2.               Executors, trustees and primary beneficiaries should seek legal and financial advice

2.1.          My will has been drafted to complement the plan and structure of my estate and financial affairs, and various and potentially substantial benefits are available to those of my beneficiaries who choose to take their inheritance via testamentary discretionary trusts created by this will. It is a complex document. I therefore urge, but I do not require, that before my executors decide how to administer my estate, and before a primary beneficiary makes a decision on the most appropriate way to take her or his inheritance, my executors, trustees and each primary beneficiary investigate the benefits offered by this will in the light of appropriate professional legal, taxation and financial advisory advice.

2.2.          I note the Interpretation clause near the end of this will, and I note the definition of Preservation age among the definitions.

3.              Presumption of survivorship

3.1.          Where:

(a)             one or more persons have died;

(b)             a person has died and one or more deaths are presumed; or

(c)             two or more deaths are presumed; and

(d)             the order of deaths, whether proved or presumed, is uncertain;

this will is to be construed as if the deaths, whether proved or presumed, had taken place in the following manner: first, the oldest; then, after a period of 1 day, the second oldest; then, after a period of 1 day, the third oldest; and so on to the youngest.

4.               Exclusion of requirement that beneficiaries survive the testator by 30 days

4.1.          No beneficiary is required to survive me by 30 days or any other period in order to take a benefit under my will, and this statement expresses a contrary intention for the purposes of statutory provisions which impose a general requirement that beneficiaries survive me for 30 days or any other period to inherit.

5.               Power to disclaim

5.1.          A person may disclaim an interest under this will or its trusts in whole or in part.

I am married to {spouseDetails[1]} , date of birth {spouseDetails[3]}, of {spouseDetails[2]} referred in this will as 'my spouse'.

In this Will the word 'my child' refers to:

{nameOf238[1]}, date of birth {nameOf238[2]}, of {nameOf238[3]}.

In this Will the word 'my children' refers to:

1. {nameOf238[1]}, date of birth {nameOf238[2]}, of {nameOf238[3]},

and

2. {typeA239[1]}, date of birth {typeA239[2]}, of {typeA239[3]}.

In this Will the word 'my children' refers to:

1. {nameOf238[1]}, date of birth {nameOf238[2]}, of {nameOf238[3]},

and

2. {typeA239[1]}, date of birth {typeA239[2]}, of {typeA239[3]},

and

3. {nameOf242[1]}, date of birth {nameOf242[2]}, of {nameOf242[3]}.

In this Will the word 'my children' refers to:

1. {nameOf238[1]}, date of birth {nameOf238[2]}, of {nameOf238[3]},

and

2. {typeA239[1]}, date of birth {typeA239[2]}, of {typeA239[3]},

and

3. {nameOf242[1]}, date of birth {nameOf242[2]}, of {nameOf242[3]},

and

4. {nameOf243[1]}, date of birth {nameOf243[2]}, of {nameOf243[3]}.

In this Will the word 'my children' refers to:

1. {nameOf238[1]}, date of birth {nameOf238[2]}, of {nameOf238[3]},

and

2. {typeA239[1]}, date of birth {typeA239[2]}, of {typeA239[3]},

and

3. {nameOf242[1]}, date of birth {nameOf242[2]}, of {nameOf242[3]},

and

4. {nameOf243[1]}, date of birth {nameOf243[2]}, of {nameOf243[3]},

and

5. {nameOf244[1]}, date of birth {nameOf244[2]}, of {nameOf244[3]}.

6. Schedules in my will

7. Appointment of Executors

I APPOINT as my Executor and Trustee my spouse, {spouseDetails[1]}.

If my spouse refuses or is unable to act as my executor and trustee, I APPOINT the persons mentioned in this will as my executor and trustee.

7. Appointment of Executor and Trustee

I, {testatorsname}
of address at {testatorsAddress}
(“Testator”)

appoint as my executor
{detailsOf250[1]}
of
{detailsOf250[2]}

to be my Executor and Trustee ('Executor and Trustee').

7. Appointment of Executor and Trustee

I, {testatorsname}
of address at {testatorsAddress}
(“Testator”)

appoint as my executor
{detailsOf250[1]}
of
{detailsOf250[2]}

and also appoint as my executor

{detailsOf252[1]}

of

{detailsOf252[2]}

to be my Executor and Trustee ('Executor and Trustee').

{detailsOf252[3]} 

8. Creation of Trust

8.1.          I create a testamentary discretionary trust.

8.2.          The name of this trust is ‘the {spouseDetails[1]} testamentary discretionary trust’ (in this clause and in Schedule 3 ‘the trust’).

8.3.          The primary beneficiary of the trust is {spouseDetails[1]} (the ‘primary beneficiary’).

8.4.          The following are defined in Schedule 3:

(a)             The trustees of the trust;

(b)             The property of the trust;

(c)             The potential beneficiaries of the trust;

8.5.          The following are set out in Schedule 3:

(a)             The appointment of the trustees of the trust;

(b)             The primary purposes of the trust; and

(c)             The provisions governing the trust.

8.6.          The following are set out in Schedule 4: in relation to the my executors: conflicts of interest, priorities, duties and powers; in relation to my will as a whole: interpretation of particular terms.

