin 48 (LexisNexis). 

Super and Life Insurance proceeds generally not part of estate assets for the payment of testamentary debts 

> "The Federal Court Decision in Stock (as Executor of the Will of Mandie, Deceased) v N.M. Superannuation Proprietary Limited FCA 612 confirms that: Your superannuation fund does not form part of your estate, and is therefore not subject to the terms of your Will; and If there is no binding death benefit nomination in place at the time of your death, the trustee of your fund has the discretion to decide who benefits from your super, provided their decision is ‘fair and reasonable’.": 'It’s official. Super isn’t part of your estate.' (ADLV Law, 19 October 2016) <https://adlvlaw.com.au/2016/10/19/superannuation-not-asset-of-estate/>. 

> ** 'Can you use Superannuation and Life Insurance to pay Estate Debts?' (Irdi Legal, 2017) <https://www.irdi.com.au/pdf/Article%20-%20Can%20you%20use%20Superannuation%20for%20Estate%20Debts.pdf>, archived at <https://web.archive.org/web/20230305172506/https://www.irdi.com.au/pdf/Article%20-%20Can%20you%20use%20Superannuation%20for%20Estate%20Debts.pdf>: " ... Generally speaking, Australian legislation will not allow superannuation or life insurance assets to be used to pay debts and liabilities of a deceased estate, even if the estate is insolvent (see section 116 of the Bankruptcy Act 1966 (Cth)). The reasons for this and some limited exceptions are outlined below ... Sections 204 and 205 of the Life Insurance Act 1995 (Cth) protect life policies from being applied or made available to pay the debts of a deceased estate. If it is the policy holder’s intention that their life insurance proceeds should be used to satisfy estate debts (other than funeral and testamentary expenses), they are required to either: 1 enter into an agreement with the life insurance provider that expressly provides for the proceeds to be applied to estate debts; 2 charge the money with the payment of the debt (in other words using the life insurance proceeds as collateral for the repayment of a debt); or 3 make an express direction in their Will that the proceeds are to be applied toward any outstanding debts of the estate.". 

> " ... Section 143 of the Superannuation Act 1922 (Cth) protects superannuation entitlements from being applied or made available for payment of estate debts. Notably, this protection cannot be removed like the life insurance policy. ... ": Sinead Butler, 'Paying Estate Debts: Hands-Off the Life Insurance Policy and Superannuation!' (Macrossan Amiet, 19 October 2015) <https://www.macamiet.com.au/paying-estate-debts-hands-off-the-life-insurance-policy-and-superannuation/>, archived at <https://archive.is/Vpcn0>. 

> Super Trustee and Wills -- would Super Proceeds Trust increase chances of Super Trustee paying the benefits on perusal of Will?: ---------- "The Tribunal next set out some passages which, the appellants asserted, bespoke legal error.  It said: “43.         In this regard, the Tribunal considered the following issues in its deliberations. 44.          First, superannuation is not an asset of the estate and a trustee is not bound to follow the directions of a will. Even if superannuation is specifically mentioned in a will, it does not make it an asset subject to the terms of the will. 45.          The subject matter of proceedings commenced by the Adult Sons against the executors of the Deceased Member’s estate under Part IV of the Administrative and Probate Act 1958 relates to inadequate provision for their proper maintenance out of the estate of the Deceased Member. The complaint to the Tribunal concerns the distribution of the death benefit, which is not part of the estate. 46.          Although the Trustee will look to a deceased member’s will and any other document which purports to identify the wishes of a deceased member to assist in determining the wishes of the member, the role of the Trustee in the distribution of a death benefit is not to resolve any perceived or real issues in a deceased member’s estate. 47.          Second, the Trustee must decide the distribution of a death benefit unless there is in force a binding death benefit nomination.  In this matter, the Deceased Member did not have a binding nomination of beneficiary for receipt of his superannuation although it was permitted under the Trust Deed. 48.          Third, in general a trustee does not pay to the LPR unless there are no dependants or if there were such a direction in a binding death benefit nomination.  The Trustee submitted that it follows this general procedure.  It stated that it is not the practice of the Trustee to pay the benefit to a deceased member’s LPR if the deceased member is survived by dependants. 49.          Finally, while the Deceased Member may have been of an age where he could have received the benefit directly, the benefit remained in the superannuation system at the time of his death and subject to a decision of the Trustee. 50.          The Tribunal concluded that, having identified dependants and with no binding nomination to pay to the LPR it was not unreasonable for the Trustee to follow its practice to pay to dependants.”: Stock (as Executor of the Will of Mandie, Deceased) v N.M. Superannuation Proprietary Limited [2015] FCA 612. 

