Yes if structured correctly, a testamentary trust otherwise established under a will can be effectively ignored, with any assets instead passing at the trustee’s discretion to nominated beneficiaries.
While View documents are structured to allow this to occur relatively easily, specialist advice should be obtained by the trustee at the time to ensure there are no adverse trust law, tax or stamp duty consequences triggered.
There are a number of benefits of having our standard TT wills include a specific power permitting the executors to distribute the share of the estate directly to the relevant beneficiary instead of a TT.
As one example, this power can be used for the purpose of contributing a share of the inheritance to a special disability trust (SDT).
This means that the will could be prepared in the usual way, and the executors would have flexibility to determine at the relevant time whether it would be more appropriate to distribute a share of the inheritance to a SDT, rather than incurring the costs of establishing a SDT while they are still alive.
This is often the preferred approach, given how regularly the laws have changed in this area.
Another example is where the circumstances of the willmaker or a beneficiary have changed at the time the will needs to be relied upon or the value of the estate at the date of death does not justify the use of a TT.
Ultimately, if a willmaker or their facilitating adviser are unsure of whether to include one more TTs, we generally recommend they be included. This is because the abovementioned power allows the flexibility for an appropriate decision to be made at the date of death as to whether TTs are established. This is the conservative approach given the benefits of a TT are difficult (and can be costly) to reverse engineer if it is decided after a willmaker’s death that a TT is needed, however no TTs were included under the will.