8. Creation of Trust - Named beneficiary

8.1.          I create a testamentary discretionary trust.

8.2.          The name of this trust is ‘the {detailsOf[1]} testamentary discretionary trust’ (in this clause and in Schedule 3 ‘the trust’).

8.3.          The primary beneficiary of the trust is {detailsOf[1]} (the ‘primary beneficiary’).

8.4.          The following are defined in Schedule 3:

(a)             The trustees of the trust;

(b)             The property of the trust;

(c)             The potential beneficiaries of the trust;

8.5.          The following are set out in Schedule 3:

(a)             The appointment of the trustees of the trust;

(b)             The primary purposes of the trust; and

(c)             The provisions governing the trust.

8.6.          The following are set out in Schedule 4: in relation to the my executors: conflicts of interest, priorities, duties and powers; in relation to my will as a whole: interpretation of particular terms.

8. Creation of Trust - Residue of estate as a gift

8.1.          I create a testamentary discretionary trust to give the residue of my estate.

8.2.          The name of this trust is ‘the {detailsOf232[1]} testamentary discretionary trust’ (in this clause and in Schedule 3 ‘the trust’).

8.3.          The primary beneficiary of the trust is {detailsOf232[1]} of {detailsOf232[2]} (the ‘primary beneficiary’).

8.4.          The following are defined in Schedule 3:

(a)             The trustees of the trust;

(b)             The property of the trust;

(c)             The potential beneficiaries of the trust;

8.5.          The following are set out in Schedule 3:

(a)             The appointment of the trustees of the trust;

(b)             The primary purposes of the trust; and

(c)             The provisions governing the trust.

8.6.          The following are set out in Schedule 4: in relation to the my executors: conflicts of interest, priorities, duties and powers; in relation to my will as a whole: interpretation of particular terms.

8.7 (a) If the gift under this clause cannot take effect completely or at all, to the extent that it cannot take effect to the nominated person or charitable organisation or organisations in Australia which my executors in their discretion consider most nearly fulfill the objects i intend to benefit on the share or shares my executors think fit;

(b) the receipt of the treasurer, secretary or public officer for the time being of a beneficiary under this provision is a sufficient discharge to my executors in respect of a gift to that beneficiary.

9.               Disposition of my estate

9.1.          My executors must transfer my estate(‘my estate’ as defined in Schedule 4 to include my residuary estate) to the trustee or trustees of the trust created in this schedule, but if my spouse or the named beneficiary, instructs my executors in writing to transfer all or some of it to her or him absolutely, or deal with it in some other way, my executors must do so.

End of Schedule 1

10. Appointment of Executors and Trustees

I,   {testatorsname}                       
of address at      {testatorsAddress}             
(“Testator”)

 
appoint as my executor
{name172}
 of
{address173}       

to be my Executor and Trustee ('Executor and Trustee').

10.2 ‘My executors’ means the persons named or referred to in the previous subclauses of this clause while acting, and my personal representatives and trustees for the time being, and includes persons who are trustees in accordance with the following subclause.

10.3 My executors are also trustees in respect of property in my estate which has not been transferred to my trustees as defined in Schedule 3.

10. Appointment of Executors and Trustees

I,    {testatorsname}                 
of address at   {testatorsAddress}                
(“Testator”)

appoint as my executor
{name172} 
of  
{address173}     

and also appoint as my executor
{name174}         
of  
{address175}                

to be my executor and trustee ('Executors and Trustees').

10.2 ‘My executors’ means the persons named or referred to in the previous subclauses of this clause while acting, and my personal representatives and trustees for the time being, and includes persons who are trustees in accordance with the following subclause.

10.3 My executors are also trustees in respect of property in my estate which has not been transferred to my trustees as defined in Schedule 3.

10.4 Appointment of Guardians of my minor children

If my spouse does not survive me, I appoint:
1. {detailsOf248[1]} of {detailsOf248[2]},

and

2. {detailsOf248[3]} of {detailsOf248[4]}

as guardians of minor children, on a jointly and severally basis ('Guardians').

10. 5 If either of the guardians dies in my lifetime or refuses or is unable for any cause or reason to act as guardian of minor children, then I appoint the other person on a individual basis to be the legal guardian of my minor children.

11.               Creation of trust for my children

11.1.          I create separate a testamentary discretionary trust for the primary benefit of each of my children mentioned in this will who survives me, whether born before or after the making of this will.

11.2.          The name of each trust must contain the words ‘testamentary discretionary trust for’ and the full name of the particular child for whose primary benefit that trust is created (in Schedule 3 ‘the trust’).

11.3.          The primary beneficiary of each trust is the child of mine for whom the trust is created and named in subclauses 11.1 and 11.2.

11.4.          The following are defined in Schedule 3:

(a)             The trustees of each trust;

(b)             The property of each trust;

(c)             The potential beneficiaries of each trust;

11.5.          The following are set out in Schedule 3:

(a)             The appointment of the trustees of each trust;

(b)             The primary purposes of each trust; and

(c)             The provisions governing each trust.

