Clause · Trusts & Estate Planning

Testamentary discretionary trust clauses for a will

Original clauses to insert in a will creating a discretionary testamentary trust for each primary beneficiary, with control, vesting, protective and record-keeping provisions that support the excepted trust income rules.

Kind
Clause. Wording to drop into a longer document.
Where it applies
Australia, New South Wales
AI use
Yellow AI can help in set ways. A lawyer checks specific points before use.
Law stated as at
17 October 2026
Status
Maintained. Checked against the cited sources on 17 October 2026.
Version
1
Source
Written for this library

When to use it

Use when instructions are to leave a share of the estate on a discretionary testamentary trust for a child or other primary beneficiary. Do not use for a special disability trust, a protective trust for a beneficiary who lacks capacity, or where the beneficiary should take outright.

How AI may be used

AI may produce first-draft clauses from the firm's precedent and the instruction sheet, and check them against the rest of the will. The structure, control and beneficiary choices, and the tax and family law effect, are the lawyer's responsibility.

AI may

  • Insert the instructed names, roles and shares into the clauses and check defined terms against the rest of the will
  • Produce a control table showing trustee, appointor and successor for each trust
  • Flag clauses that conflict with gifts elsewhere in the will

AI must not

  • Must not decide who controls each trust or who the beneficiaries are
  • Must not advise the will-maker on tax or family law outcomes
  • Must not prepare the will for signing without the lawyer reviewing every clause and the execution arrangements

The lawyer checks

  • Instructions were taken from the will-maker personally and capacity and undue influence risks considered
  • Control provisions match instructions and avoid conflict between siblings
  • The record-keeping clause supports the excepted trust income rule for estate-sourced property
  • Execution meets the formal requirements of the governing jurisdiction

Method: how the Green, Yellow and Red levels are decided. This is guidance for planning, not legal advice.

Authorities

Read the full text

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