Discretionary trusts are a useful vehicle for operating businesses, minimising tax, and providing asset protection.  They are also flexible in nature – the trustee has discretionary powers with regards to distributing the net income and capital of the trust. However, the exercise of the discretionary power has been scrutinised in recent years, including in the case of Owies v JJE Nominees Pty Ltd (in its capacity as the trustee for the Owies Family Trust) [2022] VSCA 142 (“Owies”).  

My blog will identify the conduct of the Trustee in Owies that lead the Court of Appeal to find the trustees had not exercised their duty to give real and genuine consideration of the positions of the beneficiaries of the trust.

What is a discretionary trust?

Discretionary trusts are established by Deed between the Settlor and the Trustee.

The trustee holds the trust funds on trust for the beneficiaries. Beneficiaries are the object of the trust and have an interest in the trust property. They usually consist of immediate and extended family members, and hence these types of trusts are called “discretionary family trusts”.

Most discretionary trusts also have an appointor. The appointor has the power to appoint and remove a trustee.

Discretion to distribute trust income and capital

The trustee has the power to distribute the net income and capital of the trust to any one or more of the beneficiaries and in such proportions as it sees fit. The discretion is absolute and unfettered. 

At the end of each financial year, the trustee will resolve to distribute the net income of the trust fund. Ordinarily, if the trustee has not distributed the income prior to then, a certain class of beneficiaries will take the income by default.

The distribution of income is strategic. Subject to the terms of the Deed, net income of the trust can be split between beneficiaries Further, capital gains and franked dividends can be streamed to beneficiaries, reducing the overall tax position for the trust.

Trustee decision making

The trustees exercise of discretion to distribute net income has been scrutinised in recent years. The court has considered numerous applications by aggrieved beneficiaries, questioning the distribution of trust income because the trustee did not give real and genuine consideration to them as beneficiaries of the trust.  

This blog will consider the recent case Owies v JJE Nominees Pty Ltd (in its capacity as the trustee for the Owies Family Trust) [2022] VSCA 142 and in doing so, provide some practical tips for trustees when it comes to the requirement to give real and genuine consideration to the beneficiaries of the trust, prior to making its decision regarding the distribution of trust income.

Owies – The facts

In Owies, the beneficiaries of the trust were from the same family –parents, John, and Eva, and their three children Michael, Deborah, and Paul. The assets of the trust were in the order of $23 million and an annual income in the hundreds of thousands of dollars.

For each financial year from 2011 to 2018, the trustee determined to distribute income to John, Michael, and Eva in the ratio 40:40:20.  In none of the years was a distribution of income made to Deborah and Paul.  

John and Evan were directors of the corporate trustee, from its registration in 1970 to their deaths in 2020 and 2018 respectively. Michael was director in 2019.

Deborah and Paul had need. Deborah suffered from various medical conditions. Her medical expenses for 13 years exceeded $20,000 per annum. Her taxable income between 2013 and 2017 was between $39,000 and $44,000.  It was noted that Paul also had demonstrable need for income, but to a lesser extent than Deborah.

Owies – The outcome

The court held the trustee did not give real and genuine consideration of the positions of Deborah and Paul.

A key consideration for the Court of Appeal’s was that the nature and purpose of the power to distribute income, was to benefit Michael, Deborah, and Paul in equal shares.  The trust deed provided that upon the default appointment of income, the three children held the income pursuant to an express trust in equal shares. There was also provision for the children to take the trust fund in equal shares on the vesting date, in absence of a prior determination. 

The factors that lead the Court to determine the trustee did not give real and genuine consideration to Paul and Deborah were:

1. The trustee made no enquiries of Paul and Deborah.
2. There was no obvious reason why the trustee would favour Michael, John, and Eva, when Deborah and Paul had a demonstrable need for income.  
3. The trustee did not exercise an independent mind – there was an elision between the interests of John and Evan and the best interest of the beneficiaries under the trust.
4. There was a history of antipathy between Eva and Paul, and Eva and Deborah – for example, Paul had asked for a copy of the trust deed but was met with resistance.
5. There was a pattern of distributions from 2011 to 2018, which was inconsistent with a continuing obligation to consider the distribution of income for each accounting year

Practical notes for Trustees

The first point to note is that trustees should not fret about whether their second-cousin’s spouse will bring an application, questioning why the trustee did not make a distribution to them in 2018.

