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Trusts and asset protection best practice


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.

Author profile

Kenneth Schurgott CTA-Life
Ken is a Solicitor - Director of Schurgott & Co Lawyers specialising in taxation matters (including State Taxes, stamp duty, payroll tax and land tax) and with extensive experience in business structuring, business sales and acquisitions, asset protection, succession planning and trust and estate law. Ken is very experienced in tax dispute matters, negotiations for settlements, mediations and conciliations and litigation. He regularly appears before the AAT and NCAT and instructs counsel in matters before the Courts. Ken chaired the Noosa Tax Intensive from 2005 to 2007 and was on the Organising Committee for a longer period. He was National President of the Institute in 2012. - Current at 04 January 2018
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