In recent months, we have been approached by several accountants to either rectify mistakes in Trust Deeds, update Trust Deeds, or reconstruct lost Trust Deeds. Apparently, this is at the behest of banks which are starting to become a great deal more stringent in their review of their customers’ Trust Deeds.

In some cases, this can be an easy fix as certain trust updates are fairly common, such as:

• Changing the Appointor/Guardian of a Family Trust;
• Changing the Trustee of a Family Trust;
• Streaming & Bamford Updates for Family Trusts;
• Change of Name of Family Trust;
• Vesting of a Family Trust;
• Excluding Foreign Persons from a Family Trust ; and
• Updating the Rules of an SMSF.

For other circumstances that are more complex, such as adding or removing beneficiaries, reconstructing lost trust deeds or rectifying errors in the trust deed, it is best to have a lawyer review your client’s trust deed and draft a customised document.

To help you know here to help you stay on top of your Trust Deed knowledge. We have taken some of the Top 10 frequently asked areas of Trust:

1. Adding and excluding beneficiaries

We find that many people are intimidated by this process. However, this is not necessary. Removing and adding beneficiaries does not have to be a complicated process. When it comes to adding, this will depend on the wording of the personal Trust deed (something a lawyer knows best), we recommend preparing a deed variation as this gives the trustee permission to amend and change trusts at the trustee’ discretion. For excluding trusts, look to the trust deed first to assess how the trust can be changed in relation to beneficiaries. Then consider if the beneficiary is renouncing his or her interest as a beneficiary (can be mandatory if the change is made in conjunction with a Centrelink Declaration). Otherwise, consider if removal can be acquired when a Trustee makes a declaration that a particular Beneficiary will no longer be a beneficiary.

1. Amending trustees’ powers.

There may be times in your life when you amend powers in your trust – planning for succession, changing an appointor or removing a beneficiary. When we change or administer a trust, think about whether they are an individual or a corporation that has the power to amend. Typically, an appointor can amend powers in a trust, but sometimes there may be ambiguity in the trust deed and the trustee may be unsure as to the correct interpretation to be placed on a particular provision of the deed (if this is you, we recommend getting directions from the Court about the interpretation of a trust deed).

1. Bamford amendments (for older or more complex deeds);

The amendments stem from The High Court’s changes to the Tax Laws Amendment Act 2011. However, all you really need to know is that for a beneficiary to be presently entitled to a share of the income of the trust estate, that beneficiary must have a vested interest in the income and demand immediate payment from the trustee.

1. Extending vesting date.

If the trust deed does not provide you with the superpowers to extend or bring forward the vesting date, you will need to approach the supreme court in your state or territory to make certain changes to the vesting date.

1. Contingent vesting deeds.

This is typically when a trust interest in a property is transferred to a person. Contingent interest is defeated by the death of transferee before he obtains possession.

1. Unitholder agreements.

A unit trust deals mostly with commercial projects or investments that features one unrelated interest or party. Beneficiaries of a unit trust have a fixed interest in all property that is the subject of the trust. A unitholder trust differs from a discretionary trust as beneficiaries’ rights to income and capital are not fixed and not at the trustee’s discretion.

1. Lost Trust Deeds.

A replacement deed can be entered into between the trustee and beneficiaries, there is no longer any evidence of its terms, the trustee will usually be unable to carry out activities such as:

• Opening a bank account
• Gaining finance
• Land title registration

1. Testamentary Trusts.

These can be confusing, but ultimately, allow trustees of each trust to decide, from time to time, which of the nominated beneficiaries (if any) may receive the benefit of the distributions from that trust for any given period.

1. Trust acknowledgements; and

The Acknowledgement of Trust does nothing other than document what has happened in the past. It is not trying to rectify or change anything; it is merely recording what happened in the past.

1. Legal opinions on trust problems

Overall, we hope this list has enhanced your knowledge on Trust Deeds and all the caveats that follow.

If you are not sure where to start, contact Nevile & Co. today.

The information contained on this page is general in nature and does not take into account your personal situation. It is not intended to be relied upon as, nor is it a substitute for specific legal advice. You should consider whether the information is appropriate to your needs, and where appropriate, seek professional advice.

What is a Trademark?

A trademark is a sign used or intended to be used to distinguish goods or services dealt with or provided in the course of trade by a person or organisation, from goods or services dealt with or provided by any other person or organisation.

A sign includes any of the following, or any combination of the following (note this :

• Letter;
• Word or Name;
• Signature;
• Numeral;
• Device;
• Brand;
• Heading;
• Label or Ticket;
• Aspect of packaging;
• Shape;
• Colour;
• Sound; or
• Scent.

Accordingly, a logo and any word marks may properly operate separately as a trademark. Often, you will use them in close association with each other. However, you will most likely find it beneficial to register both of these as separate trademarks.

What are the Benefits of Registration?

In general terms, once your trademark has been registered, you will obtain an Australia-wide monopoly for use of that trademark in respect of the goods or services (aka classes) for which registration was granted.

