---
title: "Trusts & Estate Planning"
url: "https://ailawframework.com/practice/trusts-and-estate-planning"
type: "practice_area"
site: "AI Law Framework"
id: "A19"
task_count: 26
last_reviewed: "2026-10-10"
---

# Trusts & Estate Planning

> Map the ownership structure, trust instruments and intended beneficiaries before planning a change. Check the interaction of succession, tax and superannuation issues with appropriate specialist input.

Canonical page: https://ailawframework.com/practice/trusts-and-estate-planning  
Last reviewed: 2026-10-10

Site index for agents: https://ailawframework.com/llms.txt

Also covers: Wills & Estates, Succession Law, Estate Administration, Testamentary Trusts, Private Client, Deceased Estates, Probate, Intestacy

Trusts and estate planning combines highly fact-specific client instructions (family dynamics, asset structures, capacity, competing claims) with a dense and non-uniform legislative landscape across eight Australian jurisdictions, plus a superannuation regime that sits entirely outside the estate. The AI risk profile is extreme: errors in executed documents (wills, trust deeds, BDBNs, EPAs) may not surface for decades, by which time the client is dead, the limitation period for discovery may be tolled to the date of harm, and professional indemnity exposure is both severe and long-tailed. Hallucinated legislative provisions, wrong-jurisdiction citations, stale threshold figures, and missed tax triggers are characteristic failure modes that laboratory accuracy benchmarks systematically understate — and that the three disconnections (missing matter context, ambiguous use-cases, task-level gains absorbed at matter level) make especially acute.

## Key facts

- Tasks: 26
- Green: 10, Yellow: 12, Red: 4
- Levels: Green is AI drafts and the lawyer checks; Yellow is lawyer and AI draft together; Red is the lawyer writes and AI may only check, clarify or collect data.

## Principles

- **Define the matter**: Confirm the client’s instructions, jurisdiction, intended output and the information available before dividing the work.
- **Verify the authorities**: Open each relied-on authority independently. Confirm its existence, current status, proposition and any quotation or pinpoint reference.
- **Preserve the witness’s evidence**: Confirm each factual assertion with the witness and original record. Preserve the witness’s own knowledge and words, and check the court’s rules for this document.

## Checklist

- Open each relied-on authority independently. Confirm its existence, current status, proposition and any quotation or pinpoint reference.
- Confirm each factual assertion with the witness and original record. Preserve the witness’s own knowledge and words, and check the court’s rules for this document.
- Trace every relied-on figure to its source, confirm dates and assumptions, and independently recalculate totals or derived amounts.
- Check the current court or regulator requirements, prescribed form and attachments for the intended document and filing.
- Review operative clauses in the complete document, including definitions, cross-references, schedules and inconsistencies with the instructions.
- Confirm that the wording reflects the client’s instructions and contains no unintended admission, concession or commitment. Check the recipient and tone.
- Confirm instructions and personal circumstances through appropriate direct engagement. Have the responsible lawyer assess safety, capacity or vulnerability concerns and escalation.
- Verify dates, people and sequence against contemporaneous records. Preserve uncertainty and identify gaps or conflicting accounts.
- Verify the applicable jurisdiction and the version of each relevant law, rule or instrument in force at the material time.
- Resolve exceptions and record the responsible lawyer’s approval of the exact output and intended use.

## Restrictions

- Confirm firm, client and applicable court or professional restrictions before using any AI feature.

## Jurisdiction note

Apply this guidance to the actual matter and jurisdiction. Confirm current requirements before relying on an example.

## Basis

Practice guidance supports planning; the responsible lawyer confirms the scope, evidence and review requirements for the matter.

Also covers: Wills & Estates, Succession Law, Estate Administration, Testamentary Trusts, Private Client, Deceased Estates, Probate, Intestacy

Trusts and estate planning combines highly fact-specific client instructions (family dynamics, asset structures, capacity, competing claims) with a dense and non-uniform legislative landscape across eight Australian jurisdictions, plus a superannuation regime that sits entirely outside the estate. The AI risk profile is extreme: errors in executed documents (wills, trust deeds, BDBNs, EPAs) may not surface for decades, by which time the client is dead, the limitation period for discovery may be tolled to the date of harm, and professional indemnity exposure is both severe and long-tailed. Hallucinated legislative provisions, wrong-jurisdiction citations, stale threshold figures, and missed tax triggers are characteristic failure modes that laboratory accuracy benchmarks systematically understate — and that the three disconnections (missing matter context, ambiguous use-cases, task-level gains absorbed at matter level) make especially acute.

