The incidence of testamentary trusts, previously reserved for the wealthy and the ‘artful dodgers’ is increasingly a part of the estate planning of every-day society. These particular types of trust that only arise upon the happening of the death of the maker of the will, are invaluable in dealing with blended families, assets that would otherwise be subject to substantial tax or duty; and the maintenance of minor or disabled beneficiaries.
The freedom that these vehicles give in the estate planning process come at the expense of control. That might appear counter-intuitive as an argument because the terms of the trust are well established prior to the maker of the will dying. However, the trust has been invited into the mix and bring with it all of the complexities that have plagued the law of trusts for centuries. Not the least of which is the powers of the trustee at general law and the law’s own interpretation of certain terms and phrases in the trust document.