Non-Delegation in Wills: Why a Will Maker must give clear direction on how to distribute wealth in their Will
In estate planning, clarity and specificity are essential. A Will maker must personally state their intentions in the Will to ensure their estate is distributed as desired. Delegating these decisions to another party without clear instructions leads to legal complications, including invalidating specific provisions or the entire Will.
What Is the Rule Against Delegation in Wills?
Your Will is where you instruct your executors on who gets what. If you delegate that responsibility to the executor, you breach the rule against delegating authority in a Will—potentially making your Will invalid.
The rule against delegation in Wills ensures that a Will maker does not transfer their decision-making authority to another individual without explicit instructions. The Will must reflect the true intentions of the deceased to provide certainty and prevent legal disputes among beneficiaries. If a Will maker fails to provide direct instructions, the courts may declare parts of the Will invalid, leading to unintended distributions.
My Will has to tell the world how I want my assets distributed – no one else
These cases illustrate what happens when a Will maker improperly delegates their testamentary powers:
1. Leahy v Attorney-General – everything to the nuns of the Catholic Church
In Leahy v Attorney-General (NSW) (1959) 101 CLR 611, the Will maker gifted his estate:
“for such order of nuns of the Catholic Church or the Christian Brothers as my executors and trustees shall select.”
The Court ruled that this clause was invalid because it failed to state a particular order of nuns or provide criteria for selection. By leaving this decision entirely to the trustees, the Will maker had delegated his testamentary power. This is not allowed.
The Court stated:
“A gift to an unincorporated association may be valid if the Will provides a clear method of selection or use of the funds. However, where the terms are vague and require the trustees to make fundamental decisions, the gift may fail for uncertainty.” (at 619)
You must clearly define who gets your assets. If your Will lacks certainty and clear direction, the courts declare the gift invalid.
2. Tatham v Huxtable – When Wills Are Too Vague
In Tatham v Huxtable (1950) 81 CLR 639, the High Court of Australia examined a Will where the Will maker gave the executor broad discretion to distribute assets without specific instructions. The Court found this approach invalid, as it allowed the executor to determine the Will’s content, undermining the Will maker’s intent.
Facts of Tatham v Huxtable – executor decides who gets the assets, not the Will maker
Joseph Tatham appointed Huxtable as his executor, granting him full control over asset distribution without clear guidance. This lack of specificity raised legal concerns about the validity of such delegation in a Will.
Legal Issue of Tatham v Huxtable – gave someone the power over the Will
The question was whether a Will maker could delegate extensive decision-making powers to an executor. This is without explicit directions, effectively allowing the executor to decide the estate’s distribution. So, instead of the Will maker telling the world how he wants his assets given away, he gave that job to someone else.
Tatham v Huxtable decision – failure to set the rules in the Will
Justice Fullagar noted that while individuals can grant discretionary powers over property during their lifetime, doing so in a Will is wrong. He stated:
“A power or a trust to dispose of property, created by will, is not void on the ground that it is a delegation of the testator’s power to make a will, if the same power or trust would be valid if made by the testator by instrument during his or her lifetime.”
This suggests that while certain discretionary powers can be validly conferred, such as a 3-Generation Testamentary Trust, they must align with what is permissible during the Will maker’s lifetime.
The High Court concluded that granting the executor unrestricted discretion without clear instructions was invalid. The ruling emphasised that a Will maker must provide specific directives for asset distribution, as delegating broad, undefined powers undermines the testamentary intent.
The Will makers must articulate precise instructions in their Wills. Ambiguities or excessive delegation renders the Will invalid.
3. Delegation of Testamentary Capacity in a Will: Lessons from Lutheran Church v Farmers’ Co-Op Executors
A Will maker must personally decide how their estate is distributed in their Will. No one else.
A Will that gives an executor or trustee too much discretion without clear instructions leads to legal complications. The High Court of Australia examined this issue in Lutheran Church of Australia South Australia District Inc v Farmers’ Co-operative Executors & Trustees Ltd (1970) 121 CLR 628. The Court ruled that a Will maker cannot delegate testamentary decisions to another person without clear direction.
Why was the Delegation of Testamentary Power in this Will Invalid?
Phillipa Stapleton, the Will maker, wrote her own Will. (Home-made Wills are a licence for litigation lawyers to make money.)
She included a clause giving her executors the power to transfer some of her property to the Lutheran Mission to build homes for aged blind pensioners. However, she did not provide clear instructions about how the executors should decide which assets to transfer.
The Court found that this clause in her Will was too vague. It did not tell the executors what they were required to do. The Court ruled:
“A power to dispose of property by will is personal to the testator and cannot be delegated.” (at 634)
Only the Will maker has the right to decide who receives their estate. They cannot leave that decision to someone else without setting clear conditions.