## Limits on AI assistance

Red lines — never in this area

## Limits on AI assistance

AI must never produce a final will, trust deed, BDBN, EPA or ACD/AHD that is executed by a client without a lawyer reviewing the complete text against the current jurisdiction-specific legislative requirements and current prescribed forms — these instruments, once executed, are frequently irremediable. AI must never provide a definitive view on testamentary capacity — capacity is a legal conclusion requiring the lawyer's personal assessment at the time of signing, documented in a contemporaneous attendance note. AI summarisation of medical records cannot substitute for this. AI must never independently advise on superannuation death benefit tax consequences, nominate who should receive a death benefit, or characterise a BDBN as valid — these turn on the actual trust deed of the specific fund, SIS Act requirements, and income tax law that interact in ways AI cannot reliably resolve without reading the deed. AI must never produce final executor accounts or a final estate distribution schedule that is provided to beneficiaries without line-by-line lawyer verification of all receipts, payments, entitlements, and limitation period expiry — executor accounts carry personal liability for the executor and the certifying lawyer. AI must never generate court submissions, affidavits, or pleadings in probate or contested estate proceedings where any cited authority has not been independently verified against an authoritative legal database (AustLII, LexisNexis, Westlaw AU) — Re Walker [2025] VSC 714 and Oberoi v Douglas [2026] VSCA 31 are direct Australian precedents for disciplinary consequences. AI must never determine whether a trust deed variation constitutes a resettlement — this triggers potential ad valorem duty on all trust assets and possible CGT event E1, and requires a lawyer's jurisdiction-specific analysis against current state revenue rulings. AI must never produce a Special Disability Trust deed without the lawyer directly comparing the output against the current DSS model deed downloaded from the DSS website — any deviation from compulsory clauses voids the statutory concessions. AI must never state a specific CGT rate, land tax threshold, land tax grace period, stamp duty rate, or statutory legacy amount in advice to a client without that figure being independently verified against the current ATO and relevant State Revenue Office publications — rates and thresholds change annually and vary by state; AI training data is routinely stale on these specifics. AI must never prepare or contribute to a filing in any Australian court or tribunal without the supervising lawyer checking the court's current AI-use protocol and, where disclosure is required (e.g. NSW SC Gen 23), making that disclosure in the filing. AI must never be used with identifiable client information on a public LLM platform (ChatGPT, Bard, Gemini standard tier, etc.) — estate planning files contain highly sensitive financial, family, medical and testamentary information; use is restricted to enterprise-tier tools with a data processing agreement that prohibits training on client data (confirmed by December 2024 joint statement of NSW Law Society, VLSB+C, and LPBWA).

- AI must never produce a final will, trust deed, BDBN, EPA or ACD/AHD that is executed by a client without a lawyer reviewing the complete text against the current jurisdiction-specific legislative requirements and current prescribed forms — these instruments, once executed, are frequently irremediable.
- AI must never provide a definitive view on testamentary capacity — capacity is a legal conclusion requiring the lawyer's personal assessment at the time of signing, documented in a contemporaneous attendance note. AI summarisation of medical records cannot substitute for this.
- AI must never independently advise on superannuation death benefit tax consequences, nominate who should receive a death benefit, or characterise a BDBN as valid — these turn on the actual trust deed of the specific fund, SIS Act requirements, and income tax law that interact in ways AI cannot reliably resolve without reading the deed.
- AI must never produce final executor accounts or a final estate distribution schedule that is provided to beneficiaries without line-by-line lawyer verification of all receipts, payments, entitlements, and limitation period expiry — executor accounts carry personal liability for the executor and the certifying lawyer.
- AI must never generate court submissions, affidavits, or pleadings in probate or contested estate proceedings where any cited authority has not been independently verified against an authoritative legal database (AustLII, LexisNexis, Westlaw AU) — Re Walker [2025] VSC 714 and Oberoi v Douglas [2026] VSCA 31 are direct Australian precedents for disciplinary consequences.
- AI must never determine whether a trust deed variation constitutes a resettlement — this triggers potential ad valorem duty on all trust assets and possible CGT event E1, and requires a lawyer's jurisdiction-specific analysis against current state revenue rulings.
- AI must never produce a Special Disability Trust deed without the lawyer directly comparing the output against the current DSS model deed downloaded from the DSS website — any deviation from compulsory clauses voids the statutory concessions.
- AI must never state a specific CGT rate, land tax threshold, land tax grace period, stamp duty rate, or statutory legacy amount in advice to a client without that figure being independently verified against the current ATO and relevant State Revenue Office publications — rates and thresholds change annually and vary by state; AI training data is routinely stale on these specifics.
- AI must never prepare or contribute to a filing in any Australian court or tribunal without the supervising lawyer checking the court's current AI-use protocol and, where disclosure is required (e.g. NSW SC Gen 23), making that disclosure in the filing.
- AI must never be used with identifiable client information on a public LLM platform (ChatGPT, Bard, Gemini standard tier, etc.) — estate planning files contain highly sensitive financial, family, medical and testamentary information; use is restricted to enterprise-tier tools with a data processing agreement that prohibits training on client data (confirmed by December 2024 joint statement of NSW Law Society, VLSB+C, and LPBWA).

