Tuesday, May 19, 2015

Trust distributions – is the recipient a beneficiary?

Numerous previous posts have raised that the trustee of a discretionary trust must ensure that the intended recipient is in fact a potential beneficiary of the trust when making a trust distributive

As mentioned in last week’s post, one of the most famous cases in this regard is BRK (Bris) Pty Ltd v FCT [2001] FCA 164 (see - http://blog.viewlegal.com.au/2015/05/trust-distributions-three-reminders.html).

In relation to the aspect of the decision in BRK that concerned the initial failure to make a valid distribution, the circumstances were as follows:
  1. The trustee had the power to make distributions amongst potential beneficiaries.
  2. The beneficiaries were listed in a schedule to the deed.
  3. The trustee believed it had the power to nominate additional beneficiaries, and indeed, prepared resolutions quoting particular clauses in the deed that gave it the requisite power.
  4. Unfortunately the trustee must have been referring to some other trust instrument, as the purported power to nominate additional beneficiaries did not in fact exist in the trust deed for the relevant trust.
  5. As the trustee did not have the relevant power to make the nomination resolution, the subsequent distribution resolution purporting to pass benefits to the invalidly nominated beneficiaries also failed.

Although it was unnecessary given the above conclusions, the court also noted that even if the trustee had the power that they purported to exercise in nominating the additional beneficiaries, the attempted resolution of income distribution would have failed in any event because:
  • one of the beneficiaries nominated did not exist at the date of the distribution;
  • the other beneficiary nominated was mis-defined (in particular, a company was noted as a trustee of a particular trust, however that company was not in fact acting as trustee for the trust at the date of nomination).

Image credit: Matthias Ripp cc