11.6.          The following are set out in Schedule 4: in relation to the my executors: conflicts of interest, priorities, duties and powers; in relation to my will as a whole: interpretation of particular terms.

12.               Disposition of my estate primarily for my children

12.1.          Subject to subclause 12.2, my executors must divide my estate (‘my estate’) is defined in Schedule 4 to include my residuary estate) into parts as follows: one part for each for my children, and in this subclause ‘my children’ means those of my children who survive me; and those of my children who have already died or die before me but leave a child or children who survives or survive me.

12.2.          The following provisions apply to those parts:

(a)             Each of those parts is referred to as an ‘allocated part’; and

(b)             Subject to the Equalisation of benefits clause in this schedule, the allocated parts must be equal.

12.3.          My executors must transfer each allocated part to the trustee or trustees of the respective trust created for each of my children who survives me; but if any child having attained the preservation age instructs my executors in writing to transfer all or some of it to such child absolutely, or deal with it in some other way, my executors must do so.

13.               Allocated part to be divided into third generation parts for children of predeceased child

13.1.          If a child of mine has already died or does not survive me (my ‘predeceased child’), leaving a child or children who survives me the following provisions apply.

13.2.          My executors must divide the allocated part that would otherwise have been transferred to the trustee or trustees of the trust created for the primary benefit of my predeceased child had that child survived me, into as many parts as there are children of that predeceased child.

13.3.          Each such part is referred to as a ‘third generation part’.

13.4.          Subject to subclause 13.5 of this clause the third generation parts must be equal.

13.5.          The third generation parts my be unequal:

(a)             Where there is more than one predeceased child of mine who leaves children who survive me, and the inequality arises from the fact that the number of children left by one predeceased child is different from the number left by another predeceased child; and

(b)             Where the provisions of the Equalisation of benefits clause in this schedule are applied.

14.               Creation of trust for child of predeceased child

14.1.          I create a separate testamentary discretionary trust for the primary benefit of each child respectively, who is a child of a predeceased child of mine.

14.2.          The name of each trust must contain the words ‘testamentary discretionary trust for’ and the full name of the particular child of the predeceased child for whose primary benefit that trust is created (in Schedule 3 ‘the trust’).

14.3.          The primary beneficiary of each trust is the person for whom the trust is created and named in subclauses 14.1 and 14.2.

14.4.          The following are defined in Schedule 3:

(a)             The trustees of each trust;

(b)             The property of each trust;

(c)             The potential beneficiaries of each trust;

14.5.          The following are set out in Schedule 3:

(a)             The appointment of the trustees of each trust;

(b)             The primary purposes of each trust; and

(c)             The provisions governing each trust.

14.6.          The following are set out in Schedule 4: in relation to the my executors: conflicts of interest, priorities, duties and powers; in relation to my will as a whole: interpretation of particular terms.

15.               Disposition of third generation parts for child of predeceased child

15.1.          My executors must transfer each third generation part to the trustee or trustees of the respective trust created for a child of my predeceased child, but if, before the relevant trust has commenced, any such child of my predeceased child has attained or attains the preservation age, and instructs my executors in writing to transfer all or some of such third generation part to the child absolutely, or deal with it in some other way, my executors must do so.

16.               Disposition if I die leaving no surviving person entitled to be a primary beneficiary

16.1.          If I die leaving no person surviving me and entitled to be a primary beneficiary of a trust created under the preceding clauses, my executors hold my estate to: {whatHappens[1]} of {whatHappens[2]}.

17.               Equalisation of benefits

17.1.          In calculating, in accordance with this schedule, the share of my estate which a child or grandchild of mine who is receiving a share of my estate as primary beneficiary is to receive:

(a)             I express the wish that my executors take into account in achieving overall equality and proportionality property, benefits and liabilities which are not strictly part of my estate, and

(b)             I authorize my executors to adjust the shares of my estate for allocation to those children and grandchildren accordingly, being guided by what is possible, reasonable, fair and appropriate.

17.2.          Examples of property, benefits and liabilities which my executors may take into account include:

(a)             Superannuation and life insurance entitlements, proceeds or benefits;

(b)             Interests in the capital, liabilities or the trustee of a trust in which I have an interest or power; and

(c)             Taxes, duties or expenses resulting from my death.

End of Schedule 2

Schedule 3

Provisions governing each separate trust created by this will. This schedule applies in any event.

18.               Application of the provisions in this schedule

18.1.          The provisions in this schedule apply to each testamentary discretionary trust created by this will.

19.               The property of the trust

19.1.          The property of the trust (‘the fund’) includes:

(a)             Property which my executors transfer to my trustees as trustees;

(b)             Income or property added or accumulated to the fund from time to time; and

(c)             The proceeds of any loan taken out by my trustees on behalf of the trust.

20.               Trustees of the trust: definition and appointment

20.1.          The trustees of this trust at any time are those of the following who have not at that time ceased to b trustees:

(a)             If the primary beneficiary has attained the preservation age:

(i)              The trustee or trustees whom the primary beneficiary in her or his discretion appoints in writing in accordance with the provisions of this will, and the primary beneficiary may appoint herself or himself some trustee; or

(ii)             The trustee or trustees appointed by the primary beneficiary’s guardian or legal personal representative of the primary beneficiary is under a legal disability or lacks legal capacity or was under the preservation age when the appointment was made; and

(b)             If the primary beneficiary has not attained the preservation age:

(i)              The trustee or trustees whom my executors in their discretion appoint;

(ii)             If my executors are unable to appoint a trustee, the trustee or trustees appointed by the primary beneficiary’s legal guardian; or

(iii)            The trustee or trustee’s appointed by the court.