## Jurisdiction-specific considerations

Australian traps

## Jurisdiction-specific considerations

SA Succession Act 2023 in force 1 January 2025: this single Act replaced the Wills Act 1936 (SA), Inheritance (Family Provision) Act 1972 (SA), and the Administration and Probate Act 1919 (SA). AI trained before 2025 will apply the superseded SA Acts and produce incorrect will, intestacy, family provision, and grant-of-administration advice for SA clients. Eligible applicants for family provision claims now include step-children, grandchildren, parents and siblings (s 7 SA Succession Act 2023) — but with modified standing criteria that differ from NSW. Verify domicile before applying any SA precedent or rule. Superannuation is a non-estate asset governed by the SIS Act 1993 and SISR 1994 and by fund-specific trust deeds. Hill v Zuda Pty Ltd (2022) 273 CLR 603 (HCA) confirmed reg 6.17A SISR does not impose lapsing or two-witness requirements on SMSFs — but only if the SMSF deed does not impose them. The BDBN form, validity period, and lapsing rules all depend on reading the actual deed of the specific fund. Retail and industry fund BDBNs are still governed by reg 6.17A and do lapse every three years unless the fund has a non-lapsing mechanism in its deed (rare). Lawyers must obtain and read the actual deed before advising. Draft TD 2026/D1 (ATO, released February 2026): the ATO proposes to deny the CGT main residence exemption under s 118-195 ITAA 1997 where a beneficiary occupies a property under a testamentary trust pursuant to trustee discretion, rather than an express right granted by the will. This is contested (Law Council submission, February 2026) and not yet finalised — but it is a live risk. Practitioners must advise clients now of the risk and structure occupation rights as express will provisions where the exemption is intended. AI trained before 2026 will not reflect this draft determination. Land tax on deceased estates — state-by-state grace periods (verify annually with each SRO): NSW: 2 years from date of death for principal residence; discretionary testamentary trust loses the $1,075,000 general threshold after 2 years (becomes a 'special trust' with no threshold); fixed testamentary trust retains the threshold. Vic: 3 years concessionary period (SRO Victoria requires lodgment of commencement and completion forms within prescribed timeframes). Qld: exemption applies only to the next 30 June following date of death (maximum ~12 months). SA: 5 years (RevenueSA deceased estates concession). WA: 2 years. AI applying a single grace period to all states is a characteristic failure mode. Queensland perpetuity period reform: the Property Law Act 2023 (Qld), in force 1 August 2025, extended the maximum trust period from 80 to 125 years and abolished the common law rule against perpetuities for Queensland trusts. Existing Qld trusts can opt into the 125-year period if the deed permits or by court order. Will precedents and trust deed templates drafted with an 80-year vesting date governed by Qld law should be reviewed. NSW (80 years, Perpetuities Act 1984) and WA (80 years) have not adopted the 125-year period. Vic abolished the rule against perpetuities (Property Law Act 2023 Vic); SA largely abolished it; NT abolished the common law rule; ACT and Tasmania have their own statutory regimes. AI applying a uniform perpetuity position is an error. NSW surcharge purchaser duty: increased to 9% from 1 January 2025 (previously 8%). This applies to any discretionary trust where any potential beneficiary (including remote default beneficiaries) is a foreign person. Revenue NSW General Ruling G010 governs. The deed must expressly and irrevocably exclude all foreign persons from the beneficiary class. Lawyers must review existing trust deeds before any acquisition and advise on foreign beneficiary risk. AI may apply the prior 8% rate or misstate the exclusion mechanism. Stamp duty on trust deed establishment and variations — resettlement risk: NSW and Victoria impose ad valorem duty on trust establishment. A deed variation that constitutes a resettlement (vesting of trust property in a new trust) exposes all dutiable property to full transfer duty and may trigger CGT event E1. The resettlement analysis is jurisdiction-specific, fact-dependent, and turns on current state revenue rulings and case law (NSW: Arakella; Vic: Commissioner of State Revenue v Lam & Kym [2004]). Filing deadlines are 30 days (NSW), 30 days (Vic), 30 days (Qld) — these are non-negotiable and non-extendable without penalty. Court AI disclosure requirements — currently in force: NSW Supreme Court Practice Note SC Gen 23 (effective 3 February 2025) prohibits AI-generated content in affidavits, witness statements, and character references without court leave, and requires disclosure of any AI use in legal documents. NSW Practice Note SC EQ 07 (from 17 June 2024) applies to the Probate and Family Provision List. Re Walker [2025] VSC 714 (Vic SC, November 2025) confirmed courts will exercise inherent disciplinary jurisdiction against practitioners who rely on AI-hallucinated citations. Oberoi v Douglas [2026] VSCA 31 (Vic Court of Appeal) extended this to appellate proceedings in estate litigation. Check current protocols for each court and registry before any AI-assisted filing. ASCR Rule 9 (confidentiality) and AI: the December 2024 joint statement of the NSW Law Society, VLSB+C, and Legal Practice Board of WA confirms that uploading identifiable client information to a public LLM constitutes a breach of ASCR Rule 9.1. Estate planning files contain medical, family, financial, and testamentary information of the highest sensitivity. Only enterprise-tier AI tools with data processing agreements prohibiting training on client data may be used with client-specific information. AML/CTF Tranche 2 reforms: from 1 July 2026, trust establishment and estate administration services provided by lawyers will be designated services under the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth) as expanded by the Tranche 2 reforms. Law firms will be required to implement AML/CTF programs, conduct customer due diligence, and report suspicious matters for in-scope services. AI-assisted intake and instructions processes must be reviewed for compliance with these obligations from mid-2026. Firms using AI for client onboarding in estate planning should ensure any automated CDD process satisfies AUSTRAC requirements. Professional indemnity tail: errors in estate planning documents may not be discovered until the testator dies, potentially decades after drafting. The limitation period may run from the date of damage (often death or distribution), significantly extending the professional exposure window. A defective BDBN, will, or trust deed validated by superficial AI-assisted review with inadequate lawyer oversight creates a long-tailed indemnity exposure that may not be claimed for 20-40 years.

