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Jurisdiction: Australia Wide
This document should only be used where the trust deed has a sufficiently wide variation or amendment clause in the trust deed enabling the trustee to vary the trust to exclude a foreign person from being a beneficiary and receiving a benefit from the trust. Legal advice should be sought on this issue.
The document excludes a "foreign person" from certain beneficiary classes, depending on the trust's definition of "beneficiaries".
The deed will not specifically remove any named "foreign beneficiaries" i.e. "Ivan Minsk" from the Trust. For NSW Surcharge land tax and surcharge purchaser duty purposes, Commissioner's practice note CPN004 states that "It is not sufficient that named beneficiaries are merely prevented from receiving distributions, e.g. through a general clause excluding foreign persons from being beneficiaries". If your Deed has foreign persons who are named beneficiaries, legal advice should be obtained.
You can choose whether to make the variation/amendment contained in this document "irrevocable" and not capable of future change. Some State Revenue Departments (for example New South Wales Revenue Ruling No. G010 Version 2) may require that the variation contemplated in this document be irrevocable and incapable of future change in order to avoid the surcharge duties.
Please obtain legal advice as to whether you require this amendment to be irrevocable for your personal circumstances.
WARNINGS
This deed is suitable for New South Wales. For all other states, we recommend obtaining legal advice before using this document.
This document is not suitable if the "foreign person" beneficiary is a named or specified beneficiary in your trust deed. If your trust deed specifically names a person or entity that is a "foreign person" under the relevant legislation as a beneficiary of the trust, then we recommend you see a lawyer to have a custom document drafted.
You can choose whether to make the variation/amendment contained in this document "irrevocable" and not capable of future change. Some State Revenue Departments (for example New South Wales Revenue Ruling No. G010 Version 2) may require that the variation contemplated in this document be irrevocable and incapable of future change in order to avoid the surcharge duties.
Please obtain legal advice as to whether you require this amendment to be irrevocable for your personal circumstances.
Checklist is not available for this document.
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Recent case law has held that should the power to amend the trust deed be not sufficiently broad, then the trustee may not be allowed to amend the deed in a particular way resulting in the amendment being invalid.
The case of Mercanti v Mercanti [2015] WASC 297 highlights this point.
In that case amendments to 2 trusts were considered. Each trust deed had a different variation clause. One variation clause was broader to the extent that it allowed the trustee to “vary all or any of the trusts, terms and conditions”. The other variation clause was restricted to allowing the trustee to “vary all or any of the trusts”.
The amendments considered in that case were allowed in the trust with the broader variation clause, but not the other.
Please seek legal advice on the important issue of whether the variation clause in your deed allows the amendment contemplated.
This hint is provided by Law Central Legal.
In the current Law Central Family Trust, it is clause 22 and is called "How do you vary this Family Trust?".
This clause begins with the following:
"The Trustee may amend the terms of this Deed with the consent of the Guardian......"
This hint is provided by Law Central Legal.
This Deed of Variation does not alter the named Beneficiaries of your Trust Deed.
Under Commissioner's practice note CPN 004, any named beneficiaries who are foreign persons must also be specifically removed from the Trust Deed as beneficiaries.
If your Trust Deed contains any foreign persons as named beneficiaries, you will need to remove those people in addition to preparing this Variation Deed. Contact Law Central Legal on 08 9476 4999 for support with this.
This hint is provided by Law Central Legal.
We recommend that you obtain legal advice on whether you require the variation/amendment contained in this document to be irrevocable for your personal circumstances.
This hint is provided by Law Central Legal.
To start with you need to have your original Trust Deed to obtain the answers to these questions:
1. Does the Trust Deed contain a clause allowing the Trust Deed to be varied to exclude a beneficiary from benefiting from the trust?
3. What is the name of the Trust?
4. When was the Trust Deed signed? (i.e. what is the date of the Trust Deed?)
5. Has the Trust Deed been amended? If so, on what dates?
6. Who is the Trustee(s) of the Trust?
7. Who is the Controller (i.e. the Guardian) of the Trust?
The name of the Trust and the date the Trust Deed was signed are generally on the front of the Trust. If not, it may be on the last page where the signing clauses are.
