Increasingly trusts are being incorporated into modern wills for the following reasons:

• to deal with modern family situations, such as "blended families" where the client has had more than one marital or de-facto relationship and has children of a previous and/or more than one relationship;

• where certain beneficiaries have a mental or physical disability and require provision for special care and/or where the need to preserve government assistance is paramount;

• where the client wishes to try to protect estate assets due to concerns regarding a beneficiary's financial circumstances (for example potential bankruptcy of a beneficiary) or in the event of a client's family breakdown;

• to enable intended beneficiaries to receive their inheritances in the most flexible, tax effective and asset protective manner possible; or

• where the client makes significant gifts to charitable causes and does not feel any existing charity will best fulfil their intentions or the client considers that existing charities are poorly managed and so funds will be wasted by the charity. There are several options available to such clients that can involve special structures being established under the client's will and/or during the client's lifetime, the choice often depending on the best way to maximise the use of and entitlement to various tax concessions and deductions both on death and during the client's lifetime.

Special disability trusts fall under two distinct categories:

• those that comply with the very strict Centrelink rules so as to qualify for various income tax and Centrelink means test gifting rule concessions; and

• those that do not.

In many situations, a "Centrelink compliant" special disability trust will not be able to hold sufficient assets to generate a level of income that would be able to fully provide for the needs of a person with a very severe disability, without adversely impacting their Centrelink entitlements.

See Special disability trusts.

As compared to making a gift of direct legal ownership of assets to an intended beneficiary, providing a gift of assets via a discretionary testamentary trust in which the intended beneficiary is a primary beneficiary and over which the intended beneficiary has direct or indirect control may provide advantages.

Such trusts can also be drafted so as to impose special obligations, conditions and restrictions upon the trustee so as to provide long term care for a primary beneficiary who has a physical or mental handicap, is a spendthrift, has poor judgmental capacity, or has an addiction to drugs or alcohol.

There are also special tax considerations that apply to a principal place of residence of the deceased client held in a discretionary testamentary trust.

The major disadvantage of using testamentary trusts is that they are set up under a person's will, and therefore may be subject to challenge, for example under family provision legislation. Where it is perceived that the likelihood of a successful challenge to the client's will is great, it may be preferable to explore other possibilities (such as establishing alternate arrangements inter vivos before the client dies).

See Testamentary trusts.

The object of a charitable trust is a charitable purpose, rather than specific beneficiaries. All charitable trusts are therefore purpose trusts. Generally, the law does not permit non-charitable purpose trusts other than certain anomalous exceptions, and therefore it is crucial to the formation of a valid charitable trust that its purpose must be a "charitable purpose".

Under current laws, a charitable fund is a fund established under an instrument of trust or a will for a charitable purpose. The purposes set out in the will or instrument of trust must be charitable. Charitable purposes are grouped in the following classifications:

• the relief of poverty;

• the advancement of education;

• the advancement of religion; and/or

• other purposes beneficial to the community.

Where a charitable trust's purposes cannot be fulfilled, the doctrine of cy-près can sometimes be invoked so as to ensure that the funds are redirected towards purposes as close as possible to the trust's original purpose.

See Charitable trusts.

The care and maintenance of family pets and other domestic animals poses some interesting issues. The two main hurdles in terms of creating a valid gift in a will for the care and maintenance of a pet or other domestic animal are that:

• as the pet or other domestic animal cannot be a beneficiary, the trust will fail due to the lack of "certainty of objects", plus there is no human person beneficiary to enforce the trust against the trustee; and

• the life of a pet or other domestic animal (being a mere chattel) cannot be used as a "life in being" by which one can measure whether or not the trust will breach the rule against perpetuities.

There are a number of options available under the client's will.

See Animal care trust.

The doctrine of cy-près is that, where a charitable trust's purposes are impossible or cannot be fulfilled, the funds should be redirected towards purposes as close as possible to the trust's original purpose.

This doctrine is particularly valuable in the context of wills where a final "gift over" residuary gift of the estate has been made to a charitable trust or for a charitable purpose which either can no longer be fulfilled (for example, because the purposes of the charitable trust have substantially changed) or could not have been fulfilled in the first place (for example, because the trust no longer exists as at the date of death).

For the doctrine to apply to save (or redirect) a failed gift, the gift must have been made for a particular charitable purpose, or there must be a general charitable intention.

Note that the doctrine of Cy-pres has been superseded in WA by the Charitable Trusts Act 1962 (WA) although the concept is followed through in the Act.

See Cy-près schemes.