Family Trust - Update to allow Sole Trustee

Each State and Territory of Australia has specific legislation which says that a Family Trust that was set up with two (2) or more Trustees cannot later be amended so that the Trust has less than two (2) human trustees, unless the Family Trust Deed specifically allows you to do so.

If you want to change your Trust Deed so that you only have one Trustee but:

1. your Trust Deed expressly says that you cannot vary the Trust to have less than two (2) human Trustees, or
2. your Trust Deed is silent on this issue,

then this is the document for you.

Before using this document, legal advice should first be obtained on whether your current Family Trust Deed (as amended) can be varied in this way.

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Trust Details
• What does “based in” mean?
• Where do I find the date?
Variation Of Trust
• What does this mean?
Date of variation
• Where do I find the date?
Settlor
• How do I know who the Settlor is?
Guardian
• How do I know who the Guardian is?
Appointor
• I don't think my trust has an Appointor?
• Is the Appointor the same as the Guardian?
• My trust doesn't have an Appointor. It has a Moderator or a Controller.
Appointor details
• Where do I find the Appointor's name?
• Is the Appointor the same as the Guardian?
• What, no Appointor? Moderator? Nothing?
Trustees
• A Company as Trustee
• A Human as Trustee
Trustee’s Power
• WARNING on amending a trust deed
• Where do I find this information?
Guardian's Consent
• Where do I find this information?
Appointor’s Consent
• Where do I find this information?
Clause number requiring multiple Trustees
• Where do I find this information?

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Trust Details

• What does “based in” mean?

  You need to find out where the Trust was established. Have a look in the Trust Deed for a clause saying which State’s law governs the Trust Deed. It might be called something like “Proper Law” or “Governing Law” and will say, for example, “This Deed is governed by the law in force in ... Western Australia”.

  This hint is provided by Law Central Legal.

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• Where do I find the date?

  Usually, the date is put at the top of the very first page of the Trust Deed, but sometimes it’s at the end of the Trust Deed where people sign. For example, it might say “Dated this 23rd day of October 2010”.

  This hint is provided by Law Central Legal.

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Variation Of Trust

• What does this mean?

  Did you ever vary, change or update your Trust Deed? If you did, you should have a copy of a “Variation of Trust Deed” or “Trust Deed Update” or similar.

  This hint is provided by Law Central Legal.

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Date of variation

• Where do I find the date?

  Usually, the date is put at the top of the very first page of the Trust Deed, but sometimes it’s at the end of the Trust Deed where people sign. For example, it might say “Dated this 23rd day of October 2010”.

  This hint is provided by Law Central Legal.

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Settlor

• How do I know who the Settlor is?

  Usually, the very first page of the Trust Deed tells you who the Settlor is.
  You should see something like:
  “John Smith of 1 Jones Street, Sydney (“Settlor”)
  or
  “ABC Pty Ltd of 1 Jones Street, Sydney (“Settlor”)

  This hint is provided by Law Central Legal.

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Guardian

• How do I know who the Guardian is?

  Usually, the very first page of the Trust Deed tells you who the Guardian is.
  You should see something like:
  “Tom Smith of 1 Jones Street, Sydney (“Guardian”)
  or
  “ABC Pty Ltd of 1 Jones Street, Sydney (“Guardian”)
  

  This hint is provided by Law Central Legal.

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Appointor

• I don't think my trust has an Appointor?

  You may be right.
  
  If your Trust Deed is quite old (maybe from the 1980's or before) there may not be an Appointor or Guardian.
  
  If this is the case you need to speak to a lawyer. Law Central Legal is happy to help you. Call on 08 9476 4999.

  This hint is provided by Law Central Legal.

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• Is the Appointor the same as the Guardian?

  Sort of.
  
  Strictly speaking, an Appointor and a Guardian have different jobs. However, in most modern Trust Deeds the Appointor and the Guardian are the same person.

  This hint is provided by Law Central Legal.

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• My trust doesn't have an Appointor. It has a Moderator or a Controller.

  I am sorry to hear that.
  
  You need to get a lawyer to update your Trust Deed. Don't go any further.
  
  Your Moderator or Controller (or other strange title) probably does the same job as an Appointor or Guardian. However, there may be important differences. You should contact Law Central Legal on 08 9476 4999 and they can help you.
  

  This hint is provided by Law Central Legal.

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Appointor details

• Where do I find the Appointor's name?

  You need to look in the Trust Deed.
  
  Usually, the Appointor is found in the:
  1. Definitions section; or
  2. Schedule, at the back of the deed.
  

  This hint is provided by Law Central Legal.

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• Is the Appointor the same as the Guardian?

  Sort of.
  
  Strictly speaking, an Appointor and a Guardian have different jobs. However, in most modern Trust Deeds the Appointor and the Guardian are the same person.

  This hint is provided by Law Central Legal.

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• What, no Appointor? Moderator? Nothing?

  I am sorry to hear that.
  
  You need to get a lawyer to update your Trust Deed. Don't go any further.
  
  Your Moderator or Controller (or other strange title) probably does the same job as an Appointor or Guardian. However, there may be important differences. You should contact Law Central Legal on 08 9476 4999 and they can help you.
  

  This hint is provided by Law Central Legal.

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Trustees

• A Company as Trustee

  Select the "Company" button at the top of the page.
  
  Put in the full name of the Company. For example, "Smith Enterprises Pty Ltd".
  
  Type in the ACN (Australian Company Number). If you don't know your ACN, WizardDocs leaves space for you to write it in later.
  

  This hint is provided by Law Central Legal.

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• A Human as Trustee

  Select the "Human" button.
  
  Put in the human's full name and address.

  This hint is provided by Law Central Legal.

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Trustee’s Power

• WARNING on amending a trust deed

  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.

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• Where do I find this information?

  You’ll need to read your Trust Deed to see if this is one of the Trustee’s powers. For example, In the LawCentral Family Trust Deed, the power is contained in a clause called “How do I vary this Family Trust?” It says “The Trustee may amend the terms of this Deed with the consent of the Guardian.”

  This hint is provided by Law Central Legal.

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Guardian's Consent

• Where do I find this information?

  You’ll need to read your Trust Deed to see if the Trustee needs the consent of the Guardian. For example, In the LawCentral Family Trust Deed, the requirement is contained in a clause called “How do I vary this Family Trust?” It says “The Trustee may amend the terms of this Deed with the consent of the Guardian.”

  This hint is provided by Law Central Legal.

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Appointor’s Consent

• Where do I find this information?

  You’ll need to read your Trust Deed to see if the Trustee needs the consent of the Appointor. For example, In the LawCentral Family Trust Deed, the requirement is contained in a clause called “How do I vary this Family Trust?” It says “The Trustee may amend the terms of this Deed with the consent of the ... (in this case it is the Guardian)...”

  This hint is provided by Law Central Legal.

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Clause number requiring multiple Trustees

• Where do I find this information?

  You’ll need to read your Trust Deed to find this out. For example, In the LawCentral Family Trust Deed, the relevant clause is called “Is one trustee enough?”

  This hint is provided by Law Central Legal.

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This document has been prepared by the law practice Law Central Legal

Liability limited by a scheme approved under Professional Standards Legislation