Published on 27 Aug 09
by NATIONAL DIVISION, THE TAX INSTITUTE
One of the advantages of owning assets through discretionary trusts is that control may be exercised without the controller necessarily owning any property that can be applied by creditors or other claimants. But recent case law suggests that courts may in some circumstances attribute property belonging to a discretionary trust to the controller of the trust.
This paper examines the recent cases that have considered this question and identifies the circumstances in which claimants may be able to access property in a discretionary trust. Topics covered include:
- traditional judicial approach to discretionary trusts
- Pope versus DRP Nominees
- Richstar Investments
- Kennon versus Spry
- future judicial trends in relation to creditor and family claims.
Lisa Hespe, CTA, has practised in the field of taxation for 20 years. She was formerly a senior associate at Mallesons Stephen Jaques specialising in income tax, tax disputes and advising on mergers and acquisitions. Lisa has appeared in the AAT, Federal Court and High Court and has assisted in all aspects of the conduct of disputes. Lisa has lectured in the Masters programme on tax litigation at the University of Melbourne.
- Current at
26 July 2012