Superannuation Proceeds Trust - Taxation - Excepted Income

• s 102AG(2)(c)(v), ITAA 1936 (Cth) <https://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/itaa1936240/s102ag.html>. 

• "SPTs have been gaining momentum in super planning as SPTs have distinct advantages over child death benefit pensions which are limited by the modified transfer balance cap and the pension vesting requirement at age 25, except for disability pensions. Most SPTs are structured as testamentary trusts under sub-section 102AG(2)(a)(i) of the ITAA 1936.  This type of SPT provides certainty of succession and proper documentation is essential to ensure super death benefits will be paid to the deceased member’s estate, with the dependants as the ultimate SPT beneficiaries. In addition, there are also SPTs formed after the death of the fund member by deed under subsection 102AG(2)(c)(v).  These benefits devolve outside the Will and are subject to certain restrictions.  The latter option is often used as a “catch-up” measure where on death of the member, no testamentary trust provision is in place and the beneficiaries of the benefits are minors. In both scenarios, the beneficiaries of the SPT will be Tax Act dependants (“TA dependants) of the deceased fund member.  Super death benefits distributed to the estate with TA dependants as beneficiaries are tax free. This preserves the tax-free status of the distributions as if they were made directly to TA dependants. In addition, SPT income distribution to minors, subject to applicable rules, will qualify as excepted income taxable at the adult’s marginal tax rates and not the penalty rates of children. ...": 'Superannuation proceeds trust: excepted income changes' (Townsend Business & Corporate Lawyers, Webpage) <https://www.townsendslaw.com.au/Superannuation-proceeds-trust-excepted-income-changes>. 

• 'Superannuation and testamentary trusts - private ruling' (Townsend Business & Corporate Lawyers, Webpage) <https://www.townsendslaw.com.au/superannuation-testamentary-trusts-private-ruling>. 

• 'An Adviser's Guide to Superannuation Proceeds Trusts' (View Legal, 24 September 2024) <https://ifpa.com.au/wp-content/uploads/2024/09/An-advisers-guide-to-superannuation-proceeds-trusts.pdf>, archived at <https://web.archive.org/web/20241026025502/https://ifpa.com.au/wp-content/uploads/2024/09/An-advisers-guide-to-superannuation-proceeds-trusts.pdf>. 

• ** Matthew Burgess and Patrick Ellwood, 'Superannuation Proceeds Trust: Tricks and Traps' (Paper, 2019) <https://matthewburgess.com.au/wp-content/uploads/2019/07/Superannuation_proceeds_trusts_-_Tricks_and_traps.pdf>, archived at <https://web.archive.org/web/20250321113310/https://matthewburgess.com.au/wp-content/uploads/2019/07/Superannuation_proceeds_trusts_-_Tricks_and_traps.pdf>. 

• ** Matthew Burgess, 'Testamentary Trusts Post-Death: Bespoke Planning Opportunities' (2015) 50(2) Taxation in Australia 72 <https://matthewburgess.com.au/wp-content/uploads/2019/07/Burgess_article.pdf>, archived at <https://web.archive.org/web/20250321113306/https://matthewburgess.com.au/wp-content/uploads/2019/07/Burgess_article.pdf>. 

• Colin Lewis, 'Super inheritance trust that minimises tax' (AFR, 17 October 2019) <https://www.afr.com/wealth/personal-finance/super-inheritance-trust-that-minimises-tax-20191016-p531al>, archived at <https://web.archive.org/web/20191017092710/https://www.afr.com/wealth/personal-finance/super-inheritance-trust-that-minimises-tax-20191016-p531al>. 

