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Powers to amend trusts are no longer available from courts

Published on 01 Mar 15 by "TAXATION IN AUSTRALIA" JOURNAL ARTICLE

To what extent can a trustee obtain from the court a power to amend the terms of the trust in the future? The practical effect of the recent decision of the Court of Appeal of New South Wales in Re Dion Investments Pty Ltd is that a trustee without power to amend the terms of the trust cannot obtain that power from the court. The omission of a power to amend in a trust’s terms will therefore be a permanent omission, at least in New South Wales. The trustee can, however, seek specific powers by way of supplementation or overriding of the existing trust terms, even for the purposes of obtaining tax advantages, if s 81 of the Trustee Act 1925 (NSW) is otherwise satisfied. The decision is significant as it confirms the lack of foundation of many earlier decisions that enabled a trustee to further amend a trust’s terms.

Author profile

Michael Bennett CTA
Michael Bennett is barrister practicing from 13 Wentworth Chambers in Sydney. He practices in Tax planning (including Superannuation, Estate Planning and Structuring), Federal and State Tax litigation, Commercial litigation and Bankruptcy and Insolvency litigation. From 2006 to 2011, before coming to the Bar, Michael was a solicitor in two boutique SME tax and commercial practices. He was a Judges Associate before that. Michael lectures in tax law in the UNSW Masters of Laws Program. Michael is a Lieutenant in the Royal Australian Navy Reserves (Legal Officer). Michael frequently writes for the Tax Institute or other professional bodies and gives presentations for various bodies on the areas in which he practices. - Current at 24 January 2018
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