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Executor Duties And Beneficiaries
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The will outlines executor duties, including asset distribution and trust management. Executors have discretionary powers to distribute assets, create trusts, and manage real property. Beneficiaries include the Primary Beneficiary, their descendants, certain relatives, and entities with their interest. Grandchildren could be included as beneficiaries under specific provisions. The actual distribution depends on the wills specifics and trustee decisions. Consult a legal professional for personalized advice.Full Conversation
can you summarise what it says
From this document, it seems you're asking about an executor's duties in a will. This will outlines:
- Executors dividing the estate based on specific calculations.
- Executors having discretionary powers to distribute assets, given the primary beneficiary is at least * and consents.
- Executors may hold a residence in trust with a right of occupation for the primary beneficiary.
- Executors can establish multiple trusts, with beneficiaries confined to those mentioned in the will.
Is there a specific part you'd like more information on?
- Executors dividing the estate based on specific calculations.
- Executors having discretionary powers to distribute assets, given the primary beneficiary is at least * and consents.
- Executors may hold a residence in trust with a right of occupation for the primary beneficiary.
- Executors can establish multiple trusts, with beneficiaries confined to those mentioned in the will.
Is there a specific part you'd like more information on?
More Restricted Testamentary Trusts
*.*
Option: to hold on any one or more trusts where the income and capital beneficiaries
are confined to some or any of the beneficiaries that would otherwise have been the
beneficiaries of the trust under this Will.
Split Fixed Testamentary Trusts
*.*
Option: to hold on one or more trusts where the distribution of the:
a)
income of the trust is fixed to the Primary Beneficiary and/or any other
beneficiaries that would otherwise have been the beneficiaries of the trust
under Part C of this Will, as named by my Executors with the consent of the
Primary Beneficiary; and
b)
distribution of the Capital of the trust is fixed in any differing proportions to the
Primary Beneficiary and/or any other beneficiaries that would otherwise have
been the beneficiaries of the trust under Part C of this Will, as named by my
Executors with the consent of the Primary Beneficiary (whether or not the
beneficiaries are named to be income beneficiaries).
Capital Reserved Non-fixed Testamentary Trusts or Life Interest
*.*
Option: to hold on one or more trusts with the Primary Beneficiary or any other person
nominated by the Primary Beneficiary as Primary Beneficiary and in respect of which
the:
a)
Capital is reserved for the fixed and absolute benefit of the Primary
Beneficiary or another beneficiary of the trust; and
b)
income beneficiaries of which are confined to all, some or any of the
beneficiaries that would otherwise have been the beneficiaries of the trust
under Part C of this Will; or
'maker)
It seems you're asking about the implications of different types of trusts mentioned in the will.
- More Restricted Testamentary Trusts (*.*): Executors have the option to create one or more trusts where both income and capital beneficiaries are limited to those mentioned in the will.
- Split Fixed Testamentary Trusts (*.*): Executors can establish one or more trusts where the income and capital distribution is fixed to the Primary Beneficiary and/or others mentioned in the will, with their consent.
- Capital Reserved Non-fixed Testamentary Trusts or Life Interest (*.*): Executors can establish one or more trusts where the capital is reserved for the benefit of the Primary Beneficiary or another beneficiary, and the income beneficiaries are limited to those mentioned in the will.
Does this help clarify these terms?
- More Restricted Testamentary Trusts (*.*): Executors have the option to create one or more trusts where both income and capital beneficiaries are limited to those mentioned in the will.
- Split Fixed Testamentary Trusts (*.*): Executors can establish one or more trusts where the income and capital distribution is fixed to the Primary Beneficiary and/or others mentioned in the will, with their consent.
- Capital Reserved Non-fixed Testamentary Trusts or Life Interest (*.*): Executors can establish one or more trusts where the capital is reserved for the benefit of the Primary Beneficiary or another beneficiary, and the income beneficiaries are limited to those mentioned in the will.
Does this help clarify these terms?
in any form of life interest.
Income Reserved Non-fixed Testamentary Trusts
*.*
Option: to hold on one or more trusts with the Primary Beneficiary or any other person
nominated by the Primary Beneficiary as Primary Beneficiary and in respect of which
the:
a)
income is reserved for the fixed and absolute benefit of the Primary
Beneficiary or another beneficiary of the trust; and
b)
capital beneficiaries of which are confined to all, some or any of the
beneficiaries that would otherwise have been the beneficiaries of the trust
under Part C of this Will.
