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Discretionary trusts – challenging the trustee’s discretion


Disputes about family trusts are on the rise. Attacking the exercise of a discretion has always required subtlety, sometimes directed at telling the client they have no evidence to do so. Through a series of case studies, based around turmoil in the fictitious Wolfram family, we see how to begin the work, by seeking information. Then we see how important administrative discretions can be, such as investment decisions. We move on to look at decisions to appoint income and capital, and remove a beneficiary or a trustee. Finally, we consider possible tax consequences flowing from a successful review of (or revision to) a decision.

Author profile

David Marks QC CTA
David is a commercial Silk at the Queensland Bar practising principally in tax. He has a broader practice in commercial litigation, trusts and estates, and administrative law. He contributes to the life of the profession through his committee work for The Tax Institute and other professional bodies. He is a Chartered Tax Adviser and a registered Trust and Estates Practitioner. He received The Tax Institute’s Meritorious Service Award in 2013, and is on TTI’s Editorial Board. David also serves on the disciplinary panel of an international practitioner association. - Current at 09 September 2021
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