Family court continues attack on testamentary trusts following budget death tax
What happened
A recent Family Court decision has increased scrutiny on how discretionary and testamentary trusts are treated in relationship breakdowns. The ruling is operationally significant because it affects whether trust assets are treated as resources in property divisions, changing advisory outcomes for clients using trust structures. Buyers should watch whether advisers change client-acceptance criteria or add wider legal disclaimers when taking on trust work
Buyer takeaway
Require tighter cross-discipline verification for trust work because court outcomes can shift tax, payroll and property treatment rapidly
Cost / money
Expect higher advisory fees and more time spent coordinating legal and tax input when trust structuring or amendments are required
Supplier / commercial
Suppliers may narrow scopes or demand clearer instructions and disclaimers before accepting trust work
Safety / operations
Misclassification of trust assets can lead to incorrect payroll or tax treatment and downstream correction work
What to watch
Watch for advisers adding legal disclaimers, limiting acceptance of trust clients, or requesting additional sign-offs
Key facts
- Family Court decision affecting discretionary/testamentary trust treatment
- Decision emphasises court powers to treat trust assets as relationship resources
Source excerpts
The family court's powers over how the assets of discretionary trusts are treated in the event of a relationship breakdown can be problematic for those seeking to leverage trust arrangements to protect wealth against relationship misadventure
Issues such as the origin of the trust assets and restrictions imposed under the trust deeds were ones which are only relevant to the consideration of contributions of the parties, not to the threshold categorisation of the trusts themselves
primarily because the terms of each of the trust deeds permitted the husband to exercise those powers for his own benefit. Ultimately, the husband had the requisite control to make the assets of the trusts property of the husband, being 'control over a person or entity who, by reason of the powers contained in the trust deed can obtain, or effect the obtaining of, a beneficial interest in the property of the trust' (see Harris & Dewell (2018) FLC 93-839)