What does Lutheran Church v Farmers’ Co-Op teach us?
- A Will maker must personally decide how their estate is distributed.
- A Will that gives an executor or trustee too much control without guidance leads to legal disputes.
- The Court strikes out vague clauses that delegate testamentary decisions.
- Assets affected by invalid clauses may be distributed under intestacy rules.
The best way to avoid these issues is to ensure that the Will maker provides clear, direct instructions in their Will. This prevents unnecessary legal battles and ensures that the estate is distributed according to the Will maker’s true intentions.
4. Delegation of Testamentary Capacity in a Will: what is acceptable, Gregory v Hudson
A Will maker must personally decide, in their Will, how their estate is distributed. A Will that gives an executor or trustee too much discretion without clear instructions leads to legal complications. The Supreme Court of New South Wales examined this issue in Gregory v Hudson [1997] NSWSC 140. The Court ruled that a Will maker can direct their estate to an existing discretionary trust, provided the trust’s terms are well-defined and the Will maker’s intentions are clear.
Why was the Delegation of Testamentary Power in this Will Valid?
The Will maker faced a complex family situation and wanted to ensure his estate was managed fairly. He left his entire estate, valued at approximately $14 million, to the trustee of a pre-existing family discretionary trust. The trust benefited a broad class of people, including his widow, former wife, children from his first marriage, stepson, and grandchildren.
The Will maker also provided a detailed memorandum of wishes to guide the trustees in distributing the assets. His widow challenged the gift, arguing that he had improperly delegated his testamentary responsibilities to the trustees.
The Court ruled that this arrangement was valid because the Will maker was not asking the trustees to decide how to distribute his estate. Instead, he deliberately chose to channel his assets through an established trust. Since the trust terms were clear, this did not constitute an unlawful delegation of testamentary power.
The Gregory v Hudson Court stated:
“A power to dispose of property by will is personal to the testator and cannot be delegated.” (at 634)
This case demonstrates that a Will maker can direct assets to an existing discretionary trust if the trust already has clear terms and guidelines. This is the case we followed when we invented 3-Generation Testamentary Trust Wills in 1997. They include these Gregory v Hudson compliant trusts:
- 3-Generation Testamentary Trusts – reduces CGT, income tax & stamp duty for up to 80 years from the date of death
- Superannuation Testamentary Trust – stops the 17% or 32% tax on Super going to adult children
- Bankruptcy Trusts – if a beneficiary is bankrupt
- Divorce Protection Trust – if a child separates from their partner
- Maintenance Trust – if the beneficiary is under 18 or vulnerable
What Happens When a Will Delegates Testamentary Capacity in Gregory v Hudson?
Why a Will Maker must give clear instructions to the Executor
An executor is legally responsible for administering the estate according to the Will maker’s instructions. Their duties include:
- Identifying and Valuing Assets – Ensuring all assets are accounted for and appraised appropriately.
- Paying Debts and Taxes – Settling any outstanding financial obligations of the estate.
- Distributing Assets – Allocating the estate to beneficiaries as specified in the Will.
Without clear instructions, an executor may struggle to interpret the Will maker’s intentions. This often leads to legal disputes and delays in distributing the estate.
How to Prevent Invalid Delegation in Wills
To prevent unintended delegation, it is essential to include a protective clause in the Will. Legal Consolidated uses the wording:
“However, no power can be used to create a delegation of testamentary power that would invalidate the Will or any trust arising under this Will or offend any perpetuity period.”
This clause helps ensure that testamentary decisions originate from the Will maker, preserving the Will’s validity and preventing executors or trustees from exercising excessive discretion.
What Happens When a Will Delegates Testamentary Capacity?
When a Will maker delegates testamentary power, part of the Will may be declared invalid. This means:
- The affected assets may not go to the intended beneficiaries.
- The assets may instead be distributed according to intestacy laws.
- The executor or trustee may have no authority to act on the vague clause.
In this case, the Court ruled that the clause in the Will was invalid because the Will maker had not made a final decision about which assets would be transferred.
How to Prevent Invalid Delegation in a Will
A Will should always be clear. The Will maker must decide:
✔ Who receives each gift.
✔ The exact conditions (if any) of the gift.
✔ The trustee’s powers and limits.
Conclusion: The Dangers of Unclear Wills and How to Avoid Them
A Will’s integrity depends on its provisions’ clarity, including how the parties want to dispose of their assets. Will makers must personally state their instructions within the Will to prevent delegation that leads to legal complications. Executors must receive clear, enforceable directives to ensure the estate is distributed correctly.
By including precise instructions and legally protective clauses, Will makers ensure their final wishes are honoured without unnecessary legal disputes.