20.2.          If no trustee is appointed under subclause 20.1, my executors must appoint a trustee or trustees (who may be one or more of the executors) for the trust, and if my executors do not do so, then application must be made to the court for a trustee to be appointed.

20.3.          The trustees appointed under my will may be or include a professional trustee or professional trustees.

20.4.          In this schedule ‘my trustees’ means the person who is trustee or the persons who are trustees under this clause.

21.               Trustees: conflicts of interest

21.1.          Subject to the provisions on the clause Powers of my trustees, all powers and discretions conferred upon a trustee by this will or by law, may be exercised without obtaining independent legal advice or an order of court, and not withstanding that the trustee, or any person being a director or shareholder of a corporate trustee, has or may have a direct, indirect, or personal interest, whether as shareholder, director, member, or partner of any company or partnership, or otherwise, in the manner or result of exercising such power or discretion, or may benefit directly or indirectly as a result of the exercise of any such power or discretion, and notwithstanding that the trustee for the time being is the sole trustee of the trust.

22.               Automatic disqualification of ineligible trustee

22.1.          Subject to subparagraph 22.6, each of the following is an ‘ineligible trustee’:

(a)             If an individual meets one or more of the criteria in subclause 22.2: the individual; and

(b)             If an individual who is a beneficiary of this trust and who meets one of more of the criteria in subclause 22.2 is  a director or or holds a controlling interest in a company: the company.

22.2.          The criteria referred to in subclause 22.1 are:

(a)             The individual is married or has been living with a partner in a marriage-like relationship with a person of the same sex or different sex (howsoever described) and begins to live separately and apart from her or his spouse or partner in a manner that constitutes a separation for the purposes of a law of the Commonwealth or a law of a state or territory, and has not settled, by way of court order or financial agreement, the financial claims or rights arising from the relationship of both the individual and her or his spouse or partner; or

(b)             The individual is the subject of a declaration by a board or tribunal governing the appointment of guardians and administrators under Commonwealth, state, territory law, made on the grounds of disability, infirmity, or lack of legal capacity, or the individual’s treating doctor attests that the individual is unable to understand the nature or effect of the individual’s own decisions, or is no longer able to communicate her or his decisions; or

(c)             The individual us unable to pay debts as and when they fall due, or is or becomes an undischarged bankrupt, is in liquidation, receivership or administration, or is unable in law to act or continue to act as a trustee.

22.3.          Where a person (and in subclauses 22.3, 22.4, 22.5 and 22.6 ‘person’ includes company) is or becomes an ineligible trustee:

(a)             That person may not be appointed as a trustee;

(b)             If that person has been appointed as trustee, that appointment is terminated by operation of this clause and the person is removed as trustee;

(c)             If that person holds a power of appointment, that power is terminated by operation of this clause, and that person may no longer exercise that power to appoint or remove a trustee;

(d)             If that person was the sole trustee, the trustee or trustees is or are:

(i)              The person or persons whom my executor or executors (excluding an ineligible trustee who is one of my executors) nominate;

(ii)             In default of such nomination my executor or executors(excluding an ineligible trustee who is one of my executors) is or are the trustee or trustees; and

(iii)            If I have no executors, the trustee is a person or persons appointed by the court and that person or persons holds or hold the power of appointment; and

(e)             If the ineligible trustee is my sole executor, the alternate executor(s) specified in Schedule 1 or Schedule 2, as the case may be, is or are appointed as trustee(s) and hold(s) the power of appointment.

22.4.          A person who is ineligible trustee ceases to be an ineligible trustee when that person no longer meets the terms of the definition in subclause 22.1.

22.5.          A person who has ceased to be an ineligible trustee:

(a)             May be appointed as trustee; and

(b)             If the person previously held a power of appointment under this trust but the power of appointment was terminated by operation of this clause: the person regains the power of appointment on the terms and conditions which governed the power of appointment before the person became an ineligible trustee.

22.6.          My executors (not including an ineligible trustee who is one of my executors) have the power (subject to law) in their discretion to declare a person who would otherwise be or become an ineligible trustee to be, or remain eligible to be, a trustee.    

23.               The primary purposes of the trust

23.1.          The primary purposes for which my trustees hold the fund on trust are directly or indirectly to provide for or promote the maintenance, education (including travel to broaden the mind), advancement or benefit of a beneficiary or beneficiaries; and to give to my trustees the widest possible discretion in using their powers in carrying out those purposes. The purposes of the trust as stated in this clause are to be read in their general meaning, and in no way limit the discretion of my trustees to decide from time to time whether or not to provide a benefit or benefits to any beneficiary: I emphasise that there is no obligation on my trustees ever to provide a benefit of any kind, to or for any beneficiary.

