Janis Consults

19/06/2026

Can't you just do this after death? Maybe, but in almost every circumstance it will be more expensive.

Can't we just agree after death and sign a deed? Maybe, but there are a few problems here. In order to get the tax break necessary to keep the assets the way you want you will probably need to get court approval for that deed of family arrangement. Getting court approval will easily cost you three times, maybe more, the cost of a discretionary testamentary trust. Most of these estates are not cash rich so the beneficiaries are reaching into their pocket for that.

Can't we just agree between ourselves without a deed? Maybe, but you are likely to have tax consequences. The transfers between you and your siblings (you take all of this asset, I will take all of that asset) are likely to attract tax. Again, this is tax that requires a cash payment.

If everyone is just going to casb everything out right after death (whenever that is) and take cash then sure the simple Wiill is fine. But you don't lose the ability to do that with a DTT, what you lose using a simple Will is these other options that I am giving in this series of videos. Where one of the options can be accessed after death it is significantly more expensive and so your family will end up just cashing everything out and distributing it.

Cashing everything out (right after death, not five or three years later but in the market conditions that exist at the time of your death) is fine, great, if that is what works. I am not saying this is a poor or lazy choice. I am saying that you could give your family more flexibility than that, flexibility that doesn't require someone reaching into their pocket to pay a large court fee or tax bill.

The whole point, actually, is that the beneficiaries can choose what works for them. In fact, the beneficiaries can make different choices, one might cash out their share and one might use the trust. You are giving them choice at a difficult time in their lives.

19/06/2026

Problem #8 with a simple Will - they are just going to cash it out and ten years later your legacy is a thing of the past.

With a discretionary testamentary trust they could take that inheritance, which in Australia is on average $706k, and invest it. If they get a 7% return then that is $50k a year. If there are two beneficiaries then that is $25k a year before tax, so a $25k pay rise every year.

If they pay down their mortgage now, well they were always going to do that. They will not take that extra money and invest it, statistically that is notnwhat is going to happen. They will spend the $25k a year, yes for sure, but the capital dits there. The capital will continue to be invested and continue to generate that income. Building up the capital to have that investment is something that most people cannot manage.

19/06/2026

I love excel, even though most lawyers are not native excel speakers. This is the spreadsheet I am using for today's Webinar. If you are still interested in the content but cannot attend today don't worry, it is being recorded.

18/06/2026

The second case that I am covering in tomorrow's email to the NSW Estate Lawyers list, Whittorn v Siu, also contains criticism of a member of the profession. Both of the cases, with judgments being published in the last week, are about trusts being claimed over estate property.

18/06/2026

Are you interested in the upcoming free webinar on loss leaders? In order to find out more or register you can get the details in the NSW Estate Lawyers group. This particular event, and some of my other events, would apply to practises outside of NSW despite that being the focus of the group.

The free event is on 1 July 2026, but it will also be recorded.

18/06/2026

Reason #7 for a Discretionary Testamentary Trust - the beneficiaries have discretion as to the length of time it exists.

In a simple Will it is sell fairly soon, or put into personal names. In a fixed trust Will you can keep the trust open but this is janky as you might only want to keep one asset in the trust and cash out the others. So with Discretionary Testamentary Trust if you habe two primary beneficiaries, one might say I will take mine as cash now, and the other might say I will keep mine in the trust. No worries. This is not doable with a fixed trust, everything that comes out of the trust needs to come out in equal percentages. Everything that stays needs to be split between everyone in equal percentages.

A Testamentary Trust can exist for 79 years but it doesn't have to. Maybe your beneficiaries only want it for five years. That is the point though, the beneficiaries choose based upon their needs at the time of your death. You are not tying them into something, you are giving them options.

18/06/2026

A win for Testamentary Trusts -

Albanese has also announced the government will introduce new innovative tax concessions for start-up businesses.

He says the government will go further and exempt income from all types of discretionary testamentary trusts from the minimum tax, provided they are established for genuine testamentary purposes. (Sorry I cannot make the news article come up without that image of Pauline Hanson, but hopefully if you click on it then you will see the content from the PM's announcements this morning.)

One Nation MP David Farley says migrants would have to "manage" their culture under his party's vision for a monocultural Australia. Follow live.

17/06/2026

A $500k proce drop, that is what has happened in this Estate because they have to sell the property now, and the Estate itself doesn't have the cash to do the work.

If there was a discretionary testamwntary trust then they would not be in such a rush to sell, and would have had more flexibility around dealing with this issue. For instance, could the trust borrow against the value of the house to do the work and sell the property in a proper state? If there were other assets, was one beneficiary willing to take on this asset as their share and invest time or debt into the project themselves? If they had simply waited for the market to pick up again would there have been less of a penalty for the fact this actually quite lovely home needed work?

I don't know, but I suspect what is also happening here is that no one was living in the property because the deceased was in aged care and didn't have a plan around what that would look like. This is another common issue we see as Estate Planning lawyers, an unwillingness to engage with these issues until you are forced into aged care can cause significant issues. So the property sat vacant and degraded, and options that might have been available to either borrow and fix, or sell the property before it got worse during this person's life were not accessed. Again I don't know this but it would explain how a lovely, 4 bed, three bath, two driveway, brick home with an in ground pool ends up like this.

However returning to the Estate issue, if there was a DTT then the beneficiaries would have had more options here, and certainly wouldn't have been selling a very difficult asset in an already stale market.

17/06/2026

I am working through the case of Tarazi v Paras for the upcoming weekly email newsletter, and Para 5 gives us a reminder that we cannot approach the Judge without leave. Note that not only were they scolded, but Justice Elisabeth Peden didn't have regard to those submissions -

Before moving to the substantive issues, I note that after the completion of the hearing, Sophia and Anastasia’s counsel sent further unrequested submissions to my chambers without seeking leave. They ought not to have been provided; the time and place to present argument is at the hearing, and communications to the Court after the hearing without leave should not be made: see eg Carr v Finance Corporation of Australia Ltd [1981] HCA 20; (1981) 147 CLR 246 at 258 (Mason J); Eastman v Director of Public Prosecutions (ACT) [2003] HCA 28; (2003) 214 CLR 318 at [27]- [31] (McHugh J, Gummow J agreeing); NT Power Generation Pty Ltd v Power and Water Authority (2004) 219 CLR 90 at [191]-[192] (McHugh ACJ, Gummow, Callinan and Heydon JJ). The Court, lawyers’ clients and other parties ought not be burdened with the time and cost of the preparation and consideration of such material. This is antithetical to the overriding purpose of the Civil Procedure Act 2005 (NSW). I have not had regard to those submissions.

Tarazi v Paras; Paras v Tarazi [2026] NSWSC 369 (15 June 2026)

17/06/2026

Problem #6 is the age of the beneficiary.

The average age of a beneficiary in Australia is 55-59 years old. Most people creating a Will are not thinking about providing for people approaching retirement, they are thinking about young beneficiaries or young adults. A child, a young adult, and a person approaching or in retirement all have very different financial needs. Some of those will want to cash everything out and pay down debt, some of those don't have debt.

The flexibility of the Discretionary Testamentary Trust means that you don't have to guess who needs what, the beneficiaries and trustees can figure that out when the time comes. A person approaching retirment hopefully doesn't have debt to pay down, so what they want will look different.