Passing the baton -trusting into the future

  • ·         employment of any beneficiary other than on arm’s-length terms
  • The Guardian’s consent to income distributions occurs in some deeds, but this is fairly rare (presumably because of the potential practical problems it could cause with section 99A[5]).

    2.4         Succession of Appointors and Guardians

    In most deeds, the Appointor can appoint a successor to that power in writing at any time during their lifetime or, upon death, in their Will. In default of appointment, most deeds provide that the powers pass to the legal personal representatives of a deceased Appointor. If no provision for succession is made in the deed, the relevant State Trustee Acts vest that power in the trustee.[6]

    If there is a Guardian, the deed usually makes similar provision for succession. However there is no alternative provision for Guardian powers in the Trustee Acts[7] such as exists for Appointor powers. The drafting of the deed is therefore of critical importance for any succession planning involving the use of a Guardian power.

    Where there is more than one Appointor or Guardian, unless expressly dealt within the deed, the appointment is a joint appointment. Accordingly, upon the death of one Appointor or Guardian, the survivors exercise the relevant power, with the last survivor being the relevant person for subsequent succession issues.

    In many deeds, the issue of succession of the Appointor or Guardian is limited to death and does not deal with incapacity. It can be expected that this deficiency in drafting will improve into the future.

    2.5         Multiple Appointors

    Appointing the children of deceased parents jointly to be Appointors to a family discretionary trust effectively means that before a new trustee can be appointed to the trust, the unanimous approval of all three children is required (see further below).

    Although the appointment of children as joint Appointors in succession to the parents is a common (and usually desirable) estate planning step, it is only effective in those circumstances where the existing trustee company is already a suitable vehicle to protect the interests of all beneficiaries. In other words, the benefit of joint Appointors is that the trustee cannot be changed without the unanimous approval of the Appointors. If the control structure embodied in the trustee is unsatisfactory at the time of succession,  making the siblings joint Appointors may simply have the effect of locking in that structure.

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