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Powers to amend trusts are no longer available from courts


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.

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Michael Bennett CTA
Michael is a barrister practising from 13 Wentworth Selborne Chambers in Sydney. His practice areas include commercial, equity revenue, insolvency, property and corporations. Previously he was a solicitor at SBN Lawyers, a specialist legal practice in Sydney, where he provided advice on tax planning, superannuation, estate planning, commercial litigation and commercial business advising. - Current at 01 February 2016
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