Print Page | Close Window

Annuling a Trust Will

Printed From: AussieLegal
Category: Wills, Probate, Letters of Administration
Forum Name: Wills, Power of Attorney, Probate, Letters of Administration
Forum Discription:
Printed Date: 18/January/2019 at 06:02

Topic: Annuling a Trust Will
Posted By: Dembrandt
Subject: Annuling a Trust Will
Date Posted: 31/January/2018 at 00:36
Can we as the benefactors and trustees immediately dissolve a trust will and inherit outright in the terms of a gift will?
A persuasive lawyer drew up a very complicated Trust Will for my mother (who had just lost her husband of 64 years) without fully explaining the terms to her (or us).

My mother already had a straight forward gift will but it had various grammatical errors - we were only there to correct it. At all times the lawyer stated that: at the time of my mother's death, we the beneficiaries would have a choice between accepting the trust or inheriting outright as in a gift will. Yet I cannot find anything in the document which indicates that we have this choice. It only states that the moment she dies the trusts are formed. I have written twice to the lawyer asking her to indicate where this choice is stated in the will. She ignores my requests. I am very worried by this as I will be very dependent on my inheritance due to a lifelong disability - but the trust will does not allow me to use any of my funds for my medical or other needs. We had no idea of any such restrictions at the time - my parents had the same gift will for some 40 years and now it is a mess. Thanks for any information.

Posted By: citizen-joe
Date Posted: 31/January/2018 at 01:18
What you are saying about having the option of accepting the new will or reverting to the old will is not correct. Unless there are clauses in the most recent will that permit you to receive your inheritance directly from the executor of the will, rather than having them paid into the trust that is established under the will, and then distributed according to the trust deed, it won't happen.

Usually a testator only has a trust established to handled their assets after their death, if they have cause for concern about the effects on a beneficiary, if that beneficiary were suddenly to receive a lump sum. If they have this concern and have voiced it to their solicitor he may suggest the establishment of a trust to administer the funds and distribute them to the beneficiary in a way that is going to assist them and not provide them with a means of self destructing.

Their could be other reasons for establishing a trust, eg to maximise taxation advantages or ensure the beneficiary is supported for the maximum period of time.

If you are unsure, see a lawyer who can properly explain the contents of the will and any reasons you are not sure about. Remember the deceased can, with certain restrictions, leave their assets to whomever they wish. Trying to get a relative to change their will to suit you, may well find you being left out of a future will. It is their money and they have the say about what is to happen to it.

Posted By: Dembrandt
Date Posted: 31/January/2018 at 02:22
Many thanks for your answer. No - my mother only wants her assets to be given to her only children – my brother and I to use as we want. She stated this very clearly and simply to the lawyer and still states this. (My mother has cognitive deficit and did not understand the terms of the trust.)
But the lawyer pushed the trust will in order to exclude the possibility of my brother’s wife benefiting (in the case of a divorce which is not foreseeable at this time). No other reason. But at all times she stated that we could (at the time of death which is when everything goes into trust) decide to distribute the properties directly to the beneficiaries and not the trust. I cannot find any clause allowing this – my brother and I are both beneficiaries and trustees. She also said that we could decide some time after inheriting to revoke the trust at any time - but also cannot find any clause allowing this either. It is all tied up for 4 generations. I felt that 9,000 dollars later this law firm could at least indicate to us where these provisions/clauses exist in the document.

Posted By: citizen-joe
Date Posted: 01/February/2018 at 22:26
It seems to me that your mothers understanding of the reasons and the powers that you will have is flawed. Noel Whittaker had an interesting article on this in today's paper. The trust will protect your brothers interests in the event of a marriage split. Your ability to take the capital from the trust at a later date will depend on the law and the wording of the trust deed.

See the solicitor to have it explained to you. I believe the solicitor is acting in your best interests, why should this not be so? He has nothing to gain.

Posted By: Dembrandt
Date Posted: 01/February/2018 at 23:28
In order to revoke a trust like this, say after 2 years following its formation, must there be a clause specifying the right to revoke or is there a standard that applies across the board?

Posted By: citizen-joe
Date Posted: 02/February/2018 at 19:31
Take a look at - this site

Again, talk to the solicitor who drew it up, to gain an understanding of both the type of trust and what powers you may have.

Posted By: Helpingafriend
Date Posted: 03/February/2018 at 00:49
What does the will say about distribution of income and capital and/or termination of the trust?

Posted By: Dembrandt
Date Posted: 03/February/2018 at 01:28
The will does not say anything about termination of the trust. It has been fixed for 4 generations - which makes no sense seeing it is not the crown jewels. This is why I asked if there is a general rule that applies to trusts that one inherits.
Distribution of income is to the beneficiaries.
Thanks so much for your interest.

Posted By: citizen-joe
Date Posted: 03/February/2018 at 04:08
The will does not say anything about termination of the trust.

You have asked about this several times, I posted a link to a site which, said.
If the trust deed contemplates termination, it is a straightforward procedure. However, if the trust deed is silent on revocating the trust, then its assets may be distributed to the beneficiaries. If neither of these options are possible, then you may consider approaching the courts for assistance noting that the court’s powers are relatively restricted regarding varying a trust. If you have any questions about terminating your trust, or need assistance drafting a clause in your trust need that address termination, get in touch with a lawyer

if the trust deed is silent on revocating the trust, then its assets may be distributed to the beneficiaries.
Note the sentence I BOLDED and the advice to contact a lawyer, which I also stated.

Posted By: Helpingafriend
Date Posted: 03/February/2018 at 12:32
I agree on seeking legal advice as to whether the Trustees can agree to wind up the trust.

Otherwise is there any reason that the majority of the assets of the trust can't be distributed to the beneficiaries now and the trust allowed to remain as an entity but with very little remaining assets?

Posted By: Dembrandt
Date Posted: 04/February/2018 at 01:07
The trust only comes into effect once my mother passes away. But it was a mistake and poorly judged in relation to the condition of the assets and our needs. These things happen in times of stress and grief.
Probably just emotional attachment as well as prohibitive stamp duty is what stops us from distributing the assets now. But it may be the best and most secure option.

Posted By: Dembrandt
Date Posted: 04/February/2018 at 01:08
I am sorry - I did not see the link.

Print Page | Close Window