• Denis Barlin, 'Self Managed Superannuation Fund Tax Landscape' (13 Wenthworth, 30 March 2015, Paper) 29 <https://13wentworth.com.au/wp-content/uploads/2019/01/23-03-2015-Legalwise-SMSF-Tax-Landscape-March-2015.pdf>, archived at <https://web.archive.org/web/20240713045058/https://13wentworth.com.au/wp-content/uploads/2019/01/23-03-2015-Legalwise-SMSF-Tax-Landscape-March-2015.pdf>: "Division 6AA of the 1936 Act discourages ‘income splitting’ by means of diversion of income to children to take advantage of the tax-free threshold and progressive tax rates. Broadly speaking, the provisions apply a 45% tax rate on unearned income of minors. Such income includes certain distributions from trusts. 10.2 However, Division 6AA of the 1936 Act does not apply to certain ‘excepted trust income’. Such trust income includes that from a ‘superannuation proceeds trust’. That is, superannuation proceeds trusts may be established by the transfer of property from a superannuation fund, as a result of the death of a person, to a trustee of a trust which will hold the property for the benefit of a child. 10.3 Paragraph 102AG(2)(c)(v) of the 1936 Act provides that: ‘(2) Subject to this section, an amount included in the assessable income of a trust estate is excepted trust income in relation to a beneficiary of the trust estate to the extent to which the amount: … (c) is derived by the trustee of the trust estate from the investment of any property transferred to the trustee for the benefit of the beneficiary: ... (v) directly as the result of the death of a person and out of a provident, benefit, superannuation or retirement fund;’ 10.4 The terms of the trust must provide for the beneficial acquisition of trust property by the beneficiary upon the termination of the trust. 10.5 Although death benefits do not generally form part of an estate, generally speaking, superannuation proceeds trusts are established under the terms of a will. Such a transfer may be ensured via a binding death benefit nomination. 10.6 The Commissioner in ATO ID 2001/751 accepts even where a superannuation death benefit is paid to a trustee, apart from the estate (e.g. so as to satisfy the superannuation cashing rules, to an adult child of the deceased), in order to assess whether the superannuation death benefit tax concessions apply, one should look through the trust to the underlying beneficial ownership of the trust. 10.7 This would be the situation if the beneficiaries of such a trust were minor children of the deceased". 

• ATO Private Advice: 

>  1052342126330, 13 December 2024: "... Question 1   Will the income derived by the trustee of the minor's trust, from the investment of both the superannuation death benefit amount and the property from the deceased's estate that are transferred into the minor's trust, be excepted trust income under section 102AG of the Income Tax Assessment Act 1936 (ITAA 1936)?  Answer 1   Yes. Based on the information provided to the Commissioner the income derived by the trustee from the investment of the superannuation death benefit amount and the property received from the deceased's estate will be excepted trust income under subparagraphs 102AG(2)(c)(v) and 102AG(2)(d)(i) of the ITAA 1936, respectively."

> 1052227064977, 29 February 2024: "... The trust consists of property that was transferred to the trustee directly as the result of the death of a person and out of a superannuation fund. Consequently, it is a type of trust that qualifies for the discretion per paragraph 99A(2)(d) and subparagraph 102AG(2)(c)(v) of the ITAA 1936. ..."

> 1052180724238, 17 October 2023: "Will income derived from the investment of a superannuation death benefit that is paid to the minor's Trust, be considered excepted trust income for the purposes of section 102AG of the Income Tax Assessment Act 1936?   Answer    Yes. Income derived by the trustee from the investment of the superannuation death benefit is excepted trust income. ... Relevant facts and circumstances Individual A (you)is a minor and beneficiary of an estate proceeds trust (the Trust). Your parent passed away intestate. 'Letters of Administration' were granted to the deceased's parent (the Administrator). The Trust was established by Deed; the delay in setting up the Trust was mainly due to the Administrator's ill health. The Administrator has settled money from your parent's estate into the Trust. You will benefit from the income and capital of the Trust. Your parent also had a superannuation account and you were a beneficiary. The superannuation fund paid the superannuation death benefit to individual B as trustee for you. Individual B did not want to act as trustee in respect of the superannuation death benefit. The superannuation death benefit was paid into the solicitor's trust account. The Administrator wishes to transfer the superannuation death benefit to the Trust in order to reduce the compliance burden of managing different trusts. ...".

> 1052180744972, 2023. 

> 1051996092579, 2023. 

[B] Appointment of a Firm of Solicitors as Trustee and Executor

• Re Draper [2022] SASC 46 -- wording of appointment clause

• ASCR 2015, r 12.4: 

>  ** 'Solicitors as Executors - Questions and Answers' (NSW Law Society, Paper) <https://www.lawsociety.com.au/sites/default/files/2018-10/files.pdf>, archived at <https://perma.cc/T9LF-EZ67>. -- template letter.

