- Making variations to legal documents
Whether you are varying the terms of a trust, changing a trustee of a trust or the powers of trustee, it is critical to follow the correct procedure set out in the governing document. This equally applies to other legal documents including self-managed superannuation funds, discretionary trusts, hybrid trusts etc.
When proposing to make a variation to a deed, it is important that this be done via a deed and not minutes of a meeting with parties resolving to make the change. In Batmor Mortgages Pty Ltd v Arcuri  NSWSC 84 the Court was required to consider the validity of a resolution which changed the trustee of a trust.
Should the parties have changed the trustee by way of deed, as was the case in another instance in this matter, it may have eliminated the need for litigation arising from ambiguities in relation to the variation.
Cleardocs products use deeds to effect changes to the terms of deed, powers of the parties and when changing the trustee of a trust.
- Trust documents
It is important that trust deeds are updated frequently to account for changes in the law and to prevent unfavourable outcomes which could have been avoided. Once such example is in the decision in BRK (Bris) Pty Ltd v FC of T (BRK) which deals with distribution of trust income as further highlighted by an ATO publication on trust income distribution arrangements.
An invalid distribution from a trust can have a number of negative consequences, including that the income could be taxed at the highest marginal rate in the hands of the trustee, or in the hands of one or more beneficiaries who receive the distribution under a default distribution clause.
In BRK, the trustee nominated two companies as general beneficiaries under provisions of the trust deed and made several trust distributions to those companies. The ATO argued that the distributions were invalid on the basis that the trustee did not have the power under the deed to make such a nomination. The Court agreed with the ATO and decided that the trustee could not make the relevant distribution. Upon an interpretation of the relevant clauses in the deed, the Court ruled that all undistributed income would be assessed against the trustee at the highest marginal rate.
The issue in BRK is addressed in the Cleardocs deed (purchased as part of the standard Discretionary (Family) Trust or Discretionary Trust – excluded beneficiaries document packages). These deeds state that if the trustee fails to exercise its discretion to accumulate income by 30 June, then the income will be held in trust for the persons and subject to the rules in the default distribution clause. The Cleardocs default distribution clause then sets out the default position for 30 June income distributions. Therefore avoiding the possibility that income would be taxed at the highest marginal rate should a distribution fail.
Taking advantage of applicable tax laws and the Bamford decision
The Bamford decision allows a trustee to adopt a different definition of income in the trust's deed, either by stating that definition in the deed, or by the deed granting the trustee an express power to adopt a different definition in respect of different periods.
Deeds which confer power on the trustee to adopt a different definition should also heed the decision of Forrest v Commissioner of Taxation (Forrest), which read down the trustee’s powers in a clause designed to utilise the Bamford reasoning. In Forrest, the court held that such a power was a power to make an administrative determination only, and that it was not an unconfined discretion to determine whether a receipt represents realised or unrealised capital gains.
Several clauses in the Cleardocs deed have been redrafted with Bamford and Forrest in mind, granting the trustee the flexibility to determine whether receipts are to be treated as capital or income. The Cleardocs deed grants the trustee the power to determine whether to adopt an alternative definition in respect of a particular income year, which is unconfined and not merely an administrative power.
Addressing the risks regarding foreign trusts and surcharge duty and land tax
The Cleardocs Discretionary Trust - excluded beneficiaries document package allows you to choose whether you wish to limit distributions of income and capital, by excluding foreign persons as beneficiaries.
You can read about the additional duty and land tax surcharges for foreign purchasers of land in Australia in our earlier ClearLaw article.
Plain language and Mercanti’s case
The recent decision of the Western Australia Court of Appeal in Mercanti v Mercanti 2016 WASCA 206 (Mercanti) confirms the importance of having a trust deed which uses plain language.