- SA Succession Act 2023 in force 1 January 2025: this single Act replaced the Wills Act 1936 (SA), Inheritance (Family Provision) Act 1972 (SA), and the Administration and Probate Act 1919 (SA). AI trained before 2025 will apply the superseded SA Acts and produce incorrect will, intestacy, family provision, and grant-of-administration advice for SA clients. Eligible applicants for family provision claims now include step-children, grandchildren, parents and siblings (s 7 SA Succession Act 2023) — but with modified standing criteria that differ from NSW. Verify domicile before applying any SA precedent or rule.
- Superannuation is a non-estate asset governed by the SIS Act 1993 and SISR 1994 and by fund-specific trust deeds. Hill v Zuda Pty Ltd (2022) 273 CLR 603 (HCA) confirmed reg 6.17A SISR does not impose lapsing or two-witness requirements on SMSFs — but only if the SMSF deed does not impose them. The BDBN form, validity period, and lapsing rules all depend on reading the actual deed of the specific fund. Retail and industry fund BDBNs are still governed by reg 6.17A and do lapse every three years unless the fund has a non-lapsing mechanism in its deed (rare). Lawyers must obtain and read the actual deed before advising.
- Draft TD 2026/D1 (ATO, released February 2026): the ATO proposes to deny the CGT main residence exemption under s 118-195 ITAA 1997 where a beneficiary occupies a property under a testamentary trust pursuant to trustee discretion, rather than an express right granted by the will. This is contested (Law Council submission, February 2026) and not yet finalised — but it is a live risk. Practitioners must advise clients now of the risk and structure occupation rights as express will provisions where the exemption is intended. AI trained before 2026 will not reflect this draft determination.
- Land tax on deceased estates — state-by-state grace periods (verify annually with each SRO): NSW: 2 years from date of death for principal residence; discretionary testamentary trust loses the $1,075,000 general threshold after 2 years (becomes a 'special trust' with no threshold); fixed testamentary trust retains the threshold. Vic: 3 years concessionary period (SRO Victoria requires lodgment of commencement and completion forms within prescribed timeframes). Qld: exemption applies only to the next 30 June following date of death (maximum ~12 months). SA: 5 years (RevenueSA deceased estates concession). WA: 2 years. AI applying a single grace period to all states is a characteristic failure mode.
- Queensland perpetuity period reform: the Property Law Act 2023 (Qld), in force 1 August 2025, extended the maximum trust period from 80 to 125 years and abolished the common law rule against perpetuities for Queensland trusts. Existing Qld trusts can opt into the 125-year period if the deed permits or by court order. Will precedents and trust deed templates drafted with an 80-year vesting date governed by Qld law should be reviewed. NSW (80 years, Perpetuities Act 1984) and WA (80 years) have not adopted the 125-year period. Vic abolished the rule against perpetuities (Property Law Act 2023 Vic); SA largely abolished it; NT abolished the common law rule; ACT and Tasmania have their own statutory regimes. AI applying a uniform perpetuity position is an error.
- NSW surcharge purchaser duty: increased to 9% from 1 January 2025 (previously 8%). This applies to any discretionary trust where any potential beneficiary (including remote default beneficiaries) is a foreign person. Revenue NSW General Ruling G010 governs. The deed must expressly and irrevocably exclude all foreign persons from the beneficiary class. Lawyers must review existing trust deeds before any acquisition and advise on foreign beneficiary risk. AI may apply the prior 8% rate or misstate the exclusion mechanism.
- Stamp duty on trust deed establishment and variations — resettlement risk: NSW and Victoria impose ad valorem duty on trust establishment. A deed variation that constitutes a resettlement (vesting of trust property in a new trust) exposes all dutiable property to full transfer duty and may trigger CGT event E1. The resettlement analysis is jurisdiction-specific, fact-dependent, and turns on current state revenue rulings and case law (NSW: Arakella; Vic: Commissioner of State Revenue v Lam & Kym [2004]). Filing deadlines are 30 days (NSW), 30 days (Vic), 30 days (Qld) — these are non-negotiable and non-extendable without penalty.
- Court AI disclosure requirements — currently in force: NSW Supreme Court Practice Note SC Gen 23 (effective 3 February 2025) prohibits AI-generated content in affidavits, witness statements, and character references without court leave, and requires disclosure of any AI use in legal documents. NSW Practice Note SC EQ 07 (from 17 June 2024) applies to the Probate and Family Provision List. Re Walker [2025] VSC 714 (Vic SC, November 2025) confirmed courts will exercise inherent disciplinary jurisdiction against practitioners who rely on AI-hallucinated citations. Oberoi v Douglas [2026] VSCA 31 (Vic Court of Appeal) extended this to appellate proceedings in estate litigation. Check current protocols for each court and registry before any AI-assisted filing.
- ASCR Rule 9 (confidentiality) and AI: the December 2024 joint statement of the NSW Law Society, VLSB+C, and Legal Practice Board of WA confirms that uploading identifiable client information to a public LLM constitutes a breach of ASCR Rule 9.1. Estate planning files contain medical, family, financial, and testamentary information of the highest sensitivity. Only enterprise-tier AI tools with data processing agreements prohibiting training on client data may be used with client-specific information.
- AML/CTF Tranche 2 reforms: from 1 July 2026, trust establishment and estate administration services provided by lawyers will be designated services under the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth) as expanded by the Tranche 2 reforms. Law firms will be required to implement AML/CTF programs, conduct customer due diligence, and report suspicious matters for in-scope services. AI-assisted intake and instructions processes must be reviewed for compliance with these obligations from mid-2026. Firms using AI for client onboarding in estate planning should ensure any automated CDD process satisfies AUSTRAC requirements.
- Professional indemnity tail: errors in estate planning documents may not be discovered until the testator dies, potentially decades after drafting. The limitation period may run from the date of damage (often death or distribution), significantly extending the professional exposure window. A defective BDBN, will, or trust deed validated by superficial AI-assisted review with inadequate lawyer oversight creates a long-tailed indemnity exposure that may not be claimed for 20-40 years.

