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Trust assets and estate planning: How has the dust settled after Kennon v Spry?


In recent years, there have been numerous developments which have challenged the effectiveness of trust structures, causing a loss of faith in the ability of traditional family discretionary trusts to protect assets in the event of marriage breakdown. The High Court decision in Kennon v Spry, in particular, appears to alter longstanding principles relating to the asset protection advantages of trusts in this context. This article considers the consequences of that decision, discusses the treatment of trust assets in a relationship breakdown and the distinction between assets forming part of the pool of property or being treated as a financial resource, examines the application of these principles in recent decisions, and offers some practical recommendations.

The authors conclude that, while this is an evolving area of law, recent case law indicates that, for the foreseeable future, well-structured trusts should continue to be an effective vehicle for asset protection and estate planning.

Author profiles

Matthew Burgess CTA
Photo of author, Matthew BURGESS Matthew co-founded specialist firm View Legal in 2014, having been a lawyer and partner of one of Australia’s leading independent law firms for over 17 years. Matthew’s passion is helping clients successfully achieve their goals. Matthew specialises in tax, and estate and succession planning, providing strategic advice to business owners and high net worth individuals. He has been recognised in the Best Lawyers list since 2014 in relation to trusts and estates and either personally or as part of View Legal in Doyles since 2015 in relation to taxation, and since 2017 in relation to wills, estates and succession planning. In part leveraging off the skills he has developed working in the SME market space, Matthew has been the catalyst for a number of innovative legal solutions for advisers and their clients, including establishing Australia’s first virtual law firm. - Current at 13 August 2018
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Tara Lucke
Tara is a director and co-founder of the specialist law firm, View Legal Pty Ltd. Her favourite aspect of her work is getting to know her clients’ business and family. To help her clients achieve their goals, Tara places high importance on working collaboratively with their existing advisers to deliver effective and appropriate solutions for tax planning, estate and business succession planning, and asset protection. As a founder of View Legal Pty Ltd, Tara is committed to building a law firm that she would choose to use herself. To this end, she is passionate about exploring innovations in the legal industry, particularly in relation to using technology and fixed pricing to provide quality solutions and price certainty for clients. Tara is a fellow of The Tax Institute and is regularly published in Australia’s leading monthly tax journal, The Tax Institute’s Taxation in Australia and the leading weekly tax journal, Thomson Reuters’ Weekly Tax Bulletin. - Current at 07 April 2015
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