Owies illustrates that in discharging the duty to give real and genuine consideration, it is critical to identify the nature and purpose of the power to distribute. Trustees need to consider who are the beneficiaries on the default distribution of income and on the vesting date.

Once those beneficiaries are identified, the trustee must make enquiries of the position of those beneficiaries, and factor in that information as part of its decision-making process.  Further, the Trustee should obtain legal advice about the most appropriate way to document this process.

Importantly, the trustees must be acting in good faith, responsibly and reasonably at all times. 

The team at Perspective Law Pty Ltd can assist to mitigate the risk of disputes regarding trust administration. If you would like to get in touch, please contact us on 07 3839 7555 or email us at info@perspectivelaw.com.

Land tax laws have recently been announced and then withdrawn. The proposed changes were so that the value of any interstate land owned by an entity would be considered when determining Queensland land tax liability.

Queensland Parliament recently passed then withdrew the Revenue Legislation Amendment Bill 2022 which included changes to how land tax will be calculated in Queensland from 30 June 2023.

From that date, it proposed interstate land be included to determine:

• Whether the land tax-free threshold has been exceeded; and
• The total taxable value of your landholding, which is used to calculate the rate of land tax that will be applied to the Queensland proportion of your landholdings.

Once the rate of land tax has been calculated, you would only pay land tax on the land that you owned in Queensland.

If you do not own land in other states or territories, this change would not affect you.

If you do own land in another state or territory, you would need have had to declare your interstate landholding by setting up an online account with the Queensland Revenue Office and completing a declaration (within 30 days of receiving your assessment or by 31 October) which includes:

• Details of the land;
• The land value based on the statutory value in that state or territory; and
• Your percentage of ownership of the land.

Most (but not all) of the land tax exemptions applicable to Queensland land also apply to interstate land (for example, principal place of residence, primary production land).

The most obvious effect of this change is that many people who owned both Queensland and interstate property, but were previously below the land tax threshold, may have been above the threshold and liable to pay land tax on the Queensland property they hold.

What a difference a day makes especially in politics!

Note that in NSW and Victoria there are deemed Foreign Trust land tax surcharge laws. I suspect that it will not be long before Queensland follows suit to align with these states.

If you have issues about stamp duty and Land Tax, please give Tony or Stuart a call 07 3839 7555.

Trustees hold a general duty to preserve the trust fund. Those who fail to satisfy this duty may find themselves personally liable for losses caused by their breach. But what does this duty actually entail, and how can trustees avoid liability?

A Trustees must understand their underlying responsibility to preserve the trust fund. Section 5 of the Trusts (Investments) Amendment Act 1999 (Qld) (‘The Act’) authorises a trustee to invest funds from the trust in any investment they deem appropriate. However, trustee powers of investment are not limitless. To guard against personal liability, the trustee must ensure:

• The investment is not expressly prohibited by the trust deed, regardless of the benefit it may bestow to the trust.
• Reasonable care, prudence and diligence is taken when making and managing investments to ensure they are in the best interests of the trust and its beneficiaries.

The Act also sets out numerous considerations a trustee ought to undertake prior to, and throughout management of investments made with trust funds. The applicability of these considerations will vary depending on the trust, its purpose, its beneficiaries, and the proposed investment. Before investing trust funds, at a minimum, consideration needs to be given to:

• The purpose of the trust.
• The needs of the beneficiaries.
• The risk associated with the investment, including the proportionality of the investment to the value of the entire trust fund.
• Forecasted appreciation or depreciation of the investment.
• Potential returns and the expected time frame of such returns.
• Any management or maintenance costs associated with the investment.

Trustees must also be cognisant of the fact that their fiduciary obligation is an ongoing one – there can be no “set and forget” when it comes to trustee investments. The Act requires, at a minimum, annual consultation with a qualified financial advisor on investments made with trust funds, ensuring they continue to be in the best interest of the beneficiaries. The trustee must also ensure it utilises other sources of professional advice, including legal and accountancy, where the trust investments necessitate it.

