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Related wills

Related wills are used where people want to relate their wills in some way. Joint wills are not common. Most will-makers make separate documents. However, couples often make what are known as 'mutual' or 'mirror' wills where they may leave everything to each other in the first instance and then to the same beneficiaries after they have both died.

Although the provisions of this kind of will are binding on the first to die, it may not be on the surviving will-maker who can change his or her will at any time. The beneficiaries of the original wills may have some rights at law, but it will require expensive court action.

For that to occur there should be evidence, preferably in the wills, of the contract between the parties not to change their wills without the knowledge and consent of the other. Those wills are usually called 'contract wills'. Contract wills can cause legal difficulties and should not be entered into lightly or without professional advice.

Testamentary trust wills

Testamentary trust wills are becoming increasingly popular. Under such a will, your estate is not left outright to your beneficiaries, but is held in trust for them by the person appointed in your will as trustee, under certain conditions stipulated in your will.

It is strongly recommended that you use a lawyer, a private trustee company or the NSW Trustee to draft the will if you wish to set up a trust.

Some reasons for setting up a trust are:

  • tax considerations
  • if a beneficiary has an intellectually disability
  • if a beneficiary has a problem, for example, in relation to alcohol, drugs or gambling
  • if a beneficiary is under 18 years of age
  • if the will-maker has more than one family.

Normally the beneficiaries will not have what is called a vested interest in the trust: that is, they cannot claim an outright share in the estate. The will may provide that the trust is to be wound up at a particular date (for example, on the death of a beneficiary), and may state exactly who will then inherit the share that was held in trust for that beneficiary. Alternatively, the trustee may have the power to determine when the trust will end (subject to the law) and which beneficiaries will inherit the estate and in what proportions. The latter type of trust is known as a discretionary trust.