You will not obtain this right if you use your mark as a business name, domain name, or company name without registering it as a trademark.

How do I Apply for Registration?

Applications for trademark registration must be filed with IP Australia.

The current timeframe for registration is 8-12 months, however, sometimes IP Australia may expedite the process.

Applying for registration of your trademark will involve the following stages:

1. Searches to establish whether there is a trademark that may be the same or very similar to your trademark;
2. Identifying the relevant goods and/or services that you use or intend to use your trademark for. These are categorised into “classes”;
3. Lodging an application for registration of a trademark with IP Australia;
4. Dealing with any objection that IP Australia many have to the registration of the mark; and
5. Paying registration fees which will ultimately be a prerequisite to the issuance of a certificate of registration.

Are you looking to register a trademark? Contact our Commercial Team today at nevileco@nevile.com.au

It would appear that not even Self Managed Superannuation Fund (SMSF) audits could escape the impacts of COVID lockdowns and the continued challenges faced by all businesses as we continue to recover.

For SMSFs that hold property, it is important that property valuations are market-related and can be substantiated. Recent changes to the Code of Ethics for auditors and tax professionals have highlighted the importance of obtaining independent advice to mitigate any potential or perceived threats to independence. Auditors seek valuations with objective and supportable data demonstrating market value, comparable sales evidence and the valuation methodology used.

With COVID continuing to affect the entire country, some SMSF trustees have been hesitant to have a property valuer enter their property to conduct a physical inspection due to the risk of infection and their vulnerability to the virus.

To alleviate these concerns, Law Central and ASX listed property valuation and advisory firm, Acumentis, have collaborated to provide access to a remote desktop-based SMSF Restricted Property Assessment service. This will be a fixed price service, available for commercial and residential properties. It promises to meet the ATO requirement for SMSF trustees to provide compliant market value estimates of property held within the fund, without the need for physical attendance at a property.

Law Central has negotiated with Acumentis to provide a Restricted Property Assessment for residential property (where the property value is less than $1.5M) for only $315 (Inc GST).

For commercial properties (where the value is less than $2.5M and has 2 or less tenants), the cost is $695 (Inc GST).

If a physical property valuation is required for specialised circumstances or complex properties, fully vaccinated valuers will inspect the property adhering to COVID safety protocols, aligned to government and best practice safety procedures.

You can find out more by contacting Nevile & Co. to discuss your requirements, or visit Law Central to order your assessment today.

Most of us are aware of what a Will is, and what is does, and most people have heard the term “power of attorney”. But do you know the difference between the two documents and how they may work together?

What is a Will?

A Will is a binding legal document that provides you with a method of sharing instructions for what you would like to happen with your estate with you die. Your estate includes your belongings, your assets and liabilities, and anything else you may own.

Your Will names the people you want your belongings and assets to be given to, and also enables you to set out who you would like to look after your children or pets.

A Will only takes effect when you die, and cannot be used in cases where you are still alive, even if affected by a serious injury or illness that leaves you unable to deal with your affairs. This is where you may need a Power of Attorney.

What is a Power of Attorney?

A Power of Attorney allows you to appoint a person or organisation to make decisions on your behalf while you are still alive. The person you assign can be a family member, friend, lawyer, accountant, or government body such as the State Trustees.

There are several different types of Powers of Attorney.  Firstly, you may choose to appoint a general non-enduring Power of Attorney that authorises a person to act on your behalf for a specific purpose, such as while you are overseas. This type of attorney will end once the specific purpose has been completed, or once it is revoked.

You many prefer to appoint an enduring Power of Attorney. This authorises a person to make financial and personal decisions for you during your lifetime. You can choose when it begins, however unlike a non-enduring power, it will continue indefinitely in the event that you lose decision making capacity. That is, you can no longer make decisions on your own. The enduring Power of Attorney is designed to ensure that decisions are being made on your behalf and in your best interests when you are no longer able to do that for yourself.

Typically, powers of attorney will cease once you die, unless they have revoked by you earlier. After you die, your will becomes the most important document.

What is the difference between a Will and a Power of Attorney?

The main difference between a Will and Power of Attorney is when they take effect. As outlined earlier, a will is specifically used to manage your estate when you die, and takes effect after your death. In comparison, a Power of Attorney authorises the person you nominate to act on your behalf and takes effect during your lifetime.

The executor (the person in charge of carrying out your will) has a specific and limited job description. They need to make sure your property and assets are properly distributed. The person or organisation that you have appointed as your attorney will make all kinds of important decisions, but only while you are still alive.

Can the same person hold Power of Attorney and be the Executor of your Will?

Yes, they can indeed. In fact this is very common, because both roles hold responsibilities that you might want entrusted to a particular person or organisation, such as your partner or lawyer.

Keep in mind – naming someone as executor of your will does not automatically give them power of attorney though or the other way around. You still need to create two separate documents, a Will and a Power of Attorney document, to make sure you’re covered for both situations.

Need to prepare a Will and Power of Attorney? Contact Nevile & Co. today to make an appointment with our Special Counsel, Tracy Collins.