23.2.          Where the primary beneficiary is under the preservation age, I express the wish (without limiting the discretion of my trustees) that my trustees preserve the capital of the fund and as far as seems to them reasonable limit its application to the primary beneficiary’s medical and dental treatment, education (including vocational training), reasonable maintenance and welfare.

24.               Beneficiaries of the trust

24.1.          The primary beneficiary of the trust is a beneficiary of the trust.

24.2.          The potential beneficiaries of the trust are the following persons, whether alive at my death or coming into existence thereafter:

(a)             The issue of the primary beneficiary;

(b)             a spouse of the primary beneficiary;

(c)             the issue of a grandparent of:

(i)              the primary beneficiary; or

(ii)             a spouse of the primary beneficiary;

(d)             a spouse and children of any of the persons specified in the preceding paragraphs;

(e)             a trust, company or other entity in which a person mentioned in the preceding paragraphs has an interest, whether absolute, direct, indirect, present, contingent or expectant, or is a director or shareholder;

(f)              a charity or charitable or religious entity.

25.               Powers of primary beneficiary

25.1.          If the primary beneficiary has attained the preservation age and is not an ineligible trustee, the primary beneficiary may in writing, in the primary beneficiary’s discretion do any one or more of the following:

(a)             Remove one or more of my trustees;

(b)             Remove and replace one or more of my trustees;

(c)             Appoint one or more trustees; and

(d)             Appoint herself or himself trustee or sole trustee;

And these powers separately and collectively are the ‘power of appointment’.

25.2.          The primary beneficiary may in the primary beneficiary’s discretion give or withhold written consent to the transfer by my trustees in accordance with the powers given in the clause titled Powers of my trustees, of all or part of the income and all or part of the capital of the fund to any one or more of the beneficiaries and this power to consent or withhold consent to distributions of income and capital is the ‘power to consent to distributions’.

25.3.          The primary beneficiary may in the primary beneficiary’s discretion give or withhold written consent to ending the trust, and if giving such consent, may give written direction as to the proportions in which, and the beneficiaries in whom, the trust funds are to vest and this power to consent or withhold consent to ending the trust is the ‘power to consent to ending the trust’.

26.               Transfer of the powers of the primary beneficiary

26.1.          If the primary beneficiary has attained the preservation age and is not an ineligible trustee, the primary beneficiary may transfer any or all powers which the primary beneficiary has (including the ‘power of appointment’, the ‘power to consent to distributions’ and the ‘power to consent to ending the trust’) to any person or persons by deed or will.

26.2.          If the primary beneficiary dies without passing powers in accordance with subparagraph 26.1: the powers which have not been passed, pass to the primary beneficiary’s executors or legal personal representatives.

27.               Manner in which the powers of the primary beneficiary may be exercised

27.1.          Any powers which the primary beneficiary has under the terms of the trust, including the ‘power of appointment’, the ‘power to consent to distributions’ and the ‘power to consent to ending the trust’, may be exercised, and any consents which the beneficiary may give, must be given:

(a)             If the primary beneficiary has attained the preservation age and is not an ineligible trustee: by the primary beneficiary; or

(b)             If the primary beneficiary is a legal disability or lacks legal capacity: by the primary beneficiary’s guardian or legal personal representative; or

(c)             If the primary beneficiary has passed her or his powers under the trust to another person or persons by deed or will: by that person or those persons; or

(d)             If the primary beneficiary has passed her or his powers under the trust to another person or persons by deed or will and such a person is under a legal disability or lacks legal capacity: by the guardian or legal personal representatives of that person; or

(e)             If the primary beneficiary has passed her or his powers under the trust by deed or will to more than one person:

(i)              Where the deed or will specifies the manner in which the powers must be exercised and the consents must be given: in accordance with the provisions of the deed or will; and

(ii)             If there is no such provision in the deed or will: by unanimous agreement of all the persons to whom the primary beneficiary has passed her or his powers under the trust, together with the guardian or legal representatives acting on behalf of any such person who is under a legal disability or lacks legal capacity.

27.2.          For the purposes of this will, any powers exercised under this clause on behalf of the primary beneficiary are valid as if they had been exercised by the primary beneficiary.  

28.               Investment of the fund

28.1.          My trustees may invest the fund in any form of investment and vary and investment at any time as if the trustees were the absolute and beneficial owner or owners of the fund and acting in the trustee’s personal capacity.

28.2.          If the primary beneficiary has attained the preservation age and is not an ineligible trustee then:

(a)             Unless the trustee’s profession, business or employment is or includes acting as a trustee or investing money on behalf of other persons, there is no obligation on a trustee in exercising a power of investment to exercise the care, diligence and skill that a prudent person would exercise in managing the affairs of other persons;

(b)             My trustees may, but are not required to, review at any time or at fixed intervals the performance (individually or as a whole) of the investments comprising the whole or part of the fund; and

(c)             My trustees may exercise the power to invest the fund or vary an investment without the need to comply with any rule or principle of law or equity including:

(i)              A duty to exercise the powers of a trustee in the best interests of all present and future beneficiaries;

(ii)             A duty to invest the fund in investments which are not speculative, hazardous or involving waste; and

(iii)            A duty to act impartially towards beneficiaries and between different classes of beneficiaries.