> 'When commission is awarded to executor in a probate proceedings' in C Sparke, U Stanisich and I Kallweit, Wills Probate & Administration Vic (LexisNexis, 2019) [50,025]-[50,055] <https://perma.cc/CN86-337P>.  

> Carol McOmish, 'Solicitors’ and executors’ commission: dangers, pitfalls, recent developments, case law and practical issue affecting lawyers' (Svenson's List, Paper) <https://svensonbarristers.com.au/wp-content/uploads/2017/07/C_McOmish_Solicitor_Executors_Fees_Southern_Solicitors.pdf>, archived at <https://perma.cc/5Y77-Z7YA>.  

> 'Appointing a Solicitor as your Executor: Practical Considerations' (De Groot Lawyers, Webpage) <https://degroots.com.au/appointing-a-solicitor-as-your-executor-practical-considerations/>, archived at <https://archive.is/5M1vV>: "... It should be stressed that it is not unprofessional or unethical for a solicitor to accept an appointment as executor.  However, the Australian Solicitors Conduct Rules prescribe special requirements to be followed before the appointment is made.  A letter must be given to the will-maker addressing the costs and solicitor’s commission that might not be payable if family or friends are appointed.  This requirement will also apply where a codicil is made to the will or another will is proposed (where the solicitor’s appointment will continue). ..."

> Russell Cocks, 'Solicitor - Executor's Commission 1 - Horns of a dilemma' (ByLawyers, 1 January 2010) <https://obiter.bylawyers.com.au/solicitor-executors-commission-1/>, archived at <https://archive.is/cbtnI>. 

> Russell Cocks, 'Solicitor – Executor’s commission 2 – A fiduciary duty' (ByLawyers, 1 January 2010) <https://obiter.bylawyers.com.au/executors-commission-a-fiduciary-duty-2/>, archived at <https://archive.is/7He7N>. 

> Box et al, 'The Solicitor-Executor and Remuneration Clauses' (2002) 76(8) Law Institute Journal 77. 

[B-A] No appointment of a Limited Company as Executor

• "I merely state at the outset that upon the authorities and in view of lack of statutory powers or established practice this court should not, in my view, make a grant of probate to the company. As a matter of law the traditional objections to such a grant including the inability of a corporation aggregate to take the necessary oath apply in the Northern Territory today: see Halsbury (3rd ed) vol 16, pp 126–7, and William & Mortimer on Executors Administrators and Probate pp 5, 247 and 253. Whilst the situation has undergone changes in England by virtue of the Administration of Justice Act 1920, and the Administration of Estates Act 1925, the position since 1925 has been that where a corporation which is not a trust corporation, as defined in the English legislation (and is so incapable of taking a grant of probate) is appointed sole executor, a grant is made to its nominee. The authors (at p 247) cite this as one of the circumstances in which administration with the will annexed is granted. The Administration & Probate Ordinance makes no specific provision for the grant of letters of administration (with or without the will annexed) to a private limited company. My inquiries indicate this has not to date been the practice of this court and the only corporations to whom probate, or indeed letters of administration have been granted are those trustee companies incorporated in South Australia by Act of Parliament, which by virtue of s 7 of the Northern Territory Acceptance Act 1910–1952 and s 5 of the Northern Territory (Administration) Act 1910–1973 have continued in force in the Territory. Sections 14 and 15 of the Administration and Probate Ordinance which vests the court with jurisdiction to grant probate or administration speaks in general terms, although s 20 specifically authorizes the court to grant probate to Public Trustee of the Northern Territory (or of a State) where he has been named as executor, the Public Trustee Ordinance in the Northern Territory appointing Public Trustee as a corporation sole with perpetual succession. I mention these matters as O 69, rr 6(1)(a) and 16(1)(a) which refer to applications for grants of probate or letters of administration provide that applicants shall file an affidavit setting forth (inter alia) “that the applicant is a body corporate or is of the full age of twenty-one years”. I think it likely that the rules in referring to a “body corporate” are making provision for public trustee or companies empowered under their special Acts which are of application in this Territory. So nothing, in my view, turns on this reference to “body corporate”.": In the Will of Docker (1976) 12 ALR 521, 523-24 (NTSC, Muirhead J).