## Risks to address

How it goes wrong

## Risks to address

AI cites non-existent or hallucinated case authority in contested estate submissions — Re Walker [2025] VSC 714 (Vic SC, November 2025): the defendant's solicitor submitted AI-generated opening submissions containing hallucinated citations in breach of the Victoria Supreme Court's May 2024 AI guidelines, resulting in referral for disciplinary inquiry. Oberoi v Douglas [2026] VSCA 31 (Vic Court of Appeal, 2026): similar AI-hallucinated citations in estate litigation at appellate level. AI applies an outdated or wrong-jurisdiction Succession Act — e.g. applying SA's Wills Act 1936 or Inheritance (Family Provision) Act 1972 to a post-1 January 2025 SA matter, or applying NSW family provision categories to a Queensland estate. The SA Succession Act 2023 substantially changed eligible applicants, formal will requirements, and intestacy rules. AI trained before 2025 will not know the commencement date or the new provisions. AI omits superannuation from estate planning advice entirely, or treats a BDBN as part of the will and enforceable against the estate — causing the superannuation to pass on trustee discretion rather than as directed, with up to 17% death benefits tax for non-dependant beneficiaries and potential loss of the entire benefit to unintended recipients. AI applies the Hill v Zuda principle to all BDBNs without reading the specific fund deed — if an SMSF deed requires compliance with reg 6.17A or imposes lapsing, the non-lapsing BDBN advice is wrong; conversely if a retail fund deed has non-lapsing provisions (rare), AI may incorrectly state the BDBN will lapse in three years. AI states that the CGT main residence exemption applies to a testamentary trust property where a beneficiary occupies it under trustee discretion — failing to flag the ATO's draft TD 2026/D1 position, which may deny the exemption for this occupation period. The client structures the estate expecting an exemption the ATO will deny. AI applies a uniform land tax grace period or threshold to all Australian states — advising an executor that a three-year exemption applies in Queensland (which only exempts to the next 30 June, approximately 12 months) or that a testamentary discretionary trust retains the NSW general threshold after the 2-year post-death period (it does not — it becomes a special trust with no threshold).

- AI cites non-existent or hallucinated case authority in contested estate submissions — Re Walker [2025] VSC 714 (Vic SC, November 2025): the defendant's solicitor submitted AI-generated opening submissions containing hallucinated citations in breach of the Victoria Supreme Court's May 2024 AI guidelines, resulting in referral for disciplinary inquiry. Oberoi v Douglas [2026] VSCA 31 (Vic Court of Appeal, 2026): similar AI-hallucinated citations in estate litigation at appellate level.
- AI applies an outdated or wrong-jurisdiction Succession Act — e.g. applying SA's Wills Act 1936 or Inheritance (Family Provision) Act 1972 to a post-1 January 2025 SA matter, or applying NSW family provision categories to a Queensland estate. The SA Succession Act 2023 substantially changed eligible applicants, formal will requirements, and intestacy rules. AI trained before 2025 will not know the commencement date or the new provisions.
- AI omits superannuation from estate planning advice entirely, or treats a BDBN as part of the will and enforceable against the estate — causing the superannuation to pass on trustee discretion rather than as directed, with up to 17% death benefits tax for non-dependant beneficiaries and potential loss of the entire benefit to unintended recipients.
- AI applies the Hill v Zuda principle to all BDBNs without reading the specific fund deed — if an SMSF deed requires compliance with reg 6.17A or imposes lapsing, the non-lapsing BDBN advice is wrong; conversely if a retail fund deed has non-lapsing provisions (rare), AI may incorrectly state the BDBN will lapse in three years.
- AI states that the CGT main residence exemption applies to a testamentary trust property where a beneficiary occupies it under trustee discretion — failing to flag the ATO's draft TD 2026/D1 position, which may deny the exemption for this occupation period. The client structures the estate expecting an exemption the ATO will deny.
- AI applies a uniform land tax grace period or threshold to all Australian states — advising an executor that a three-year exemption applies in Queensland (which only exempts to the next 30 June, approximately 12 months) or that a testamentary discretionary trust retains the NSW general threshold after the 2-year post-death period (it does not — it becomes a special trust with no threshold).

