Australian trust law

Australian trust law is the law of trusts as it is applied in Australia. It is derived from, and largely continues to follow, English trust law, as modified by State and Commonwealth legislation. A number of unique features of Australian trust law arise from interactions with the Australian systems of company law, family law and taxation.

General law of trusts

A trustee has a legal interest in the property of the trust. The beneficiary has an equitable interest. If a person holds both the legal interest and the equitable interest, then the equitable interest will cease to exist and a single legal estate will subsist.^[1] see also Stickney v. Keeble [1915] AC 386 Swarb Law UK

Equity recognizes cases where a party places trust/confidence in another, these relationships are protected by equity and are called fiduciary relationships. The critical feature of fiduciary relationships is that the trustee undertakes to act for or on behalf of the beneficiary in the exercise of a power or discretion which will affect the interest of the trustee in a legal or practical sense.^[2][3] In the exercise of a fiduciary duty, a trustee must not take a benefit from their position as trustee unless the beneficiary or beneficiaries have given their informed consent.^[4]

Common Australian trusts

There are a variety of trusts recognised and used in Australia, including unit trusts, discretionary trusts, hybrid trusts, and testamentary trusts.

A discretionary trust where the trustee has made a family trust election is often referred to as a "family trust" in Australia. The term 'discretionary trust' does not refer to a type of trust, but is rather a term referring to the "strong position occupied by the trustee and the instability of the interests and prospective interests of [the beneficiaries]".^[5] Family trusts provide flexibility in relation to distributions of income and assets among members of the family, while at the same time permitting the family to maintain either direct or indirect control over funds or other assets that have become the property of the family members.

Streaming a category of trust income to a particular beneficiary provides tax planning opportunities. For example, foreign tax credits can be best utilised by resident individual beneficiaries with high marginal tax rates and net capital gains can be best utilised by beneficiaries with carried forward losses, low income beneficiaries with carried forward revenue losses and minors able to receive excepted trust income. However, discretionary trusts are usually unsuitable for accumulation of profits as the undistributed income will generally be taxed at 45%.

Family trusts are often used to distribute income to beneficiaries in an attempt to achieve the most desirable tax outcomes available to the members of the trust. Discretionary trusts also protect assets when individual members become insolvent or bankrupt. Asset protection is also extended to other types of liabilities.

The power of appointment of the trustee of a discretionary trust is held by the Appointor. In some trust deeds the person holding the power of appointment of the trustee is called the Custodian or the Principal of the trust. The Appointor is usually a natural person but can also be a company. Generally, upon the death of the Appointor, in the absence of an alternate appointment in the trust deed, the personal legal representative (executor) of the Appointor becomes the Appointor. The real power in relation to the control of the trust rests with the Appointor because of the ability to terminate the appointment of the trustee and appoint a different trustee. This must be kept in mind when considering succession and estate planning involving assets held in a discretionary trust.

Creating a trust

A trust can be intentionally created during the settlor's life (inter vivos) by declaration or transfer.^[6] A deceased estate is a testamentary trust which automatically arises on the death of the testator. Courts may also create trusts, such as constructive trusts, as an equitable remedy.

Declaration of trust

A settlor can declare him/herself trustee of his/her own property. The settlor already holds title to the property and all that needs to be done is to make a valid declaration. However a declaration of trust will not be allowed out of an invalid gift.

Formalities relevant depend on nature of trust property. A trust of land must comply with statutory requirements based on the Statute of Frauds 1677.

Where the trust is created by virtue of a contract made as consideration for marriage, or a contact which concerns any interests in land, s 4 of the Statute of Frauds (or their equivalent legislation in other states)^[7] may operate to void such a contact unless it is evidenced in writing and signed by both parties to be charged.^[8]

Trusts created by transfer

A settlor can create an express trust by transferring property to a trustee to hold on trust. 2 requirements must be satisfied.

a. A Declaration of trust - must establish that the recipient of the property was intended to take the property in the capacity of trustee and not beneficially. The words used by the settlor will be construed in the context of the transfer itself.^[9]

b. Valid transfer of the intended trust property to the intended trustee.^[10]

Trusts of land created by transfer must be evidenced in writing, as required by provisions derived from the Statute of Frauds 1677. See also Conveyancing Act 1919 (NSW) s23C.^[11]

A trust that fails to meet the requirement to transfer property in writing will not be void, rather it will be unenforceable.^[12]

References