28.3.          For the purposes of this clause, the expressions ‘vary and investment’ and ‘varying an investment’ includes realising an investment or changing the terms upon which an investment is held.

28.4.          In exercising the power of investment, my trustees may, but are not required to, do either or both of the following:

(a)             Obtain and consider independent and impartial advice for the investment of the fund, varying an investment or the management of the investment from a person whom the trustee reasonably believes to be competent to give the advice, and

(b)             Pay out of the fund the reasonable costs of obtaining the advice.

28.5.          In considering whether to obtain advice or pay the costs thereof under subclause 28.4, my trustees must have regard to the size and nature of the fund, and the age and vulnerability of the primary beneficiary.

28.6.          My trustees are not required to comply with any one or more of the paragraphs of subsection (1) of section 14C of the Trustees Act 1925 of the Australian Capital Territory (or any equivalent provision or legal requirement that applies to the fund by virtue of the laws relating to trusts in any other jurisdiction) where in the reasonable opinion of my trustees compliance would not advance the purpose of the trust as expressed in this will.

29.               Powers of my trustees     

29.1.          Subject to subclause 29.2, in addition to the powers given by law and this will and without limiting the those powers, my trustees have the powers set out in this subclause 29.1:

(a)             My trustees may in their discretion:

(i)              Retain all or part of the capital and accumulate all or part of the income of the fund, up to the period of time permitted by law;

(ii)             Refrain, temporarily or permanently, from distributing or providing income, capital or other benefits from or relating to the fund, to any one or more or all my beneficiaries;

(iii)            Deal with all property in the fund in any way that my trustees choose as if my trustees were the absolute and beneficial owner or owners of the fund;

(iv)            Acquire or lease property for occupation, use or enjoyment by a beneficiary (whether alone or with some other person or persons);

(v)             Appoint accountants, administrators or advisors as my trustees believe appropriate for the responsible operation of the fund, and pay or recover the reasonable costs of these services from the fund; and

(vi)            Charge for services performed in a professional capacity on a reasonable basis arrived at:

(A)            Where the primary beneficiary has attained the preservation age, by agreement with the primary beneficiary;

(B)            Where the primary beneficiary has not attained the preservation age, by agreement with my executors,

And pay or recover such charges from the fund;

(vii)           Subject to this clause Powers of my trustees, to the extent that it is relevant to their trust and appropriate to their functions, exercise the powers which I have given to my executors and trustees in the clause General powers of my executors and trustees.

(b)             If they have obtained the prior written consent of the primary beneficiary, my trustees may:

(i)              Transfer all or part of the income and all or part of the capital of the fund to any one or more of the primary beneficiary and the potential beneficiaries, in the shares and amounts and at such time or times as my trustees in their discretion decide, without any obligation to make payments to or for any beneficiary or to ensure equality or proportionality among those to or from whom payments are made, and this power may be exercised even though the beneficiary is a trustee or the sole trustee;

(ii)             Amend the provisions of Schedule 3, but not so as to alter the beneficiaries of the trust or to cause a resettlement of the trust;

(iii)            Bind by deed the future operations of the trust (including future distributions of income or capital of the trust fund, or future vesting of trust income or capital of the trust fund in any beneficiary of the trust);

(iv)            Alter or revoke by deed a previous deed binding the future operations of the trust;

(v)             End the trust at such time as they determine, provided that my trustees have ensured or ensure that the trust assets vest in the beneficiaries and (if the primary beneficiary has so specified) to the beneficiaries, and in the proportions, specified by the primary beneficiary.

1.2.          Where there is more than one trustee of a trust, the exercise of these powers requires the unanimous agreement of all my trustees, being trustees of that trust.

1.3.          My trustees acting in good faith:

(a)             Are entitled to indemnity and reimbursement out of my estate or the trust fund (as the case may be) for their expenses, costs and liabilities of every kind arising out of the administration of, and litigation related to, my estate and its trusts; and

May apply estate or trust property to satisfy their indemnity and secure their reimbursement.

30.               Ending of the trust and consequent vesting of trust property

30.1.          The trust ends on the first to occur of any of the following:

(a)              When the time set by the law of perpetuities expires; and if at that time no decision has been made as the distribution of the balance of the fund, it passes as follows:

(i)              if the primary beneficiary is alive: the primary beneficiary; or

(ii)             if the primary beneficiary is not alive: to the personal representative of the primary beneficiary for the benefit of the beneficiaries of the primary beneficiary;

(iii)            if the primary beneficiary left no testate or intestate beneficiaries: to such charity or charities as my executors think fit in the share or shares they think fit; and the receipt of the treasurer, secretary or public officer for the time being of a beneficiary under this provision is a sufficient discharge to my executors in respect of a gift to that beneficiary; or

(b)             when my trustees acting under the powers given to them in this will end the trust: in this case the fund vests in the person or persons specified by my trustees acting under the powers given to them in this will.

End of Schedule 3

Schedule 4

In relation to my executors: conflicts of interests, priorities, duties and powers; in relation to my will as a whole: interpretation of particular terms. This schedule applies in any event.