## Review checklist

The lawyer's review checklist

## Review checklist

Jurisdiction confirmed: is the correct state or territory Act applied based on the testator's or deceased's domicile at the relevant date? For SA matters, is the Succession Act 2023 (in force 1 January 2025) being applied, not the superseded Wills Act 1936 or Inheritance (Family Provision) Act 1972? Has every legislative section, case citation, dollar threshold, percentage rate, and regulatory limit in the AI output been independently verified against an authoritative Australian source (AustLII, Westlaw AU, LexisNexis AU, or the relevant SRO/ATO website)? No AI-sourced figure or authority goes to a client or court unverified. Does the document (will, trust deed, BDBN, EPA/ACD) comply with the current prescribed form and formal execution requirements for the client's jurisdiction? Has the lawyer compared the AI output against the Registrar's, DSS's, or court registry's currently published form, not a prior version in the firm's precedent bank? Is superannuation correctly identified as a non-estate asset? Has the actual SMSF or retail/industry fund deed been obtained and read to confirm BDBN form requirements, lapsing rules, and trustee discretion scope for this specific fund? Have all jurisdiction-specific tax and duty triggers been checked and verified against current publications: (a) stamp duty on trust establishment or variation and resettlement risk; (b) land tax grace period and threshold treatment (special trust vs fixed trust) for the relevant state; (c) CGT main residence exemption eligibility under current ATO guidance including draft TD 2026/D1; (d) NSW surcharge purchaser duty (9% from 1 January 2025) for any trust with a potential foreign beneficiary? Has testamentary capacity been personally assessed by the lawyer and documented in a contemporaneous attendance note signed on the day? Where capacity is or may be in doubt, is there an independent medical assessment on file? Has the family provision claim risk been assessed against the specific eligible-applicant categories in the governing state Act (not AI's generic summary), and has the client been advised in writing of identified risks? Is the quantum assessment based on the actual disclosed asset pool? For any document, submission, or affidavit to be filed in court: has the current AI-use protocol for that specific court and registry been checked? Where disclosure of AI use is required (e.g. NSW SC Gen 23), has the disclosure been made in the required form? Has the lawyer personally verified every cited authority exists and every quotation is accurate?

- Jurisdiction confirmed: is the correct state or territory Act applied based on the testator's or deceased's domicile at the relevant date? For SA matters, is the Succession Act 2023 (in force 1 January 2025) being applied, not the superseded Wills Act 1936 or Inheritance (Family Provision) Act 1972?
- Has every legislative section, case citation, dollar threshold, percentage rate, and regulatory limit in the AI output been independently verified against an authoritative Australian source (AustLII, Westlaw AU, LexisNexis AU, or the relevant SRO/ATO website)? No AI-sourced figure or authority goes to a client or court unverified.
- Does the document (will, trust deed, BDBN, EPA/ACD) comply with the current prescribed form and formal execution requirements for the client's jurisdiction? Has the lawyer compared the AI output against the Registrar's, DSS's, or court registry's currently published form, not a prior version in the firm's precedent bank?
- Is superannuation correctly identified as a non-estate asset? Has the actual SMSF or retail/industry fund deed been obtained and read to confirm BDBN form requirements, lapsing rules, and trustee discretion scope for this specific fund?
- Have all jurisdiction-specific tax and duty triggers been checked and verified against current publications: (a) stamp duty on trust establishment or variation and resettlement risk; (b) land tax grace period and threshold treatment (special trust vs fixed trust) for the relevant state; (c) CGT main residence exemption eligibility under current ATO guidance including draft TD 2026/D1; (d) NSW surcharge purchaser duty (9% from 1 January 2025) for any trust with a potential foreign beneficiary?
- Has testamentary capacity been personally assessed by the lawyer and documented in a contemporaneous attendance note signed on the day? Where capacity is or may be in doubt, is there an independent medical assessment on file?
- Has the family provision claim risk been assessed against the specific eligible-applicant categories in the governing state Act (not AI's generic summary), and has the client been advised in writing of identified risks? Is the quantum assessment based on the actual disclosed asset pool?
- For any document, submission, or affidavit to be filed in court: has the current AI-use protocol for that specific court and registry been checked? Where disclosure of AI use is required (e.g. NSW SC Gen 23), has the disclosure been made in the required form? Has the lawyer personally verified every cited authority exists and every quotation is accurate?

