Tuesday, September 27, 2016

Trust Splitting and Kennon v Spry

Earlier posts have looked at various aspects of the leading family law and trust case of Kennon v Spry – see -

Impact of the Spry decision on trusts

Spry - one year on

As set out in earlier posts, and with thanks to the Television Education Network, today’s post considers some related practical issues in relation to this case in a ‘vidcast’ at the following link - https://vimeo.com/148843224

As usual, an edited transcript of the presentation for those that cannot (or choose not) to view it is below –

The trust split that took place in Kennon v Spry was probably the fundamental thing that meant the whole structure and intended strategy fell over.

After the separation with his wife, Dr Spry took steps to split the trust or segregate the assets of what was in the initial family trust and create four separate sub-trusts for each of the four daughters of the relationship.

Dr Spry did that effectively, in the court’s view, as a way to mean that not only did he not have the assets, so that he could be subject to giving them up to his wife, it also meant that his wife didn’t have them either.

Essentially it was his way of saying to the family court ‘catch me if you can’.

Where the court landed was that they effectively ignored the attempted trust split.

While it might have been effective for tax purposes, while it might have been effective for stamp duty purposes, while it may have even been effective from an estate planning perspective, it was done after the relationship had broken down.

Although there were a myriad of other factual issues that called into question the way Dr Spry conducted himself, the court effectively simply ignored the trust split.

What that meant in a practical sense was that all of the assets that had otherwise been given to the control and benefit of the four daughters of the relationship were returned back into the head trust and the control of that trust was deemed to be solely with Dr Spry.

Once the court had gone through the unwinding of the estate planning exercise, or what was argued to be an estate planning exercise, once all that was unwound and all the assets were back up under the main trust, it was then quite easy for the court to say that trust was under the sole direction and coercion of Dr Spry. Therefore, those assets could then be administered under the terms of the family court order and pass entirely to the benefit of the wife.