[C] Testamentary Guardianship - Appointment of

• See [G] in Parenting. 

[D] Wills Precedents

• Hutley's Australian Wills Precedents, 9th ed <https://dokumen.pub/qdownload/hutleys-australian-wills-precedents-9th-edition-9780409344042-0409344044-9780409344059-0409344052.html>, text. 

• * Chris Nowlan, 'How to Write a Will?' (Paper) <https://chrisnowlan.com/wills.pdf>. -- NSW

• Craig Birtles, 'Everything’s not awesome - let’s build it together. Construction and Rectification of Wills' (Paper, 3 November 2023) <https://twowentworth.com.au/wp-content/uploads/2024/05/C-Birtles-Construction-and-Rectification-of-Wills-3-November-2023.pdf>. 

[E] Statement of Wishes / Reasons for Appointment

• 'Letter of Wishes' (EZWills, webpage) <https://ezwills.com.sg/documents/Letter-of-Wishes-(free-version).docx>. 

• 'Letter of Wishes' (Succession Matters, Document) <https://successionmatters.com.au/success/wp-content/uploads/2018/05/Letter-of-Wishes-Template-1.pdf>. 

• 'Mencap's Guide to Writing your Letter of Wishes' <https://www.mencap.org.uk/file/4597/download?token=f5uh3Yzd>. 

• Children with intellectual disability: Angela Cox, 'Preparing a Statement of Wishes to provide for the care of your child with intellectual disability' (Special Voices, 9 July 2023) <https://www.specialvoices.com.au/preparing-a-statement-of-wishes-to-provide-for-the-care-of-your-child-with-intellectual-disability/>. 

• For Testamentary Guardians, see [G] in Parenting. Note, reasons, wishes, must address the factors assessed by the FCFCOA in allocating parental responsibility. 

> see eg, 'Statement of Reasons' (PD Law, Webpage) <https://pdlaw.com.au/other-services-estate-planning/>, archived at <https://archive.is/CdYUr>. 

> cf McKinley & Norman (No 2) [2011] FamCA 855.

> "The primary field of operation of the probate jurisdiction of the Court is the “administration” (management) of a deceased “estate” (property). Disputation about the appointment of a “testamentary guardian” (that is, a guardian of children appointed by will of a testator) is comparatively rare, and can be passed over upon a consideration of ordinary practice. Although the central provisions of a will generally provide a scheme for the disposition of property, wills commonly include a statement of a deceased person’s preferences for a funeral and arrangements for burial or cremation, and statements about why testamentary provision has been, or has not been, made for a particular family member or friend. A will may contain statements of social, political or religious significance (be they statements of fact or opinion or expressions of mere sentiment) without impugning the validity of the will; but the focus of the law is squarely upon what is necessary or convenient for an orderly winding up of the affairs of the deceased in a temporal setting. In current experience a will may or may not contain a provision regarding, or material to, arrangements for the disposal of the body of the deceased. In days gone by wills by Christian testators commonly included an explicit profession of faith. The law endeavours to respect all such provisions, but its primary focus is commonly upon the appointment of an executor (as the deceased’s “legal personal representative”) and what is required to facilitate an orderly succession to property and to accommodate those people who may reasonably be thought to have had a claim on the bounty of the deceased (most prominently, family members and dependants).": Re Estate of Ahmed Abou-Khalid [2024] NSWSC 253, [183]-[184]. 

> "162. The choice of Mr Downing as testamentary guardian for the children also made sense where Mr Findlay had known Mr Downing all his life and had become close friends with his wife, Ms Lintott. Mr Findlay was obviously comfortable with the children interacting with Mr Downing, Ms Lintott and their children, where the families lived close by. He regularly visited them with the children. 163. The replacement of Ms Kemp’s mother with Ms Moffat as a substitute testamentary guardian also made sense. Mr Findlay later described his younger sister’s “softness” and her ability to make his children “feel OK and safe”. The sisters’ roles under the new will were largely unchanged; they remained substitutionary beneficiaries, executors and testamentary guardians. There is nothing to suggest that Mr Findlay’s relationships with his sisters at that point in time were other than good. In short, Mr Findlay’s choices appear wise and considered.": Kemp v Findlay [2024] NSWSC 902.