## Tasks (26)

| Task | Level | How AI is used | What the lawyer must review |
| --- | --- | --- | --- |
| Prepare an estate-planning questionnaire and structure options note | Green | From the intake, draft a questionnaire (family, entities, control, wishes) and a one-page options note (will only, testamentary trust, existing family trust). | Treat structure choice as advice Refer tax consequences to a tax specialist unless the firm is retained for tax |
| Draft testamentary-trust clauses for the will from the instructions | Yellow | Produce first-draft discretionary or protective testamentary-trust clauses (beneficiaries, appointor, vesting, streaming) from the instructions and the firm's… | Read against the rest of the will and the client's actual control wishes Check perpetuity and vesting rules in the governing law |
| Draft or vary a discretionary family-trust deed | Yellow | Produce a first-draft deed or variation from the instructions, with a table of trustee, appointor, beneficiaries and amendment power. | Decide amendment power and resettlement risk yourself Confirm stamping and tax referrals Do not execute a generated deed without a full read |
| [Map death-benefit and retirement-fund nominations against the deed](https://ailawframework.com/practice/trusts-and-estate-planning/map-death-benefit-and-retirement-fund-nominations-against-the-deed.md) | Red | From the fund deed and nomination, table whether a binding nomination is available, who is a dependant, and how the benefit interacts with the will, with deed… | Read this fund's deed; death benefits usually sit outside the estate Apply fund-law and tax-law dependant tests separately; they differ |
| [Draft a special-needs or protective trust from the instructions](https://ailawframework.com/practice/trusts-and-estate-planning/draft-a-special-needs-or-protective-trust-from-the-instructions.md) | Yellow | At the lawyer's direction and clause by clause, the tool works the trust up from the firm's precedent and the instructions — sole beneficiary, the care and… | The lawyer directs and settles every clause, and checks against the current social security requirements that each compulsory term is present and unmodified… |
| Review a trust deed for amendment power, vesting and resettlement risk | Yellow | Extract amendment, appointor, vesting, perpetuity and variation clauses into a table, and list changes the client wants that may resettle or require… | Decide resettlement and variation validity yourself Confirm the current deed including all variations, not a front page |
| Prepare a trustee-resolution pack from the proposed distribution or decision | Yellow | Draft resolutions, a distribution minute and a checklist of deed requirements (who signs, who is excluded, streaming) from the instructions. | Check the trustee actually decides Do not use minutes that invent a meeting Check the deed's execution clause |
| Map control: appointor, guardian, trustee and default beneficiaries | Green | From the deed and variations, table who holds control now, on death, and on incapacity, with clause references. | Focus on control on death, the estate-planning point Confirm later deeds of variation and any separate appointor deed |
| Extract distribution and minute history from the trust records | Green | From minutes and accounts the lawyer has, table historical distributions, unpaid present entitlements and related-party loans, with document cites and gaps. | Read the deed; the accounts are not the deed Apply the legal consequences of unpaid entitlements and loans |
| Build the trust establishment and post-execution registration checklist | Green | Produce the establishment and registration checklist from the firm's validated establishment template, inserting the maximum vesting period available under… | Check the vesting date against the perpetuity period for the governing law actually chosen in the deed, confirm the settled sum was paid and the payment is… |
| Build the pre-30-June distribution deadline and deed-condition register | Green | Read the deed and each variation in sequence and extract into the register, with clause references, the resolution deadline, the required form of the… | Open each deed and variation and confirm the register reflects the operative clause after every amendment rather than the original, and decide for each… |
| Test the proposed trust distributions against the section 100A compliance zones | Red | Extract from the trust's accounts, resolutions, loan accounts and bank records every payment, loan, gift or benefit connected with each proposed entitlement,… | The lawyer decides whether each dealing is explained by a family or commercial objective, whether an agreement to benefit someone other than the beneficiary… |
| Reconcile unpaid present entitlements owing to a corporate beneficiary | Green | Build the schedule from the resolutions, financial statements and loan ledgers, dating each entitlement, each payment and each loan agreement, and flag every… | Check the schedule against the signed resolutions and the accounts, and determine for each year when the company had knowledge of an amount it could demand… |
| Map the family group before a distribution outside the usual beneficiaries | Yellow | Assemble the family tree, the lodged elections and the entity records into a draft group map and proposed-beneficiary list, working under the lawyer's… | Confirm the specified individual and the income year specified in the election as lodged, test each entity against the family group definition rather than… |
| Amend a discretionary trust deed to exclude foreign beneficiaries for surcharge purposes | Yellow | Assemble the deed chain and the proposed exclusion wording against the revenue office's stated requirements and the deed's amendment power, and work with the… | Check that the amendment power permits an irrevocable restriction on the class, that the wording prevents a foreign person from being a potential beneficiary… |
| Complete the transfers, duty and notifications after a change of trustee | Green | Produce the transfer, duty and notification schedule from the firm's validated template, listing each asset from the trust's asset register with the dealing… | Confirm the appointment was made in the manner the deed requires and by the person who holds the power, check that the concession relied on applies to this… |
| Prepare the court application to vary a trust or extend a vesting date | Red | Index the deed and every variation in order with clause references, list each member of the beneficiary class and each class that cannot consent for itself,… | Settle the application and the affidavit, decide the basis on which the court's power is engaged, decide who must be joined or separately represented, and… |
| Check a trustee decision for conflict and genuine consideration | Yellow | Assemble the deed's conditions on the power, the decision record and the benefit flows into a working table and, under the lawyer's direction, help draft the… | Decide whether the conflict is authorised by the deed, whether the trustee gave real and genuine consideration to the exercise of the discretion, and whether… |
| [Review a will a client drafted with ChatGPT](https://ailawframework.com/practice/trusts-and-estate-planning/review-a-will-a-client-drafted-with-chatgpt.md) | Red | Compare the AI-drafted will against formal-validity requirements and ambiguity risks. | Lawyer redrafts; AI wills often fail on execution and gifts that adeem or lapse. |
| [Draft a client warning on DIY AI wills](https://ailawframework.com/practice/trusts-and-estate-planning/draft-a-client-warning-on-diy-ai-wills.md) | Green | Draft a plain-language explainer of AI-will risks for the firm's clients. | Check against state succession Act formalities. |
| [Prepare a will-instructions questionnaire summary for the drafting lawyer](https://ailawframework.com/practice/trusts-and-estate-planning/prepare-a-will-instructions-questionnaire-summary-for-the-drafting-lawye.md) | Yellow | Turn questionnaire answers into a structured instruction sheet. | Lawyer confirms instructions directly with the testator (capacity and undue influence). |
| [Build an asset-and-ownership table for estate planning](https://ailawframework.com/practice/trusts-and-estate-planning/build-an-asset-and-ownership-table-for-estate-planning.md) | Yellow | Sort assets into estate, non-estate, trust and super categories from documents. | Verify ownership against titles and fund records. |
| [Summarise trust deed powers before advising on a distribution](https://ailawframework.com/practice/trusts-and-estate-planning/summarise-trust-deed-powers-before-advising-on-a-distribution.md) | Yellow | Extract trustee, appointor and distribution powers with clause references. | Lawyer reads the deed and all variations in full. |
| Draft a client-friendly explanation of trust structures | Green | Draft plain-English notes on discretionary, unit and testamentary trusts. | Lawyer checks tax and trust law accuracy. |
| Review an AI-generated DIY will brought in by a client | Yellow | Flag execution, capacity and gift-failure risks. | Lawyer advises; DIY AI wills carry known risks. |
| Extract trust deed powers into a trustee-powers table | Green | Tabulate vesting, amendment and distribution powers. | Verify against the deed. |

