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Wills & Testamentary Trusts

The purpose of this client report is to briefly advise you on issues that may affect you, and which may require you to take some immediate action.  


A Will is a legal written disposition taking effect on your death by which you choose:

a)    Beneficiaries who will receive your property; and

b)    Executors who are responsible for carrying out your directions

The Executors carry out your directions on how you want to distribute your property to your Beneficiaries (subject to the Court’s powers under family provision legislation).

You must ensure that there is provision for the care and upbringing of any children or other dependants. You retain the right to choose guardians to take care of your children until they become adults.  


You can keep control over who inherits your assets including the terms of the disposition and can create tax effective testamentary trusts in your Will that benefit and take into account the circumstances of your family or other beneficiaries.

By leaving effective written instructions to your Executor, you minimize any possible dispute over the distribution of your property and maximise savings on the Estate’s costs and expenses.

It is prudent, wise and responsible (even if you only own a few assets) to ensure your affairs are in order and accordingly maximising the benefits for your family or friends.

In failing to make a Will, you do not control your own affairs leaving the distributions to government rules. These rules do not take account your personal circumstances, or what you may have wanted. You also lose the right to appoint your own Executor forcing the Supreme Court to appoint an Administrator to distribute your property.

The Administrator has limited authority and powers, e.g. limited powers of investment, which may affect the income created by your assets, with your Beneficiaries losing the benefits of a tax effective plan or strategy.


Regular reviews of your Will guarantees that you are maximizing the benefits to your family or friends and that the Executor follows your true wishes. Numerous situations that affect or change your life may force you to update your Will, e.g. change in your financial circumstances, starting a new business, new family, divorce, receiving superannuation or retiring, or other financial planning requirements, etc.

Many situations that exist require you to take immediate action. Please find enclosed a brief Case History that highlights the need when circumstances change to properly review your Will. Do not be negligent and leave nothing to chance.  


There are a number of legislative requirements that govern the validity of Wills and tax effective Testamentary Trusts, such as:

a)    Age

b)    Whether you are married or making a Will in contemplation of marriage

c)    Divorce and separation after execution of your Will

d)    Testamentary Capacity

e)    The written contents of the Will and the interpretation of the Will

f)    The execution of the Will

g)    Financial planning aspects of the Testamentary Trusts

When disputes or doubts arise on any of the above aspects, the Supreme Court will become involved and makes a determination as to the validity of the Will. It is possible for the Court to reject the validity of a Will, which will have undesirable consequences for the Estate.

Never leave anything relating to your Will to chance, such as, not having a Will, or buying a cheap  “…do it yourself Will…”

Invariably, this will always lead to major legal problems with financially disastrous results and is quite irresponsible. You should always consult with Behan Legal when considering your Will, or any changes to an existing Will so we can ensure that you properly express your wishes in the Will and meet all legal formalities.


Behan Legal assists and advises on these important issues. For an appointment, call 03 9646 0344 .

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