Amending your family trust and Clark’s case
No doubt, your solicitor or accountant may have said to you “No worries – after Clark’s case, any amendment is a piece of cake – no value shifting problem, no CGT problem and no stamp duty problem!”
Such advice is the problem. Clark’s case did not consider issues such as whether the variation changes the nature and purpose of the trust, whether the variation is made in accordance with the provisions in the trust deed, how changes to the trust Deed itself must be made, changes to the process in regards to the appointor provisions, the impact of family trust elections, whether or how the removal of default beneficiaries can be done with no adverse stamp duty problems, extending the vesting date, the governing law of the trust, the impact of the location of the trust property and the domicile of the trust.
These all point to the one conclusion: changing trust deeds should be done with care after all your lawyer’s questions about the issues at play have been answered.