Cascading Testamentary Trusts

What is a Cascading Testamentary Trust? 

 

Cascading Testamentary Discretionary Trusts (TDTs) refer to an estate planning structure whereby the assets of one TDT are transferred (or ‘cascade’) into one or more TDTs on the happening of a specific event.

For example, say TDT1 is established for the benefit of the surviving spouse and any children.

The terms of TDT1 could provide that when the surviving spouse dies, or on an earlier date nominated by the surviving spouse, the capital of TDT1 is to be distributed equally into TDT2 and TDT3.

TDT2 and TDT3, for instance could be established for the benefit of the original testator’s two children and their respective families.

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Testamentary Guardians of Minor Children


Have you considered who will look after your children under 18 upon your death?

A point of concern for parents making a will for the first time, or reviewing their will, is the appointment of a Testamentary Guardian for their children under 18.

A well-considered appointment of Testamentary Guardians can help avoid the distress of family disputes over children, should one or both parents die.

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International Wills

Estate Planning and WillsQueensland Parliament has recently moved to amend the Succession Bill 1981 (Qld) to enable a Uniform Law on the Form of an International Will (also known as Convention of International Wills) to take effect in Queensland. Australia is expected to sign the Convention of International Wills once the relevant Australian jurisdictions have amended their individual legislations.

Key Points of the International Wills

An international will is going to be valid in all jurisdictions or countries signatory to the convention regardless of:

  • where the will was made;
  • where the assets of the willmaker are located, and
  • the willmaker’s country of residence.

Main Principles of the International Wills

A valid international will must be:

  • in a written form;
  • signed by the willmaker;
  • made for one willmaker only;
  • witnessed by at least 3 individuals: 2 witnesses and 1 authorised person (in Australia, a solicitor or a public notary);
  • certified by an authorised person of its compliance with international will’s requirements;
  • acknowledged of its content by the willmaker;

Practical Implications of the International Wills in Queensland

Some of the effects to the Succession Bill 1981 (Qld) amendments relating to international wills:

  • international wills may be recognised as valid in Queensland courts;
  • a Queensland court may not have to examine the foreign countries’ laws to decide if the will has been lawfully executed;
  • individuals with assets or beneficiaries located in Australian and overseas jurisdictions will be able to maximise flexibility in their estate planning.

Limitations of the International Wills

It’s helpful to keep in mind that the Convention of International Wills is only binding in countries and jurisdictions who have signed the convention and enacted relevant legislation to give effect to it. Some countries have signed the convention but have yet to ratify it while many others have neither signed it nor ratified it.

Countries that have ratified the convention: Belgium, Bosnia-Herzegovina, Canada, Cyprus, Ecuador, France, Italy, Libya, Niger, Portugal, Slovenia and the former Yugoslavia.

Countries that have signed but not yet ratified the convention: Iran, Laos, the Russian Federation, Sierra Leone, the United Kingdom and the United States of America.