In Mercanti the Court was required to consider the validity of the variation of the schedule to the trust deed (which changed the trust's Appointor) and whether the trustee was allowed to make such a variation in the first place. Ultimately the decision turned on the wording of the trust deed and the Court's interpretation of the word "hereinbefore". The wording of clause 28, the clause in dispute, allowed the trustee to revoke, add to or vary 'all or any of the trusts terms and conditions hereinbefore contained'.
The argument was whether "hereinbefore" meant:
- The trustee could only vary terms and conditions appearing before that clause (meaning the trustee could not vary the schedule); or
- Whether "hereinbefore" was not intended to operate as a word of limitation.
It was argued that because the schedule appeared after this clause, it was not a term or condition "hereinbefore" contained.
The trial judge concluded that the variation of the Appointor in the schedule was valid and the change was within the trustee's power.
On appeal, the Court held that the wording of the empowering clause did not restrict the trustee's ability to vary the Appointor in the deed. In particular:
- The majority of judges pointed out that the Appointor was defined in the beginning of the deed as including the person named in the schedule. This clause precedes the empowering clause and is therefore "hereinbefore" contained.
- The President of the Court of Appeal made a similar finding, but found that the word "hereinbefore" was in fact a word of limitation and did mean that the trustee could not amend those clauses appearing after clause 28. However, because the definition of the Appointor included the person in the schedule – the trustee could still vary the Appointor.
The use of plain language is designed to avoid matters of interpretation needing to be determined by successive judicial decisions at great cost to the parties. The Cleardocs deeds are constructed using plain English and clear language therefore avoiding issues such as those raised by Mercanti.
- SMSF Documents
Wording in Death Benefit Nominations (DBN) or Death Benefit Agreements (DBA)
If the intention of the documents is to distribute the member’s death benefits to the member's 'legal personal representative' – then using the words 'executors and estate, 'trustee of the deceased estate' etc in the clause which makes the distribution would render the document invalid. The law requires, and the Queensland Supreme Court has confirmed in Munro & Anor v Munro & Anor  QSC 61, that the document must refer to a 'legal personal representative’ in the relevant clause and not anything else. 
The Cleardocs DBN and DBA use the words ‘legal personal representative'.
Beneficiary predeceasing a member
Some DBN’s and DBA’s do not allow for different tiers of distributions – for example - where a first level beneficiary predeceased the member, then it is prudent for a DBN/DBA to allow for distributions to be made to a second level beneficiary. If a DBN/DBA does not allow for this contingency, then it would render the entire document of no effect and a waste of time and money.
The Cleardocs DBN and DBA use a two tier distribution mechanism.
- Company documents
Not up-to-date with changes in law
Documents which are not updated can impose unnecessary restrictions on a company. For example, the sections of a Constitution which deal with the ability to declare and pay dividends are informed by section 254T of the Corporations Act 2001 (Cth). Section 254T was last changed on 28 June 2010 to:
- remove the requirement for a company to pay dividends only out of its ‘profits’; and
- allow a company to pay dividends out of net assets, provided the interests of creditors and shareholders are protected.
The Cleardocs Constitution was updated when this change was first introduced. However, companies which have not updated their Constitutions since 2010 are likely to have an unnecessary restriction on the declaration of dividends in place.
More information from Maddocks
For more information please contact Maddocks in Melbourne (03 9288 0555) and ask for a member of the Commercial Team.
More Cleardocs information on related topics
You can read earlier ClearLaw articles on a range of trust topics.
Order Cleardocs discretionary trust packages
- Discretionary (Family) Trust set up
- Discretionary Trust — excluded beneficiaries (which provides options to exclude foreign and/or non blood beneficiaries from the trust set up)
- Change of Trustee Discretionary Trust
- Discretionary (Family) Trust Minutes & Resolutions
 2001 ACT 4111.
 Taxpayer Alert TA 2016/12.
  FCAFC 6.
 Sections 55A(1) and 31 of the Superannuation Industry (Supervision) Act 1993 (Cth) and regulation 6.22 of the Superannuation Industry (Supervision) Regulations 1994 (Cth).