> cf "In what appears to have been a calculated insult to Ms Gao, he made a series of gratuitous declarations in his will. He purported to appoint Patricia “to be the testamentary guardian of my infant child”, Laura, “as I do not believe that her mother Gao Hong is a fit and proper person to act as a guardian and parent of my child.” If this was not enough, he also recorded the following: “I HAVE MADE NO PROVISION under this my will for GAO HONG who lived with me in a de facto relationship during the years 1999 to 2007 inclusive and for no longer. GAO HONG has not assisted me nor contributed at all towards my asset pool, notwithstanding that she is the mother of my child LAURA. She only became my partner for sinister reasons and to obtain residency in this country. She by her behaviour is not entitled to any bequest under my will, she is dishonest and lives immorally. I understand the implications of not including her as a beneficiary, but I am of the belief that she is not entitled to any part of my estate.” In a perverse way, the terms of the deceased’s penultimate will confirm, rather than disprove, Ms Gao’s entitlement to be seen as a natural object of the deceased’s bounty. On the hearing of these proceedings, no party sought to make good the deceased’s criticisms of Ms Gao. No party submitted that she was anything other than a worthy wife and a good mother to Laura. No party submitted that she is a person lacking credit. The deceased himself, in his last will, abandoned his aggressive, adversarial language. His gift of a legacy of $10,000 to Ms Gao described her simply as “my former de facto partner and mother of my daughter Laura Pascale” He also recorded that, in the event that Ms Gao should predecease him or be unable for some reason to act as the guardian and parent of Laura, he appointed Ms Vana (by that time his wife) to be Laura’s testamentary guardian.": Estate Pascale [2016] NSWSC 443, [33]-[35]. 

> cf "On 11 April 2015, Kelli Maree Rushton died after a long battle with cancer.  This Court granted Probate of her Will on 6 November 2015. The plaintiff, Mark Desmond Kaney, was appointed Executor of Ms Rushton’s Estate. He was the brother of Ms Rushton. The defendant, Ben Anthony Rushton, had married Ms Rushton on 12 February 2005 but the couple had separated in early 2014. The couple had three children together, who at the time of these proceedings, were aged 13, 12 and 10 years old. It appears that the separation was not amicable as Ms Rushton was granted a Protection Order by the Redcliffe Magistrates Court in Queensland arising from a serious domestic violence incident on 28 February 2014. Ms Rushton alleged a long history of violence, intimidation, and threats of violence against her during the marriage. Ms Rushton moved to Canberra leaving Mr Rushton in the former matrimonial home in Queensland.  She purchased a home in Canberra in January 2015.  The property is Block 13 Section 377 Division of Macarthur, comprised in Volume 883 Folio 71, known as 8 Bayly Place, Macarthur. I shall refer to this property as the Property. She was the sole registered proprietor of the Property, subject to a mortgage to the National Australia Bank Ltd. Shortly after Ms Rushton died, Mr Rushton moved into the residence on the Property without any permission from either Ms Rushton before she died or from Mr Kaney as nominated Executor of her Estate. In Ms Rushton’s Will, she left an interest in the former matrimonial home in Queensland to Mr Rushton, subject to certain conditions, but no interest in the Property. The residue of her Estate was to pass to her three children absolutely. Mr Kaney was appointed the testamentary guardian of her three children.On 24 September 2015, the Family Court of Australia ordered that Mr Kaney have sole parental responsibility of the three children and that they should live with him, both on a long term and on a day-to-day basis. The orders were ultimately enforced by the Australian Federal Police. The children have since lived with Mr Kaney in his home in Florey.": Kaney v Rushton [2017] ACTSC 11, [1]-[7]. 

• Exclusion of Next of Kin

> See eg, Clark Rideaux Solicitors, <https://clarkrideaux.com.au/wp-content/uploads/2019/09/CRS-Will-Brochure.pdf>. 