Trustees may be held personally liable for losses incurred by the trust where they have failed to invest the trust funds, even where the trust did not expressly set out vehicles for investment or even the requirement to do so.[1] The takeaway here is that prudent and carefully considered investment of trust funds falls within the duty of the trustee and a failure to do so could be a costly. Failure to invest could be deemed a breach of trustee duties leading to removal as trustee and deemed a breach of trustee duties. Trustees must not interpret ‘cautious investment’ to mean no investment.

To conclude, investment of trust funds is a critical and essential means of preserving and strengthening the value of a trust and best serving the interests its beneficiaries. However, when acting as trustee, it is best to err on the side of cautious investment. Investment suitability can only be assessed on a trust-by-trust basis, which is why trustees must keep the above duties and considerations at the forefront of their mind both preceding and following initial investment to support the trust without exposing themselves to liability. If you are appointing someone as trustee or want to review your trust deed to determine your rights and obligations, please contact Perspective Law on 07 3839 7555.

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[1] Adamson v Reid (1880) 6 VLR (E) 164.

There are several factors a person needs to consider when deciding whom to appoint as the executor of their will. The decision should not be made hastily. An ill-fitting appointment can have devastating consequences to the administration of an estate.

An executor is the person appointed by the testator (the person making the Will) to manage, administer, direct, and dispose of property under a will (Encyclopaedic Australian Legal Dictionary, LexisNexis Australia).

Set out below is a non-exhaustive list of criteria to follow when deciding whom to appoint as an executor.

1. Trust

The testator must trust that the executor will carry out their duties competently.

Their duties include attending to the funeral, burial, or cremation arrangements, obtaining a Grant of Probate (if necessary), administering the estate according to law, paying estate debts, preparing an estate account and distributing the balance of the estate to the beneficiaries.

Trust is critical not only for the peace of mind of the testator, but because it is also the foundation of the fiduciary duty of an executor. The law recognises the executor is in a special position of power of the property of the estate, and the beneficiaries are considered vulnerable in transactions between the executor and beneficiary concerning estate assets. The executor must act for and on behalf of the beneficiaries. 

As a fiduciary, the executor must not put themselves in a position of conflict between their personal interests and their duties to the beneficiaries.

As a tool to assist with the decision-making process, the testator should consider appointing a person who they trust to carry out their wishes.

2. Financially Literate

The Executor has a duty to maximise the value of the estate.

In this context, it is important that the executor understands the nature and value of the testator’s assets, preferably prior to him or her passing away.  For example, where a testator owns commercial property which is tenanted, then the executor has a duty to maintain those tendencies and continue to collect rent.

Financial literacy can be an important skill for the Executor to have at the outset of the administration of the estate. It will assist when the Executor is dealing with financial matters such as tax and mortgages.  It is also recommended that the Executor be able to work with the testator’s accountants and other professional advisors.

3. Health

In most cases, we will advise the testator to consider appointing an executor who is younger than them. it is important that when the executor is required to act, they are able to do so, both mentally and physically.

If the person is experiencing health issues, then it is advisable to appoint someone else to act as an executor in the first instance.

If an executor has to retire or renounce during the administration, for health or other reasons, then this can delay the administration.

4. Location

It is recommended that the executor is within close proximity to the estate assets.

This is for several reasons:

• although the need to physically sign documents in this electronic age is becoming less likely, there are still documents which require physical signatures;  and

• there are a number of issues that can arise during the estate administration and may require the executor to physically attend the property.

Particularly recently, with the increased incidences of flooding and other natural disasters, the executor may be required to inspect the estate property and arrange for repairs. This is part of their duty to maintain and maximise the value of the estate.

As a tax consideration, it is important to appoint an executor that lives in Australia and is a resident for tax purposes. In the alternative, there is the potential for the estate to be deemed a foreign trust. This can result in a higher tax liability, meaning less estate assets to distribute to the beneficiaries.

In any case, the testator should appoint a substitute executor to act in the event that the first named Executor is incapable or unable to act. This will allow the estate to continue to be administered in circumstances where the first mentioned executor renounces.

From an accountability perspective, it is also worth considering appointing two executors to act in the first instance. Executors must act jointly.

As you can see, there are a multitude of factors to consider when appointing an executor under your Will. If you’d like to discuss any of these matters further, please do not hesitate to contact Elizabeth Ulrick (elizabeth.ulrick@perspectivelaw.com, 07 3317 4311) or Tony Crilly (tony.crilly@perspectivelaw.com, 07 3317 4313)

Options to renew are common in both retail and commercial leases, to provide the Landlord and the tenant  with the opportunity to extend the term  of the lease without the need to renegotiate a majority of the terms.

