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Key decisions

  • Re McGowan & Valentini Trusts [2021] VSC 154
  • Richardson v Richardson [2021] NSWSC 353
  • St John v St John [2021] NSWSC 399
  • McFarlane v McFarlane [2021] VSC 197
  • Re Sheehan [2021] QSC 89

Trusts established with non-existent trustee amended after the vesting date

The apparent trustee of two discretionary trusts sought judicial advice in Re McGowan & Valentini Trusts [2021] VSC 154 (Macaulay J) about the existence and terms of the trusts. Each trust named a corporate trustee which wasn’t registered until 19 months after the trusts were settled in 1977. The Court observed that ‘[e]quity will not allow a trust to fail for want of a trustee because, generally, that would be contrary to the settlor’s intention … provisions in a trust deed which permit additional or substitute trustees to be appointed allow one to infer that the settlor did not hold [the] intention [that the designated trustee must act] in which case the preferable inference is that the settlor did not want the trust to fail for lack of a trustee’ (at [37]). A person may become a trustee by conduct in administering the trust. The Court held that ‘immediately upon its incorporation, [the named trustee] took on the custody and administration of the property settled upon the Trustee under the 1977 Deeds and thereby became subject to all the liabilities of an express trustee of the Trusts set out in those deeds’ (at [60]). 

Each trust vested when the named beneficiary turned 30 years. This occurred in 1988 and 1991 respectively. In 1991 the settlor, corporate trustee and the original beneficiary for each trust amended the trust deed for the respective trust by widening the class of discretionary beneficiaries and extending the vesting date. Thereafter, the trustee dealt with the trust properties as if the trusts had continued. The Court considered whether the continued operation of the trusts after the vesting permitted the trustee to amend the trust deeds. The Court noted that nothing contained in the trust deed prevented the continuation of the trusts beyond the vesting pending the winding up of the trusts (at [105]). It observed that the original beneficiary for each trust, who were both of full age and capacity, actively consented to the continuation of the trusts and their amendment. The Court concluded that the vesting neither brought the trust to an end nor brought into existence any new trust (at [106]).

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