Generally in the first few pages, there is a definition section, so the names of the Trustee and the Controller should all be there.
The answers to the above may also be in a Deed of Variation or Deed of Amendment (if any).
8. What is the last whole clause number of the Trust Deed? (that is, the original Trust Deed, but include any additional clauses which may have been inserted into the Trust Deed by way of any Deeds of Variation or Deeds of Amendment. For example, if your original Trust Deed ended at clause 12 and a Deed of Variation inserted a new clause 13 into the Trust Deed, the last whole clause number of the Trust Deed is 13.)
This hint is provided by Law Central Legal.
Every Trust has a name. The name may be on the cover page, front page or in the last few pages of the Trust Deed.
The Trust name is often named after the person that asked for the Trust in the first place. For example, if the accountant set up a Trust for Mr Smith then the Trust may be called the "Smith Family Trust".
This hint is provided by Law Central Legal.
Generally you will have another document that says eg: "Deed of Amendment to the Johnson Family Trust" or "Deed of Variation to the Johnson Family Trust". You need to note all amendments or variations that have been made to the Trust Deed. If you are not sure, you may need to seek legal advice.
This hint is provided by Law Central Legal.
The date of the Deed of Amendment or Deed of Variation is generally on the front of the document. If not, it may be on the last page where the signing clauses are.
This hint is provided by Law Central Legal.
Generally you will have another document that says eg: "Deed of Amendment to the Johnson Family Trust" or "Deed of Variation to the Johnson Family Trust". You need to note all amendments or variations that have been made to the Trust Deed. If you are not sure, you may need to seek legal advice.
This hint is provided by Law Central Legal.
The date of the Deed of Amendment or Deed of Variation is generally on the front of the document. If not, it may be on the last page where the signing clauses are.
This hint is provided by Law Central Legal.
You can have a Human Trustee or a Company Trustee, or you can have both at the same time.
If the Trustee is Human: insert the Trustee’s first name into the First Name field, the Trustee’s middle name into the Middle Name field and the Trustee’s surname into the Surname field.
If the Trustee is a Company: insert the name of the Company into the Company Name field.
Insert the ACN (Australian Company Number) into the ACN field.
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No. Only legal entities such as a human or a company can enter into an agreement.
Eg: Olympus Pty Ltd trading as Olympus Seafood. "Olympus Seafood" is a business name, whilst "Olympus Pty Ltd" is the legal entity capable of entering into contracts.
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Under the Corporations Act 2001, every company in Australia has been issued with a unique nine-digit number known as an Australian Company Number (ACN), which must be shown on a range of documents. The purpose of the ACN is to ensure adequate identification of companies when transacting business. New companies are issued with numbers by the Australian Securities & Investments Commission (ASIC) upon registration.
A company's ACN should appear on all of its "public documents" and "eligible negotiable instruments," including but not limited to the following:
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This is the person or entity named in the Trust Deed whose permission is required to vary the Trust Deed. The Controller is usually referred to as the "Guardian".
This hint is provided by Law Central Legal.
The Controller is usually a human, and can be one or more of the Human Trustees (or one or more of the directors of a Company Trustee).
Insert the Controller's first name into the First Name field, the Controller’s middle name into the Middle Name field and the Controller's surname into the Surname field.
This hint is provided by Law Central Legal.
In the current Law Central Family Trust, clause 22 is called "How do you vary this Family Trust?".
This clause begins with the following:
"The Trustee may amend the terms of this Deed with the consent of the Guardian......"
Check the definitions at the front of the Trust Deed for the name of the Guardian.
This hint is provided by Law Central Legal.
You need to work out what is the last whole clause number of the Trust Deed.
Look at the original Trust Deed, but also include any additional clauses which may have been inserted into the Trust Deed by way of any Deeds of Variation or Deeds of Amendment.
For example, if your original Trust Deed ended at clause 12 and a Deed of Variation inserted a new clause 13 into the Trust Deed, the last whole clause number of the Trust Deed is 13.
This hint is provided by Law Central Legal.
This document has been prepared by the law practice Law Central Legal
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