However, in preparing a formal Lease  with an option to renew or in exercising it, there are important factors that must be considered under legislation or commonly found in leases.

1. Exercise of Option – the Process

Leases with an option to renew should specify a specific time period within y which a party must exercise their option. This might  be the latest date by which the tenant must  exercise their option or lose the right to do so completely (e.g. no less than 6 months prior to the expiry of the initial term of Lease) or a range of earliest and later dates within which the tenant must  exercise their option (e.g. no earlier than 6 months prior but no later than 3 months prior to the Lease’s expiry).

As with all notices between parties of a Lease, a notice to exercise the option to renew a lease must  be made in writing, to the address for the Landlord as provided by the Lease. Failure by the tenant to exercise their option before expiry of  the option date will  have severe consequences, as the Landlord will have no obligation to accept a renewal request made outside of the exercise date.

Under the Retail Shop Leases Act 1994 (Qld), a Landlord is required to remind its tenant, in writing, at least 2 months prior, but no later  than 6 months before the option date, as stated in the lease.

2. Exercise of Option – the Pre-Requisites

Once the option is exercised, the terms of the Lease for the extended term will mostly  remain the same. However, there may be several key obligations under the Lease to be completed or rental to be assessed including:

• Redecoration: tenants are often required to periodically redecorate or renovate their Premises, usually triggered near the end of each term.

• No defaults: while the Landlord will not be able to decline a validly exercised option to renew, the tenant must ensure that they do not default on the lease, prior to or after their option exercise. This includes payment of all rent and outgoings up to date as well as evidence of insurance renewal certificates;

• Rent Review: leases generally require an annual review of rent under a fixed percentage increase or CPI review. In a new term, a market rent review is favoured, where the landlord will reassess the rent against the market value. Market review clauses will often contain mechanisms to resolve disputes regarding the assessed rent, for the market rent to be assessed by an independent valuer if the tenant does not agree with the initial rent review. Such mechanisms for disputes are required for Retail Shop Leases under the Act, regardless of the Lease’s provisions. It is much better for th etenat to have received notice of the market rental from the landlord as required under a lease, prior to the date for having to decide whether to renew the lease or not.

The timing of the market rent review should also be noted, to ensure that disputes regarding market rent do not delay the renewed term of the Lease.

Every person has different circumstances whether it be their family members, the assets they own or control and the wishes they have for the future should they pass away.

Like each person, a Will that creates a testamentary trust is as different as they are. Some examples of types of trusts are:

1. Special disability trusts- These are special trusts that provide for beneficiaries that are disabled, vulnerable due to inherent medical conditions and are unlikely to be able to effectively manage the assets they are gifted through the Will. If the person suffers from a significant disability either physical or mental, they may meet the Centrelink guidelines to create a special trust that allows tax fee income for their support and a capital amount paid for their accommodation or main residence purchase. Compliance with the Social Security Act and regulations must be observed I the drafting of the terms of the trust.
2. Restricted access to capital- Often a parent is very concerned about a child receiving a substantial amount by inheritance at a young age and losing it due to a business startup, an investment failure, or a relationship breakdown, early in their lives. To give a balanced approach, many clients create a gift of a percentage of the capital at an age say 25 years and then continue the control of the executors until a later date, say they reach 35 years. This assists a beneficiary by giving access to the income but preserving some of the capital from these risks and if they lose it all the first time, they have a second chance.
3. Change of control of assets- A Family Discretionary Trust can be used to create long term asset protection and tax minimization for a family group. By creating a mechanism for a change of control over a family trust, the Will maker can effectively make a distribution to the intended person. Careful consideration of the controller or appointor stated in the deed is required as well as the change of Director and shareholder of a trustee company. This can be done in the Will and a resolution of the company, as well as by a variation to the trust deed. Sometimes a Will maker insists on a trust being wound up and the assets transferred through to the estate trust created in the Will.
4. Restricted powers- Often the Will maker wants to ensure the benefits of the testamentary trust are utilized and to that extent they restrict the ability of the executor to dispense with or not establish the trust. They might also restrict who can be appointed to control the trust by excluding certain individuals such as a spouse of the child beneficiary.

