Why Your Family Trust Will Not Follow Your Will
A will and a family trust deed are separate instruments. Where someone controls a discretionary family trust, the assumption that a well-drafted will settles the question of what happens to their assets on death is not correct. For assets held personally, that assumption is broadly correct, setting aside any family provision claims. For assets held in a discretionary trust, it is wrong, and a recent Supreme Court decision shows how that mistake can persist for more than a d
When the Trustee Does Not Consider: Campion v Mainray Nominees
The Talgarno Trust was a discretionary family trust established in 2004 by the late Mr John Stoate. It held all the issued shares in a company that operated a pastoral lease in regional Western Australia. Mr Stoate had three children and a number of grandchildren. The trust deed defined the grandchildren as "primary beneficiaries" and a wider class, including his children, as "general beneficiaries." The trustee, Mainray Nominees Pty Ltd, held an absolute discretion to distri
The Trust Deed No One Reviewed: Three Structural Defects That Took 39 Years to Discover
Giuseppe Vartuli was a greengrocer who provided for his family through hard work and careful planning. In 1986, he settled a discretionary family trust, naming himself as both settlor and appointor. A corporate trustee, Deemhire Pty Ltd, held commercial property in Cabramatta and Liverpool along with a portfolio of listed shares. Four children, a growing number of grandchildren, and eventually great-grandchildren stood to benefit from the trust. For 25 years, nobody had reaso
Is Your Family Trust Protected?
What Caldwell v Caldwell Means for Business Owners Many Esperance businesses operate through discretionary trusts, whether in agriculture, retail, services, or property. These structures are a standard part of business and succession planning, designed to protect assets, manage tax, and facilitate the eventual transfer of the business to the next generation. But how robust are these structures when a family member divorces? Can a former spouse claim a share of trust assets ac
Force Majeure and the Iran Conflict
What Esperance Businesses Need to Know About Their Contracts Diesel prices have surged. Fertiliser costs have risen sharply. Freight rates are climbing. Some suppliers have started issuing force majeure notices, stepping back from contractual commitments on the basis that the Iran conflict has prevented them from delivering. Whether your business relies on fuel for farm machinery or road transport, fertiliser for the approaching cropping season, building materials for a const
