Trustee Powers in Wills

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Most legal documents have what you could call “boring parts”, passages of strange and sometimes difficult to read words. In Wills, which seem to have stranger language than most other kinds of legal documents, there are usually large chunks of this kind of text. But one type of clause in a Will is vitally important, even if it is difficult to read, and that is the clause giving the executor his or her “trustee powers” to manage the property in the Will-maker’s estate.

Why is this important? Because without those powers, the executor may have problems with the estate.

Here’s an example. A couple that has adult children get divorced. They each remarry. Once of them, let’s call him Bob, keeps the house, and lives in it with his new partner. In Bob’s new Will, he writes that his new partner can live in the house until that person dies. That’s a normal thing to do. After the partner dies, or no longer needs the house, it goes to Bob’s adult children.

A difficulty could arise, however, if Bob forgets to give his executor proper trustee powers. What if the new partner refuses to pay the rates and taxes owing on the house, or neglects to do maintenance on it? Can the executor do anything to make the partner pay for those things? Maybe not: it will depend on what the general laws that apply to estates and executors has to say about it.  If the Will doesn’t give the executor the right to demand the partner do these things, then it could be assumed the estate will bear the cost. But the estate may not have any funds in it, just the house. See the problem?

A lot of people who make “homemade” Wills, or who rely on Will kits or other templates, don’t appreciate that not having all the right clauses in their Wills could cause serious problems after their death for their loved ones. Which is the exact opposite of what people want to achieve with their Wills, which is to leave their affairs in good order. You don’t know what you don’t know. If you don’t have expertise in preparing a Will, you could make a costly mistake when preparing your own Will. The boring language is there for a reason.

If you need assistance with a Will in Western Australia, please contact us. We also can assist clients in Melbourne, Victoria. This post was written by Wills lawyer, James Irving. It is not intended as legal advice for any particular person.

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