Every case is different, and the Will should be drafted in a way that meets the wishes of the person making the Will. You only get one chance to get it right sometimes, so it is best to make it count. Our recommendation is always allow flexibility to meet changes in circumstances and leave as much potential benefit to the intended beneficiary as possible. Ask us how by contacting Tony Crilly at Tony.Crilly@Perspectivelaw.com.

The numerous films about estates have people believe that when someone dies, the family will be summoned to a meeting with a lawyer for the ‘reading of the Will’.  There is no requirement for this to occur and it rarely takes place.  Instead, we often have clients who come to us because they believe they are a beneficiary of an estate (or are considering making a claim on the estate) but have not received a copy of the Will.  In some cases, the Executor has refused to provide a copy.

Who is entitled to obtain a copy?

In Queensland, the Succession Act 1981 states that a person in possession of the original Will must allow certain people to inspect the Will or receive a copy.  The persons entitled include:

1. A person named in the Will, whether as a beneficiary, executor or other person, including in an earlier Will;

2. The testator’s spouse, parent or child;

3. A person who would have been entitled to a share of the estate if the testator had died intestate (meaning without leaving a Will);

4. The parent or guardian of a minor child mentioned in the Will or a child entitled under intestacy;

5. A creditor and anyone with a legitimate claim against the estate;

6. Anyone eligible to make a family provision application.

The obligation is not limited to the last Will – it also includes prior Wills, Codicils and other documents purporting to be a Will.

How can I obtain a copy?

If you know who holds the Will, and satisfy one of the above categories, you can contact the person confirming that you are entitled under s 33Z of the Succession Act and that you would like to inspect the Will or obtain a copy.  If you request a certified copy of the Will then you may need to pay their reasonable expenses.

If you are entitled to receive a copy but the person in possession of the Will is still refusing, it is important to seek legal advice.  There are deadlines for Court applications (9 months from date of death for further provision) including challenging the validity of a Will or making a claim for further provision from the estate and you do not want to miss the opportunity to file an application.

What if I don’t know where the Will is?

It can be trickier if you don’t know where to begin looking for the Will.  You may ask the next of kin or other family members.  Otherwise, the deceased’s solicitor, accountant or even the funeral home may know where the Will is held.  If a Grant of Probate is being obtained, then it is also possible to access documents from the Supreme Court of Queensland.  A search in the Queensland Law Reporter will show the name and address of the person or the law firm making the Application for a Grant of Probate.

Can I seek a copy of a Will while the person is still alive?

There are no obligations to provide a copy of your Will to anyone during your lifetime.  In certain circumstances your power of attorney may seek to obtain a copy of the Will to check whether they are selling assets which were specifically gifted in your Will.  It is otherwise entirely up to you whether you choose to disclose the contents of your Will prior to your death.

If you think that you are affected by an estate and a Will has not been disclosed to you please contact Lauren Nolan for advice at Lauren.Nolan@Perspectivelaw.com or call us today on 07 3839 7555.

The historical view of an “average” family  comprised of a husband and wife (one marriage only) and their natural born children (more commonly!). However, as society evolves, so too does this picture. These days, we see a great variety of participants that make up the family unit. If you have seen the Film Blended with Drew Barrymore you know what I mean (and if you haven’t you should, it is fabulous!). The marital arrangements can vary in small ways (a couple on their second marriage) or it can be very complicated (think the brady bunch). I have seen a situation in the estate of man who died intestate where consideration was given to a Wife, a girlfriend, an ex-wife and children from the various relationships. All of them were “eligible applicants” for the definition under the Succession Act, to bring a claim on the estate for further provision. As I said, it can get complicated! A thorough family history is needed when you are embarking on estate planning. A question that arises often in light of this, is who a child of the relationship for the purpose of estate planning (and ultimately, in the context of Family Provision Applications).