*. Executors' Discretionary Powers Not To Use Testamentary Trusts
*.* If the person named as the Primary Beneficiary consents to its exercise, my
Executors, prior to the:
a)
commencement of any trust; or
b)
distribution of all or any part of the share of my Estate that is directed under
Part A of this Will;
shall have the discretionary powers to distribute the assets that would otherwise have
been held on trust to any one or more of the recipients in succeeding subclauses.
Power to Avoid or Dispense with Trust
*.*
Option: to distribute to the Primary Beneficiary or another beneficiary of the trust that
would otherwise have been established, in their personal capacity.
Distribution to Other Trust
*.*
Option: to distribute to any other trust, the income and capital beneficiaries of which
are confined to all, some or any of the beneficiaries that would otherwise have been
the beneficiaries of the trust under this Will.
PART C — ADMINISTRATIVE PROVISIONS
*.
Interpretation
In this Will:
*.* A reference to "clause", "subclause", "paragraph" or "subparagraph" in this Will is
intended to refer to and include provisions illustrated by the following:
" *.
Clause
*.*
Subclause
a)
Paragraph
i)
Subparagraph"
*.* Unless the contrary is expressly provided, a reference to the singular shall include the
plural and vice versa.
■
(Willmaker)
(Witness)
*
*.* While headings are used as a point of reference in this Will, they shall not be taken
into account in the interpretation of its clauses.
*.* If by reason of the inclusion of any word, description or provision in this Will, all or any
part of this Will would be invalid, then this Will is to be construed as if the word,
description or provision were not included in this Will.
*.* The exercise of the powers of my Executors and the trustees of any trust established
under this Will may not:
a)
affect the beneficial entitlement of any beneficiary to any amount allocated for,
or otherwise absolutely and irrevocably vested in, the beneficiary prior to the
date of the exercise;
b)
infringe any applicable law, such as, but not limited to the law against
perpetuities; or
c)
have the effect of resulting in any provision in Part A of this Will becoming
void.
*.* Unless expressly stated otherwise, references in this Will to any statute means a
statute of the Commonwealth of Australia or of its States or Territories and includes
any statutory amendment or re-enactment of a statute or any substitute statute.
*.
in any form of life interest.
Income Reserved Non-fixed Testamentary Trusts
*.*
Option: to hold on one or more trusts with the Primary Beneficiary or any other person
nominated by the Primary Beneficiary as Primary Beneficiary and in respect of which
the:
a)
income is reserved for the fixed and absolute benefit of the Primary
Beneficiary or another beneficiary of the trust; and
b)
capital beneficiaries of which are confined to all, some or any of the
beneficiaries that would otherwise have been the beneficiaries of the trust
under Part C of this Will.
*. Executors' Discretionary Powers Not To Use Testamentary Trusts
*.* If the person named as the Primary Beneficiary consents to its exercise, my
Executors, prior to the:
a)
commencement of any trust; or
b)
distribution of all or any part of the share of my Estate that is directed under
Part A of this Will;
shall have the discretionary powers to distribute the assets that would otherwise have
been held on trust to any one or more of the recipients in succeeding subclauses.
Power to Avoid or Dispense with Trust
*.*
Option: to distribute to the Primary Beneficiary or another beneficiary of the trust that
would otherwise have been established, in their personal capacity.
Distribution to Other Trust
*.*
Option: to distribute to any other trust, the income and capital beneficiaries of which
are confined to all, some or any of the beneficiaries that would otherwise have been
the beneficiaries of the trust under this Will.
PART C — ADMINISTRATIVE PROVISIONS
*.
Interpretation
In this Will:
*.* A reference to "clause", "subclause", "paragraph" or "subparagraph" in this Will is
intended to refer to and include provisions illustrated by the following:
" *.
Clause
*.*
Subclause
a)
Paragraph
i)
Subparagraph"
*.* Unless the contrary is expressly provided, a reference to the singular shall include the
plural and vice versa.
■
(Willmaker)
(Witness)
*
*.* While headings are used as a point of reference in this Will, they shall not be taken
into account in the interpretation of its clauses.