31.               Executors: conflicts of interest

31.1.          All powers and discretions conferred upon an executor by this will or by law, may be exercised without obtaining independent legal advice or an order of court, and notwithstanding that the executor, or any person being a director or shareholder of a corporate executor, has or may have a direct, indirect, or personal interest, whether as shareholder, director, member, or partner of any company or partnership, or otherwise, in the manner or result of exercising such power or discretion, or may benefit directly or indirectly as a result of the exercise of any such power or discretion, and notwithstanding that the executor for the time being is the sole executor.

32.               Priorities for executors

32.1.          The first priority which I wish my executors to observe is to administer and divide my estate in accordance with Schedule 1 and Schedule 2 of this will. The second priority which I wish my executors to observe is to administer my estate in an efficient and cost-effective manner for the benefit of my beneficiaries, bearing in mind that tax effectiveness, while important, is not a primary concern.

33.               Duty of my executors in relation to power to appoint to an existing trust

33.1.          If at my death I hold a direct or indirect power of control over, or power to appoint a trustee, appointor, guardian or other officer to, a trust, my executors must, as far as is reasonably possible, pass that power and the shares in the trustee of that trust if there are such shares, to or for the benefit of one or more of my primary beneficiaries, in accordance with Schedule 1 and Schedule 2.

34.               Duty to seek out superannuation death benefit nominations

34.1.           One or more binding superannuation death benefit nominations may be in force at my death. My executors must check for such nominations, and in particular they must check my disclosed member account.

35.               Self managed superannuation fund: application of shares in trustee

35.1.          My executors hold my shares in the trustees of any superannuation fund in which I am a member to ensure as far as possible, subject to any nomination I have made being in force at my death, that the trustee of the fund applies any death benefits in a way which will facilitate the division of my estate in accordance with Schedule 1 and Schedule 2; and thereafter the shares form part of my estate and are to be administered accordingly.

36.               Power of my executors in relation to superannuation lump sum death benefit

36.1.          The following provisions apply if my estate receives a benefit that was a superannuation lump sum death benefit within the meaning of the Income Tax Assessment Act 1997 s307-5 (or a provision of similar import).

36.2.          If a primary beneficiary of my will is a death benefits dependent with the meaning of the Income Tax Assessment Act 1997 s302-195 (or a provision of similar import), my executors may in their discretion hold all or part of that primary beneficiary’s share of that lump sum death benefit in a separate superannuation proceeds trust for that primary beneficiary, and in that case:

(a)             The primary beneficiary is the exclusive beneficiary of the trust but may not be appointed as trustee, and the primary beneficiary will acquire the capital of the trust otherwise than as a trustee when the trust ends; and

(b)             Subject to subparagraph 36.2(a), the rules of the trust are identical to those set out in Schedule 3 of this will.

36.3.          If more than one superannuation proceeds trust is created, subparagraphs 36.2(a) and 36.2(b) apply to each of those trusts.

37.               General powers of my executors and trustees

37.1.          My executors and my trustees may in their discretion:

(a)             Exercise any powers given to them by law;

(b)             Exercise the powers of a trustee for sale in respect of any property in my estate and my executors and my trustees may:

(i)              without being liable for any loss (including liability for taxation on capital gain) caused by so doing, postpone sale;

(ii)             without being liable for any loss (including liability for taxation on capital gain) caused by so doing, retain in its form of investment at my death any part of my estate;

(iii)            sell, by public auction or private sale, and for that purpose may extend credit;

(c)             determine whether receipts or outgoings are capital or income, or partly capital or income, so as to bind the beneficiaries, even though the receipts are from a company or corporation that has made a decision on the matter;

(d)             apply for the maintenance, education (including travel to broaden the mind), advancement or benefit of a beneficiary the whole or any part of the capital and income of that part of my estate to which that beneficiary is entitled or may in future be entitled;

(e)             for the purposes of paragraph (d):

(i)              make a payment or payments to a minor beneficiary’s parent or guardian or a person with whom the minor beneficiary resides; and

(ii)             accept the receipt of that payee as an absolute discharge;

(f)              make loan to beneficiaries:

(i)              secured or unsecured;

(ii)             on interest or interest free; and

(iii)            on whatever terms;

(g)             acquire or lease property for occupation, use or enjoyment by a beneficiary (whether alone or with some other person or persons);

(h)             do any one or more of the following:

(i)              concur in any scheme or arrangement involving or affecting the shares, securities, control, property or undertaking of;

(ii)             vote in; or

(iii)            apply for and accept directorship of

any company or corporation in which my estate is or may become interested or concerned;

(i)              apply for, accept or take up securities of any description or denomination, bonus shares or other rights or benefits made available by a company or corporation in which my estate is or may become interested or concerned;

(j)              borrow money, either with or without giving security, and enter into any mortgage, charge, bill of sale, lien or security over any part of my estate; and money borrowed is to be treated as part of my estate or trust property, as the case may be;

(k)             lease any part of the real or personal property in my estate:

(i)              for the periods and upon and subject to the covenants and conditions which my executors think fit; and

(ii)             either with or without provisions for renewal or otherwise;

(l)              accept surrenders of leases or tenancies of my estate or any part of it;