The Succession Act defines “child” (in relation to a deceased person) as any child, stepchild, or adopted child of that person. Child, rather obviously referring to your natural born issue. An adopted child too, is relatively straightforward as this refers to a child with whom you have taken formal, legal steps to recognise the parent/child relationship. Stepchild however is where the situation gets more complicated. A stepchild under the Succession Act is a child of a spouse of the deceased person where the relationship continued until the deceased persons death. Importantly, this relationship of stepchild-stepparent does not cease merely because the spouse predeceases the deceased person in question. Clear as mud! Another example from practice. A couple are on their first marriage, but the wife has a child from a previous relationship. The couple have no children of their own and the wife dies. As the relationship between the husband and wife subsisted at the time the wife dies, the wife’s child is a stepchild of the relationship, despite the fact that the wife pre-deceases the husband.  It will be important what contributions they each made to joint assets.

Another scenario that is becoming increasingly thought provoking, is the impact of the In Vitro Fertilization (“IVF”) process in defining children of a relationship. If the IVF process uses samples from the father, the child is a natural born child despite the artificial intervention. However, where a couple have used a donor sample, legal adoption may be required to perfect your child’s interest in the fathers’ estate. Another scenario. A couple use IVF, one party uses their own sample and the other party uses a donor sample (for simplicity, lets say the mother uses her own sample and the father a donor sample). The IVF is successful, and the child is born. Whilst the couple are in a relationship, the Succession Act protects this child’s status as a stepchild (a child of the relationship). However, should the relationship between the mother and father end, the child would no longer be a ‘child’ of the fathers for the purposes of family provision application.  This is often a surprise to our clients as they have, for all intents and purposes, been the parent to the child through out their life. Sadly, too, this realisation often comes when it is too late to resolve any potential problems.

What these examples really highlight is how important estate planning is, particularly in the context of blended families. If you are in doubt about what steps you can take to protect your child’s interest, or if you are unsure about your position as a child of a relationship, please contact us for a consultation on 07 3839 7555 or email Katherine.Blood@Perspectivelaw.com or Tony.Crilly@Perspectivelaw.com.

Planning the succession of your business may involve the structure of the ownership of all assets used and consideration of the tax effect on sale. When you are involved in a commercial property or business sale you must carefully consider if the “GST sale as a going concern” ruling applies as a simple way to save the cashflow effect of paying GST in addition to the Purchase price in their transaction. You need to obtain advice from your accountant and legal advisor to be absolutely certain the “going concern” exemption applies to your specific circumstances, as it is a complicated ruling. If you assume that the going concern ruling applies to all transactions it might be a costly mistake, subject to the burden of paying the GST under the contract. Perhaps it is best to provide an overview of the requirements of when a sale transaction is a “going concern” and in what circumstances it will be GST-free.

Part 1: When is a transaction a “going concern”

Under the A New Tax System (Goods And Services Tax) Act 1999 (“The GST Act”), a supply of a going concern is defined as an arrangement under which:

• a seller supplies to the buyer “all of the things” that are necessary for the continued operation of an enterprise; [emphasis added] and;
• “the seller carries on” or will carry on, the enterprise until the day of the supply (whether or not as part of a larger enterprise carried on by the supplier)

For the purpose of a commercial property, an enterprise is defined in the GST Act and it includes the provision of a lease, licence, or other grant of rights in a property. As this activity must be on a regular or continuous basis, the lease arrangement must be in writing, in the form of a Lease or a Commercial Tenancy Agreement. The lease document should be entered into on or before the date of the supply, in this case, the Contract for sale. 

The requirement that the enterprise “carries on” means that the seller, being the lessor, ensures that the lease continues at least until the settlement date and preferably for a period after that. 

The purchaser must be able to demonstrate a present right to possession of the premises as a necessary thing for the operation of the enterprise.

Part 2: When are such transactions GST-free?

The GST Act provides that a supply of a going concern is GST-free when:

• the supply is for consideration; and
• the seller is registered or required to be registered for GST; and
• the supplier and the recipient have agreed in writing that the supply is of a going concern.

It is important to ensure that the above requirements are fulfilled prior to signing a sale contract. Every commercial sale contract should be reviewed by the parties’ lawyers and accountants, before being signed. Evidence that both of the parties are registered for GST should be provided.

Lastly, it is recommended to have a fallback clause, to ensure that if the transaction is not GST-free, there is an agreed party which is responsible for the payment of GST. Generally, this will be the buyer, unless the seller has failed to provide or fulfil the requirements in order to be eligible under the GST Act.