*.* If by reason of the inclusion of any word, description or provision in this Will, all or any
part of this Will would be invalid, then this Will is to be construed as if the word,
description or provision were not included in this Will.
*.* The exercise of the powers of my Executors and the trustees of any trust established
under this Will may not:
a)
affect the beneficial entitlement of any beneficiary to any amount allocated for,
or otherwise absolutely and irrevocably vested in, the beneficiary prior to the
date of the exercise;
b)
infringe any applicable law, such as, but not limited to the law against
perpetuities; or
c)
have the effect of resulting in any provision in Part A of this Will becoming
void.
*.* Unless expressly stated otherwise, references in this Will to any statute means a
statute of the Commonwealth of Australia or of its States or Territories and includes
any statutory amendment or re-enactment of a statute or any substitute statute.
*.
It appears you're asking about additional sections of the will, focusing on the powers and responsibilities of the executors.
- Income Reserved Non-fixed Testamentary Trusts (*.*): Executors can create one or more trusts where income is reserved for the Primary Beneficiary or another beneficiary, and capital beneficiaries are those mentioned in the will.
- Executors' Discretionary Powers Not To Use Testamentary Trusts (*.*): Executors can choose not to use trusts and distribute assets directly to beneficiaries, given consent from the Primary Beneficiary.
- Power to Avoid or Dispense with Trust (*.*): Executors have the option to distribute directly to the Primary Beneficiary or another beneficiary.
- Distribution to Other Trust (*.*): Executors can distribute to another trust, where beneficiaries are those mentioned in the will.
Does this clarify these sections in the will?
- Income Reserved Non-fixed Testamentary Trusts (*.*): Executors can create one or more trusts where income is reserved for the Primary Beneficiary or another beneficiary, and capital beneficiaries are those mentioned in the will.
- Executors' Discretionary Powers Not To Use Testamentary Trusts (*.*): Executors can choose not to use trusts and distribute assets directly to beneficiaries, given consent from the Primary Beneficiary.
- Power to Avoid or Dispense with Trust (*.*): Executors have the option to distribute directly to the Primary Beneficiary or another beneficiary.
- Distribution to Other Trust (*.*): Executors can distribute to another trust, where beneficiaries are those mentioned in the will.
Does this clarify these sections in the will?
Terms of Beneficiary Controlled Testamentary Trusts
*.* In respect of each of the trusts established under this Will that nominate a person to
be the Primary Beneficiary (the "Beneficiary Controlled Testamentary Trust"), I
declare that the following terms shall apply:
Name of Trust
*.* The Primary Beneficiary of a trust created under this Will shall have the power to
name the trust.
Beneficiaries
*.* The beneficiaries of the Beneficiary Controlled Testamentary Trust shall be:
a)
the Primary Beneficiary;
b)
the Children and remoter Descendants of the Primary Beneficiary;
c)
any person who is a Descendant of a grandparent of either the Primary
Beneficiary of the trust or a Domestic Partner of the Primary Beneficiary;
d)
the Domestic Partner and Children of any of the persons specified in the
preceding paragraph;
e)
the entities (including companies and trusts) in which any of the above
beneficiaries are a director, or directly or indirectly have an absolute,
contingent or expectant interest;
f)
charitable or religious funds or institutions; and
the biological parents of the Primary Beneficiary
g)
provided that the Trustee may:
h)
elect to temporarily or permanently exclude a beneficiary from all or any part
of the trust fund;
This section discusses the terms of Beneficiary Controlled Testamentary Trusts (*.*).
- The Primary Beneficiary has the power to name the trust (*.*).
- The beneficiaries of the trust include: the Primary Beneficiary, their descendants, certain relatives and their descendants, entities in which the above beneficiaries have an interest, charitable or religious institutions, and the biological parents of the Primary Beneficiary (*.*).
- It also allows the Trustee to temporarily or permanently exclude a beneficiary from all or part of the trust fund (*.*.h).
Do you have a specific question about these terms?
- The Primary Beneficiary has the power to name the trust (*.*).
- The beneficiaries of the trust include: the Primary Beneficiary, their descendants, certain relatives and their descendants, entities in which the above beneficiaries have an interest, charitable or religious institutions, and the biological parents of the Primary Beneficiary (*.*).
