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RE EM McPHERSON SETTLEMENT
|Harris J
76 VR 360
RE EM McPHERSON SETTLEMENT Supreme Court of VictoriaHarris J 23 April, 2 September, 4 December 2024[2024] VSC 744Trust and trustees — Variation of trust — Arrangement — Application for approval of proposed arrangement to vary terms of family trust — Extension of vesting date — Substitution of statutory perpetuity period for common law perpetuity period — Enlargement of class of beneficiaries — Variations to avoid adverse taxation outcomes — Whether variations would constitute trust resettlement — Whether variation to trust deed to introduce general power of amendment for trustee allowed — Whether proposed arrangement for benefit of relevant beneficiaries — Whether proposed arrangement fair and proper — Trustee Act 1958 (Vic), ss 63, 63A — Perpetuities and Accumulations Act 1968 (Vic), s 5.
The trustee of a discretionary family trust applied to the Court pursuant to s 63A, alternatively s 63, of the Trustee Act 1958 (Vic) (Trustee Act) for approval of a proposed arrangement involving changes to the trust deed. The proposed changes included extending the vesting date; widening the class of beneficiaries to include corporations and trusts in which individual beneficiaries had an interest; giving the trustee powers to determine, and to stream, trust income; allowing the creation and use of sub-trusts; and the inclusion of a general power to amend the trust terms. According to the trustee, the changes were primarily proposed to manage taxation liabilities and for estate-planning purposes. Adult beneficiaries had consented in writing to the proposed changes; minor beneficiaries could not.
