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Testamentary Trusts and excepted trust income: duplication may be the result of changes to the law

Updated: Aug 4, 2021

One of the benefits of a testamentary trust is that income derived from assets of the trust can be distributed to minors who are taxed at adult tax rates. This is not the case with inter vivos (during life) trusts where minors can receive a low amount of income before being taxed at punitive rates of tax.

The changes to s 102AG of Income Tax Assessment Act 1936 about excepted trust income seem to have brought with them a consequence which will result in duplication and greater expense in the administration of assets passed from one generation to the next.

The author does not necessarily disagree with the policy intent behind the changes. However, the recent changes may have caused greater administration and complexity when passing family wealth from generation to generation using a testamentary trust.

Take the following (quite common) scenario:

  1. Dad dies leaving a Will containing a testamentary trust. He has assets in his own name and leaves those assets to the trust.

  2. Mum dies, say 6 months later, leaving a Will containing an identical testamentary trust and she has assets in her estate. Her will contains a clause that allows the executor to transfer the assets to the trust established under Dad's Will.

This begs the question - if Mum's assets are transferred to the trust established under Dad's Will, is income generated from Mum's assets excepted trust income able to be tax effectively distributed to minors?

The new provision in s 102AG(2AA) says that the assessable income of the trust estate must come from property that "was transferred to the trustee of the trust estate to benefit the beneficiary from the estate of the deceased person concerned, as a result of the will, codicil, intestacy or order of a court mentioned in paragraph (2)(a)."

In this case, the trust estate in paragraph (2)(a) would be the one "which resulted from a will" – ie, Dad's Will. But the use of the words "the" when referencing "the deceased person" and "the will" suggest that the assets of Mum would need to go to a trust estate established under her will (not her husbands) in order for any income derived from that property to be excepted trust income.

The clause allowing assets to be passed to a trust with identical terms established under another will may still be relevant. However, this strategy may have the effect of limiting the amount of excepted trust income that can be distributed from a testamentary trust. This will only result in duplication of trusts (in some families there will be multiple trusts per will - one for each child).

If you have a live testamentary trust or want your estate plan to include one, please get in touch with one of our expert estate planning lawyers.


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