This article was written by Nancy Wang Solicitor at W & G Lawyers. For further information about Nancy Wang‘s professional background, legal experience, and areas of practice, please click on her name to view her full profile.
A recent Queensland Supreme Court decision is a timely reminder that structuring your wealth through a family trust does not mean you can pass trust assets through your will.
Many families in Queensland hold their property and business assets through a discretionary family trust. It is a sensible and common arrangement — offering asset protection, tax flexibility, and succession planning benefits. But there is a trap that catches people out more often than it should: the assets inside the trust are not yours. And a recent Supreme Court decision makes that point very clearly.
In Di Trapani & another v Di Trapani & others [2026] QSC 20, the Queensland Supreme Court examined the will of the late Elizabeth, who died in November 2023. Her will — prepared not by a lawyer, but by the family’s accountant — included gifts of several properties to her children and grandchildren. The problem was that those properties did not belong to Mrs Di Trapani at all. They were held by a company called Glutolo Pty Ltd as trustee of the Mario Di Trapani Discretionary Family Trust. The result: the gifts failed entirely.
The Case at a Glance – Di Trapani & another v Di Trapani & others [2026] QSC 20, Mrs Di Trapani’s will purported to gift a shed in Kedron and three Chermside units to family members. All four properties were held by Glutolo Pty Ltd as trustee of the family discretionary trust — not by Mrs Di Trapani personally. The court held that all four gifts failed, because a will can only dispose of property that the testator actually owned.
What the Will Said — and Why It Did Not Work
Mrs Di Trapani’s will included a clause giving her shares in Glutolo Pty Ltd to the executors, described as being “for the purpose of consolidating, disposal, and transfer of my assets” in the trust. It then went on to gift specific trust properties to named beneficiaries — her son Peter, her daughter Gina, and two grandchildren.
On the surface, this might seem like a workable plan. If the executors owned all the shares in the trustee company, could they not simply cause the company to transfer the properties out of the trust? The court said no — and the reasoning matters for anyone in a similar position.
The assets of a discretionary family trust belong to the trustee — not to the person who created the trust, and not to the person who controls the trustee company. A will can only give away what the testator owned at death.
The Three Walls the Will Could Not Break Through
- Wall One — What a will can legally dispose of
Under section 8 of the Succession Act 1981 (Qld), a will can only deal with property that the testator was entitled to at the time of death (or that their executor becomes entitled to after death). Trust property does not meet that test. It belongs to the trustee — in this case, Glutolo Pty Ltd — not to Mrs Di Trapani in her personal capacity. This is fundamental and cannot be changed by the way a will is worded.
- Wall Two — The “general power of appointment” argument
The executors raised section 33J of the Succession Act, which can extend a will’s reach to property over which the testator holds a general power of appointment — essentially an unlimited power to direct where the property goes. If that power existed, the will could operate as an exercise of it.
But Mrs Di Trapani had no such power. The power to deal with trust assets belonged to the trustee (Glutolo), not to her personally. And even Glutolo’s distribution power under the trust deed was not “general” — it was limited to distributing only to nominated primary beneficiaries, which did not include Mrs Di Trapani’s estate or her executors. Section 33J could not help.
- Wall Three — “But the executors control the company”
Perhaps the most intuitive argument was this: Mrs Di Trapani’s children (the executors) were already directors of Glutolo. As directors, they controlled the company. As shareholders (once the shares passed under the will), they controlled it even more. Could they not simply vote to transfer the properties out of the trust and honour their mother’s wishes?
The court said no, for two reasons. First, owning shares in a company is not the same as having management control — that belongs to the directors, and directors owe legal duties to the company that they cannot simply set aside because a will asks them to. Second, the executors were not trust beneficiaries. The trust deed did not permit Glutolo to distribute trust assets to them as executors. There was no mechanism by which a direction in the will could compel the trustee to do so.
The court followed the reasoning in the New South Wales decision of Wheatley v Lakshmanan [2022] NSWSC 583, which reached the same conclusion in materially similar circumstances.
What Actually Happened to the Properties
The four gifts — the Kedron shed and the three Chermside units — all failed. They remained in the trust. The trust continues to operate, with Glutolo as trustee, and what happens to those assets is now a matter governed by the trust deed and the trustee’s discretion — not by the will.
This was almost certainly not what Mrs Di Trapani intended. She clearly wished for specific family members to receive specific properties. But because the will was drafted without a proper understanding of how the trust structure worked, that intention could not be carried out.
Other Issues the Court Resolved
The judgment addressed several other clauses of the will, and the outcomes are worth noting briefly.
The intercompany debt direction. The will directed that Di Trapani Constructions and Glutolo “shall not make any further claims against one another” in respect of intercompany loans — effectively asking the companies to forgive a debt of over $1.1 million between them. The court held this was unenforceable. A testator cannot instruct corporate entities to release debts between themselves through a will; doing so would cut across the directors’ legal duties and effectively lift the corporate veil.
The $400,000 clauses. Two consecutive clauses appeared to deal with a gift of $400,000 to son Peter. The court read them as two separate entitlements, not one combined benefit — meaning Peter could potentially receive $800,000 in total if he owed no debt to the estate at the date of death. The word “further” in the second clause was decisive.
The arbitration clause. The will appointed the accountant who drafted it as an arbitrator if the executors could not agree on major decisions. The court authorised the executors to disregard this entirely — it improperly ousted the jurisdiction of the Supreme Court, the accountant was no longer retained by the estate, and the clause was simply unnecessary.
The Grange property guarantee. The will directed the estate to pay “my debts including bank debts” in relation to a property at Grange. By the time Mrs Di Trapani died, she was no longer a borrower on that loan — she had been refinanced out in 2019 and was only a guarantor. The court held that a guarantee is not a “debt” in this sense. The estate was not obliged to cover a guarantee that had never been called upon.
What This Means for You
If Your Family Uses a Trust Structure
- Your will and your trust are two different things
Your will deals with assets you own personally. Trust assets belong to the trustee, not to you — even if you control the trustee or established the trust yourself.
- You need a plan for the trust as well as a will
If you want certain people to benefit from trust assets after your death, that needs to be addressed in the trust deed — not just in a will. This might involve changing the trust deed, vesting the trust at an appropriate time, or ensuring the right people hold the right roles after your death.
- Shareholder control is not the same as trustee power
Owning shares in a corporate trustee does not give you — or your executor — the power to direct the trustee to distribute assets to whoever you choose. The trustee’s powers are defined by the trust deed and by law, not by the will of a shareholder.
- Non-lawyer will drafters carry serious risk
Accountants and other advisers can provide valuable input in estate planning discussions — but drafting a will requires legal expertise. The consequences of getting it wrong, as this case shows, can be significant and irreversible.
- Review your will when your circumstances change
If you set up a trust after making your will, or transferred assets into a trust, your existing will may no longer achieve what you intend. A review is not a luxury — it is essential.
A Note for Clients with Cross-Border Family Arrangements
Many of our clients have family members in both Australia and China, and manage assets across both countries. Whether assets are held through a Queensland discretionary trust or a company structure, the starting point is always the same: a will can only give away what you own.
If family loans, company structures, or overseas assets are involved, the interaction between a will, any trust arrangements, and foreign succession laws can become complex very quickly. We regularly advise on these intersections and can help you understand your position clearly.
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