---
title: "Testamentary discretionary trust clauses for a will"
url: "https://ailawframework.com/precedents/trusts-and-estate-planning/testamentary-trust-clauses"
type: "precedent"
site: "AI Law Framework"
id: "a19-testamentary-trust-clauses"
area_id: "A19"
kind: "clause"
ai_level: "yellow"
version: 1
law_stated_as_at: "2026-10-17"
---

# 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.

Canonical page: https://ailawframework.com/precedents/trusts-and-estate-planning/testamentary-trust-clauses  
Law stated as at: 2026-10-17

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

## Key facts

- Kind: Clause. Wording to drop into a longer document.
- Practice area: [Trusts & Estate Planning](https://ailawframework.com/precedents/trusts-and-estate-planning.md)
- Jurisdictions: Australia, New South Wales
- AI level: Yellow. AI can help in set ways. A lawyer checks specific points before use.
- Law stated as at: 2026-10-17
- Status: Maintained. Checked on 2026-10-17 against the 4 authorities it cites, for Australia and New South Wales.

## 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

## Authorities

- [Income Tax Assessment Act 1936 (Cth) s 102AG(2)(a) and (2AA)](https://www.legislation.gov.au/C1936A00027/latest/text)
- [Income Tax Assessment Act 1936 (Cth) Pt III Div 6](https://www.legislation.gov.au/C1936A00027/latest/text)
- [Perpetuities Act 1984 (NSW) s 7](https://legislation.nsw.gov.au/view/whole/html/inforce/current/act-1984-043)
- [Trustee Act 1925 (NSW)](https://legislation.nsw.gov.au/view/whole/html/inforce/current/act-1925-014)

## Full text and drafting notes

The full text and the drafting notes are not part of this public page. Signed-in firm accounts can read them at https://ailawframework.com/precedents/trusts-and-estate-planning/testamentary-trust-clauses and through the signed-in MCP connector https://ailawframework.com/mcp/firm.

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