(m)           maintain, repair, improve, develop, alter, renovate, pull down, erect or re-erect any part of my estate;

(n)             maintain, take out or participate in any one or more of the following:

(i)              insurance policy against risks affecting my estate;

(ii)             life insurance policy in respect of any person;

(iii)            policy or contract of health or accident insurance or benefit in respect of any person;

(iv)            friendly society, trade union or association of employees benefit scheme in respect of any person;

(v)             superannuation or pension scheme in relation to any person; and

(vi)            funeral benefit or payment scheme in relation to any person;

(o)             without the consent of any beneficiary, partition or appropriate any part of the real or personal property of the estate in or towards the satisfaction of a legacy or  a share of any person or persons in my estate, and in doing so the following provisions apply:

(i)              the value of any such property is that agreed by those of my beneficiaries affected or, if my executors are satisfied that no value can be agreed in this way, the value is that determined by an independent valuer appointed by my executors for the purpose;

(ii)             my executors or my trustees, as the case may be, need not take into account any differences in value of particular property to particular beneficiaries other than the value of the property as decided in subparagraph (i);

(p)             determine (in the event of my executors disposing of or being deemed to have disposed of property) from which part or parts of the capital or income of my estate they will pay any income tax liability flowing from the disposal or deemed disposal; and for that purpose they may determine what is capital and what is income, but I express the wish that, if it seems appropriate to my executors to do so, proceeds of such a disposal be resorted to in the first instance;

(q)             identify, segregate into separate income accounts and allocate separately different sources and types of income, and record this in the books of account;

(r)              carry on, either alone or in partnership with any person or persons, the whole or part of any trade or business in which I am engaged or interested at my death;

(s)             delegate a power or function, and execute a power of attorney or other instrument to make the delegation;

(t)              appoint and empower nominees to act and hold properly for my executors; and appoint custodians of any property and documents (including documents relating to property) in my estate;

(u)             for any reason, for instance to allow an early distribution of residue, set aside out of my estate a fund sufficient to meet all debts, charges and other liabilities of my estate. If, having discharged all such debts, charges and other liabilities a balance remains, that balance does not form part of the residue of my estate, but is to be distributed as if it were part of the residue.

37.2.          I express the wish that my executors and my trustees make available to those of my beneficiaries who inherit any property all documents relevant to that property or the assessment of tax relating to that property.

37.3.          I wish my executors and my trustees to exercise their powers so as to ensure (so far as seems to them reasonable having regard to the funds at their disposal and other relevant matters) that any person caring for any of my children (whether as guardian or otherwise) does not suffer in the course of caring for those children a financial burden or loss (whether or not it is incurred strictly within her or his duties as carer or guardian), and I trust that the carer will accept it as my wish that the powers be exercised in this way.

37.4.          Gifts to persons who are named as trustees or executors are not dependent on those persons acting as trustees or executors.

37.5.          Even though a person is or becomes or has been an executor or trustee, that person may buy or appropriate to herself or himself at a fair value any part of my estate or any trust fund deriving from it (either at public auction or by private contract or treaty) on the same terms my executors may grant to a purchaser from my estate.

37.6.          My executors and my trustees acting in good faith:

(a)             Are entitled to indemnity and reimbursement out of my estate or the trust fund (as the case may be) for their expenses, costs and liabilities of every kind arising out of the administration of, and litigation related to, my estate and its trusts; and

(b)             May apply estate or trust property to satisfy their indemnity and secure their reimbursement.

38.               Executors’ fees and commission

38.1.          Any of my executors (and I note that this clause does not apply to those trustees whose remuneration is provided for the clause Powers of my trustees) who practices a profession:

(a)             Is entitled to be paid out of the fund all usual and reasonable professional fees for work done by that executor or trustee or her or his firm (as executor, trustee or both) on the same basis as if he or she were not one of my executors but employed to act on behalf of my executors; and

(b)             May in addition apply to the court for commission for her or his pains and trouble.

39.               Interpretation

39.1.          Definitions:

‘child’ includes a biological or adopted child, and ‘children’ has a corresponding meaning;

‘my estate’ includes my residuary estate if it is appropriate in the context, for instance if legacies or devises have been given;

‘my spouse’ means the person defined in this Will;

‘named beneficiary’ means the person defined in this Will;

‘preservation age’ means the age of 25 years;

‘spouse’ (and ‘spouses’ has a corresponding meaning) in relation to a person means:

(a)             the husband or wife of the person at any time; and

(b)             the partner of a person, of the same sex or different sex (howsoever described), with whom the person has been living at any time in a marriage-like relationship or domestic relationship.

39.2.          The headings to clauses in this document are for the assistance of the reader only, and not form a substantive part of the document.

End of Schedule 4

SIGNED

{date}

{testatorsSignature}

{testatorsName}

The testator signed in the presence of both of us being present at the same time, and we attested his/her signature in the presence of him/her and of each other.

{firstWitness}

{firstWitness256[1]}

{firstWitness256[2]}

{firstWitness256[3]}

{firstWitness256[4]}

{secondWitness}

{secondWitness257[1]}

{secondWitness257[2]}

{secondWitness257[3]}

{secondWitness257[4]}

END of WILL.