## Jurisdiction notes

### New Zealand

#### Core statutes

Wills Act 2007 and Administration Act 1969. Relationship-property contracting out under the Property (Relationships) Act 1976.

#### Retirement savings

KiwiSaver, not SIS superannuation.

#### Family provision

Family Protection Act 1955 and testamentary promises, not a state family-provision Act.

Sources:

- [Wills Act 2007](https://www.legislation.govt.nz/act/public/2007/36/en/latest/) (checked 2026-09-23)
- [NZLS: Making a will and estate administration](https://www.lawsociety.org.nz/for-the-public/common-legal-issues/making-a-will-and-estate-administration/) (checked 2026-09-23)
- [Property (Relationships) Act 1976](https://www.legislation.govt.nz/act/public/1976/166/en/latest/) (checked 2026-09-23)
- [Family Protection Act 1955](https://www.legislation.govt.nz/act/public/1955/88/en/latest/) (checked 2026-09-23)
- [KiwiSaver Act 2006](http://www.legislation.govt.nz/act/public/2006/0040/latest/DLM378372.html) (checked 2026-09-23)

### United States

Local name: Trusts and estate planning

#### State law

State law governs this work. Check the statutes, court rules and conduct rules of the state where the matter is. Do not import an Australian statute, form or court AI practice note.

#### Trusts

Trust codes, often a Uniform Trust Code enactment, are state law.

#### Tax

Tax overlays are federal (IRC). Circular 230 applies if you practise before the IRS.

Sources:

- [ABA Formal Opinion 512, Generative Artificial Intelligence Tools (29 July 2024)](https://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/ethics-opinions/aba-formal-opinion-512.pdf) (checked 2026-09-23)
- [IRS Office of Professional Responsibility, Issue 2026-19, Introductory Guidelines for Responsible AI Use in Federal Tax Practice](https://www.irs.gov/pub/opr-taxpros/issue-number-2026-19-introductory-guidelines-for-responsible-ai-use-in-federal-tax-practice.pdf) (checked 2026-09-23)

*Practice guidance for planning and review. Confirm current primary sources and the requirements of the actual matter. This is general information, not legal advice.*