- It also allows the Trustee to temporarily or permanently exclude a beneficiary from all or part of the trust fund (*.*.h).
Do you have a specific question about these terms?
if you take all of the parts of the will posted above, is there any indication that grandchildren of the deceased are entitled to a share of the estate?
Based on the information provided, the will does include provisions that could potentially include grandchildren:
- In Section *.*(b), it refers to "Children and remoter Descendants of the Primary Beneficiary". This could include grandchildren.
- In Section *.*(c), it mentions "any person who is a Descendant of a grandparent of either the Primary Beneficiary of the trust or a Domestic Partner of the Primary Beneficiary". This could also refer to grandchildren.
However, the actual distribution would depend on the specifics of the will, including who is designated as the Primary Beneficiary and any specific instructions or conditions in the will.
- In Section *.*(b), it refers to "Children and remoter Descendants of the Primary Beneficiary". This could include grandchildren.
- In Section *.*(c), it mentions "any person who is a Descendant of a grandparent of either the Primary Beneficiary of the trust or a Domestic Partner of the Primary Beneficiary". This could also refer to grandchildren.
However, the actual distribution would depend on the specifics of the will, including who is designated as the Primary Beneficiary and any specific instructions or conditions in the will.
elect to temporarily or permanently refrain from distributing or providing
income, Capital or other benefits in respect to all or any part of the trust fund,
to or for the benefit of a beneficiary; or
need to take note of any family trust or other election that may be made.
Explanation of "Beneficiary"
*.* A person or entity shall be:
a)
comprehended to be a beneficiary of the Beneficiary Controlled Testamentary
b)
Trust notwithstanding that the person may be born, incorporated or otherwise
come into existence or comply with the relevant description after the
establishment (but not later than the date of vesting) of the trust;
included as a beneficiary only if their inclusion does not invalidate the creation
of the trust or cause resettlement of the trust.
Right of Occupation with Respect to Real Property
*.* With respect to all real property forming part of a Beneficiary Controlled Testamentary
Trust , the Trustee of such trust shall hold such property on trust for sale, and subject
to all the powers in Part C of this Will, including the power to postpone such sale,
without any liability for any loss as a result of such postponement, shall deal with it in
accordance with the remainder of this subclause and subject to subclause *.*:
a)
the Primary Beneficiary shall have a personal right of occupation in respect of
each property for as long as they wish for their lifetime;
b)
during the term of such right of occupation, the property may not be sold
without the prior consent of the Primary Beneficiary;
c)
at the written request of the Primary Beneficiary, the property may be sold and
the sale proceeds used to acquire a substituted residence to which the
provisions of this subclause may apply.
Calculation of Net Income
*.* The net income of the Beneficiary Controlled Testamentary Trust shall mean, unless
the Trustee otherwise determines, the net income of the fund as defined in subsection
*(*) of the Income Tax Assessment Act * (Cth)
Allocation of Net Income or Unreserved Capital
*.* The Trustee shall allocate or accumulate the net income or the Unreserved Capital of
the Beneficiary Controlled Testamentary Trust as follows:
a)
the net income or Unreserved Capital (or any category of the net income or
Unreserved Capital) of the trust in each year may be:
paid, allocated to or applied for the benefit of such of the beneficiaries
that the Trustee in its absolute discretion selects from time to time; or
(in the case of the net income) may be accumulated as an addition to
the Unreserved Capital of the trust;
Based on the additional excerpts from the will, grandchildren could potentially receive a share of the estate in certain scenarios:
- If the grandchildren are Descendants of the Primary Beneficiary as referred to in Section *.*(b).
- If the Trustee, at their discretion, elects to distribute part of the net income or Unreserved Capital of the Beneficiary Controlled Testamentary Trust to the grandchildren as part of the beneficiaries as per Section *.*.
Again, the actual distribution would depend on the specifics of the will and the decisions made by the trustee.
- If the grandchildren are Descendants of the Primary Beneficiary as referred to in Section *.*(b).
- If the Trustee, at their discretion, elects to distribute part of the net income or Unreserved Capital of the Beneficiary Controlled Testamentary Trust to the grandchildren as part of the beneficiaries as per Section *.*.