Often there are issues that arise which can cause the sale to fall outside of the exemption including:

• failure to achieve registration for GST prior to the date of settlement (for example where settlement is brought forward);
• failing to document and sign a formal lease agreement;
• failing to supply “all of the things necessary” for continued carrying on of an enterprise (this might be an item of key equipment or fixture required to operate);
• incorrectly stating the entity that owns the property to be sold where ownership is recorded differently;
• having the same entity as buyer and assignee of a lease (you cannot lease to yourself).

The rulings are complicated and worthy of careful consideration. Make sure you consider other exemptions that apply such as rural farm land and always seek advice before you sign the contract.

If you have any questions about “going concern” or require any advice on a commercial property contract, please contact Jake Cho at jake.cho@perspectivelaw.com or Tony.Crilly@Perspectivelaw.com or give us a call on 07 3830 7555.

What do Trust deeds really do?

All trusts must have as a minimum, a Trustee, a beneficiary, Trust Property and the “Terms” of Trust on which the property (or asset) is held. This covers all types of trusts including “family trusts”, unit trusts in which each party holds a fixed interest in the income or capital and Self Managed Superannuation Funds, in which each member holds a “member benefits account” as a separate portion of the assets of the trust set aside for retirement. In each case the written terms of the trust are recorded in a signed document called a “Deed” by the person who settles the trust by providing the initial property of the trust (usually $ 10.00). The trustee accepts the appointment to act and the Principal or “Appointor” accepts the terms giving them the power to remove or appoint the Trustee. The precise wording of the deed is the basis for interpreting all of the powers of the trustee to distribute income and capital as well as how the trust will be managed, such as buying property or shares, selling, borrowing and final distributions at the end. The terms of the trust must be expressed with certainty and clarity, so the trustee knows to what extent they are authorised to do and the beneficiaries know when and how they can receive income or capital payments. It also governs what happens when you die and how you can allocate for tax purposes. If there are no clear rules then the ATO and any financial institution will use their position to limit what a trustee can do, often to the disadvantage of the beneficiaries.

Who keeps the trust deed and what if it is lost?

Usual practice requires at least three copies are created one for the client, one for the accountant and one for the legal advisor. This helps reduce the risk the original is lost.  If no Deed can be located this creates difficulty in providing evidence of the terms of trust. If there is a dispute between beneficiaries, then this can cause major legal problems. A practical solution might be to locate a true copy of the deed and execute a new Deed of Confirmation to ensure there is a clear record of the terms. It is crucial to consider if an application to a Supreme Court to approve the terms is required so there is no doubt in the eyes of the Commissioner.

If there is no document on which to base a confirmation this will often lead to a dispute between family members. Often this is a major problem for estate planning and administration, because it is not clear who the successor in control of the trust assets should be. The question arises whether the assets held by the trust should fall back into the estate of the person who originally contributed to the trust or continue to be held on trust for a wider class of individuals. The legal costs of resolving these questions can be significant and the result very uncertain.

Practical Solutions

You must do absolutely everything possible to locate the Deed. Find out the details of any lawyer, accountant, property conveyancer or financial planner that ever advised the family. Very often we track down a person who has been incorrectly named as controller or “Appointor” and get them to sign a Deed of Amendment to rectify the control. The cheapest and easiest solution is to locate any copy of the signed Deed and any variations that have occurred since the start. It is sometimes possible to get clear evidence of the version of the Trust deed used by the advisor at that time and use that as a basis for an application to confirm the terms. Evidence for payment of the deed to date it and letters received at the time assist. It is of no help to just pretend the deed is not lost as eventually there will be a day on which a bank, a court or an estate will require it to be produced. Deal with the issue now while you are able to follow up all possible leads and sources so if a replacement deed is at all possible to be confirmed, then it is done at a time when there are no beneficiaries fighting over an estate. It is also a major issue when dealing with the tax office especially if you own shares in the trust and want to allocate franking credits between beneficiaries for tax purposes. If you cannot prove the power to do so by the trustee based on the trust terms the Commissioner will take a view about which beneficiary is deemed to receive what proportion of income on which they are taxed.  The whole point of trusts is asset protection, the ability to invest collectively and the power to distribute in a way that saves tax. If you want a review of your trust deeds in the context of your estate plan please contact me at Tony.crilly@perspectivelaw.com or my direct line 07 3317 4312.