[F] Professional Responsibility

• Sarah Millar, 'Case shows client must be identified' (QLS Proctor, 27 June 2025) <https://www.qlsproctor.com.au/2025/06/case-shows-client-must-be-identified/>, archived at <https://archive.md/EXrVM>: "... The tribunal acknowledged that a practitioner preparing an EPOA owes a duty to the donor to ensure capacity and voluntariness of the EPOA irrespective of who asks them to prepare the document or who else might be involved in any associated transactions.3 Practitioners who are taking instructions from third parties such as accountants and mortgage brokers on behalf of another must consider who they are acting for and verify who is their client. If it is not the third party, then they should ensure that they meet with the client to obtain instructions directly, appropriately scope their retainer, perhaps ascertain why the third party is necessary and obtain clear written authority from the client if they wish the practitioner to deal with that third party.4 The preference is usually to obtain instructions directly unless there are clear reasons why this is not possible.  In this case, the practitioner had a professional obligation to ensure the donor had capacity to execute the EPOA and that the draft prepared by him accorded with her wishes.5 The practitioner’s failure to consider who his client was and to whom he owed professional obligations when preparing the EPOA was conduct which fell substantially below that expected of a competent legal practitioner.6 ...", citing Legal Services and Complaints Committee v Hardie [2025] WASAT 50.

• Knowledge and approval of contents — Distinct concept from testamentary capacity and understanding will prepared on earlier instructions: "[259]  If a testator with the requisite capacity gives unequivocal instructions for a will and is then presented with a document to sign, the testator (without reading the document) can assume that the will deals with his or her property in accordance with the instructions and can therefore be taken to have knowledge and approval of the contents of the will when signed: Harrison v Petersen [2000] QSC 415 at [56] per Mullins J.": Hookway v Hookway [2016] TASSC 28

• Delay in preparation of a Will: 

> "[14]  As noted by Chadwick LJ (with the agreement of Butler-Sloss and Thorpe LJJ) at 333: “In [White v Jones] the testator’s intentions were frustrated by the solicitors’ delay in carrying out his instructions to prepare a new will providing for legacies to his daughters. The testator died before the new will was available for execution. The House of Lords decided, by a majority, that the assumption of responsibility by a solicitor to his client, who had given instructions for the drawing up of a will for execution, extended to an intended beneficiary under the proposed will in circumstances where the solicitor could reasonably foresee that a consequence of his negligence might be the loss of the intended legacy without either the testator or his estate having a remedy against him. That statement of principle, … reflects a passage in the speech of Lord Goff of Chieveley, with which Lord Browne- Wilkinson and Lord Nolan expressed agreement, at p 286 … . At first sight the facts in the present case take it outside the principle as stated by Lord Goff. This is a case in which the estate itself would have a remedy. The question, therefore, is whether the remedy which the House of Lords was prepared to extend to a disappointed beneficiary in White v Jones is confined to those cases, of which White v Jones was an example, in which the estate itself has no remedy — so that, absent a remedy at the suit of the beneficiary, there is no remedy at all; or is to be further extended to cases in which the estate does have a remedy but where the estate’s remedy will be of no advantage to the disappointed beneficiary.”": Vagg v McPhee [2013] NSWCA 29. 

> "[174]  This exposition of causation requires a rather more elaborate investigation of the facts than the plaintiff invites. I have already noticed what I perceive to be a problem. When one is considering whether, as a matter of common sense, the defendant's negligent failure to prepare a will and have it executed caused the plaintiff to lose its expectation of succeeding to the collection it is significant that Lady Trout deprived the defendant of the opportunity to give effect to her instructions by withdrawing its authority to prepare her will. Had she instructed the defendant on 5 May, 1988 that she wished to sign a will immediately and that draft 4 recorded her testamentary wishes an engrossment of the will could have been prepared within hours. It could have been executed on the afternoon of 5 May or on 6 May. When questions of policy and value judgment intrude into the enquiry about causation it seems difficult to ignore the point that the cause of the plaintiff's loss was not the defendant's failure to prepare a will for execution prior to 5 May, 1988, but Lady Trout's direction to it on that day not to proceed further and/or her instruction to Mr Meadows to prepare a will without asking him to proceed urgently. Lord Goff in White at 268 noted that: "... liability will not of course arise in cases in which the defect in the will comes to light before the death of the testator, and the testator either leaves the will as it is or otherwise continues to exclude the previously intended beneficiary from the relevant benefit". This is not quite that case but it is closer to it than a case of deficient execution or attestation.": Queensland Art Gallery Board of Trustees v Henderson Trout (A Firm) (QSC, No 1750 of 1992, Chesterman J, Unreported) BC9805920. 

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