Again, the actual distribution would depend on the specifics of the will and the decisions made by the trustee.
at any time when the Trustee has been appointed by virtue of paragraph (d) of
the subclause headed "Appointment and Removal of Trustee" below, the
Trustee shall either:
accumulate all or any part of the trust net income; or
pay, allocate or apply all or any part of the net income to or for the
benefit of such beneficiaries as the Trustee considers is in the best
interests of the Primary Beneficiary or all of the Specified Beneficiaries;
and
where the Trustee fails to exercise its discretionary powers with respect to any
income in any given year, such income shall be deemed to be accumulated.
Appointment and Resignation of Appointor
*.* The Appointor of the Beneficiary Controlled Testamentary Trust shall be determined
as follows:
a)
the Primary Beneficiary, shall be the initial Appointor or Appointors, and shall
have the power to nominate any person or persons or company to act together
or in place of the initial Appointor, and may place such conditions or
restrictions on such nomination (and may make such nomination revocable or
irrevocable) by any notice in writing to the Trustee, or by Will;
b)
in the case of more than one Appointor, if the nomination is otherwise silent,
they shall act jointly;
c)
a successive Appointor, if the nomination is otherwise silent, shall also have
the power to nominate a successor or alternate Appointor as if they were the
initial Appointor;
d)
the Appointor or any person nominated or appointed to become the Appointor
either presently or at some subsequent time, may by notice in writing given to
the Trustee of the Beneficiary Controlled Testamentary Trust, resign or
renounce such office and such resignation or renunciation shall take effect
irrevocably upon such notice being given;
Appointment and Removal of Trustee
*.* The Trustee of the Beneficiary Controlled Testamentary Trust shall be appointed or
removed as follows:
a)
subject to paragraph (d) of this subclause, the Primary Beneficiary, or a
person (including a company) nominated by the Primary Beneficiary, shall be
the initial Trustee or Trustees;
b)
the Appointor (other than an Ineligible Person) may exercise the power to
appoint such other person as he, she or they choose to be an additional or
replacement Trustee and may subsequently remove the person as a, or the,
Trustee;
c)
any Trustee, not being the only Trustee, may resign its office by notice in
writing given to the other Trustees and such resignation shall take effect upon
such notice being given;
From the additional information provided, it appears you're asking about the roles of the trustee and appointor in a Beneficiary Controlled Testamentary Trust.
- The trustee can accumulate or distribute the trust net income as they deem best for the Primary Beneficiary or all of the Specified Beneficiaries (*.*).
- The Primary Beneficiary is the initial Appointor and can nominate others to act in their place (*.*).
- The Appointor can appoint or remove the Trustee, and a Trustee can resign (*.*).
Does this clarify these roles and how they might impact the distribution of the estate to grandchildren?
- The trustee can accumulate or distribute the trust net income as they deem best for the Primary Beneficiary or all of the Specified Beneficiaries (*.*).
- The Primary Beneficiary is the initial Appointor and can nominate others to act in their place (*.*).
- The Appointor can appoint or remove the Trustee, and a Trustee can resign (*.*).
Does this clarify these roles and how they might impact the distribution of the estate to grandchildren?
are the only trustees and beneficiaries the deceased two daughters (Janet and Sarah) or is anyone else included like grandchildren
Based on the provided excerpts from the will, it appears that the beneficiaries might extend to include the grandchildren:
- Section *.*(b) refers to "Children and remoter Descendants of the Primary Beneficiary," which could include grandchildren.
- Section *.*(c) mentions "any person who is a Descendant of a grandparent of either the Primary Beneficiary of the trust or a Domestic Partner of the Primary Beneficiary". This could also refer to grandchildren.
- However, the actual distribution is at the discretion of the trustees as per Sections *.* and *.*.
Please consult a legal professional to confirm these interpretations.
- Section *.*(b) refers to "Children and remoter Descendants of the Primary Beneficiary," which could include grandchildren.
- Section *.*(c) mentions "any person who is a Descendant of a grandparent of either the Primary Beneficiary of the trust or a Domestic Partner of the Primary Beneficiary". This could also refer to grandchildren.
- However, the actual distribution is at the discretion of the trustees as per Sections *.* and *.*.
Please consult a legal professional to confirm these interpretations.