Trusts and asset protection best practice
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Publication date: 01 Feb 12
Source: "THE TAX SPECIALIST" JOURNAL ARTICLE
Discretionary trusts play a very important role in preserving wealth from financial risk, but how they work to achieve this goal is often not well understood.
This article considers the technical attributes of discretionary trusts which provide shelter in times of financial trouble. It also considers judicial intervention which might be seen to interrupt that financial isolation. The article addresses the following matters: why a discretionary trust is prima facie impervious to a trustee in bankruptcy; the claims of a retired trustee against the current trustee; the claims of trustees in bankruptcy or liquidators against income or capital distributions; the reach of the Federal Court decision in Richstar (No 6); and the power of the Family Court in the context of the decision in Kennon v Spry.
Finally, the article considers the extent to which the recently introduced trust streaming rules may impact on an otherwise useful asset protection tool.
Ken is a Tax and Commercial Law Partner in the Sydney office of Schurgott Noolan Pty Ltd. Ken has extensive experience in all aspects of tax (including state taxes), as well as business structuring, asset protection, succession planning and trust and estate law. He is a member of the Advisory Panel to the Board of Taxation and is presently heavily engaged in consultation in relation to the reform of the taxation of trusts. Ken is the immediate Past President of The Tax Institute.
Current at 18 February 2013
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