A Valid Deed of Variation

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It is easy to determine that that no purported amending instrument executed from the 20 December 1982 onwards, by examining a genuine Deed of Variation that did lawfully amend the terms of the occupational pension trust established on the 23 December 1913 in the State of South Australia.

The Deed of Variation dated 20 November 1974 can be located on the following link: Deed of Variation 20 November 1974

 

Structure of a Deed

A well drafted Deed of Variation should follow a well established structure:

The document should state  on its face it is a deed  using words like “This Deed” or “executed as a deed”.  

Recitals

The original Trust Deed that established the trust should be identified as well as any consolidation Deed of Variation that revoked the terms of the original Trust Deed and replaced them with an amended version of the terms of the trust.

The Power of Amendment provided in the original Trust Deed should be recited to confirm that it is legally possible to execute a Deed of Variation and who has been provided with the Power of Amendment.

 

The Parties

The parties to the Deed should be identified, since the parties will need to execute the Deed.

 

Testatum

The Testatum is a command to witness the operative part of the Deed , which usually begins with “DO BY THIS DEED” or in earlier times “NOW THIS DEED WITNESSETH

 

Operative Part

This is the part of the Deed of Variation that includes the clauses to amend the terms of the trust.

 

Testimonium

The Testimonium attest to the due execution of the Deed. In well drafted Deed the Testimonium should be at the end of the document so as to minimised the opportunity to later tamper with the provisions of the Deed of Variation.

The Testimonium typically commences with the word s “IN WITNESS whereof..”

The words SIGNED SEALED and DELIVERED should also be used by each person executing the instrument to confirm the instrument is being executed as a  Deed.

 

Deed of Variation dated 20 November 1974

This Deed of Variation was executed by the following Directors of the sponsoring Employer:
  • (Sir) Henry Norman Giles {Chairman}
  • John Neil McEwin {Deputy Chairman}
  • Alfred Moxon Simpson
  • (Sir) Norman Smith Young
  • Bruce Roy Macklin
  • Joseph Ian Norman Winter
  • Harold Charles Schmidt
The following natural person Trustees also executed the Deed of Variation:
  • John Neil McEwin
  • Alfred Moxon Simpson
  • Bruce Roy Macklin
  • Ivan Edward Crossing
  • Ronald William Gayler
It is a provision of the Trustee Act 1936 (SA) that trustees of trusts established in South Australia must be resident in South Australia and can only be temporarily absent for up to 12 months unless on military service. The Deed of Variation confirms that all the Trustees were resident in South Australia. The Company Annual Report for 1974 confirms that a majority of the Directors executed the Deed of Variation as require d by the Power of AmendmentRegulation 50 which is reference in the Elder Smith & Co Limited Provident Funds Act 1963 (SA). The number of Directors was was nine seven executed the Deed of Variation  {See below}. The components of a valid Deed of Variation are identified with highlight arrows as follows:

First Page of the Deed of Variation {Shown below}.

 

{Arrow A}

 Deed of Variation must identify the original Deed that established the trust and whose terms are to be amended by the Deed of Variation. The Deed of Variation executed on the 20 December 1974 recites the Deed made on the 23 December 1913 and the parties to the Deed:
  • The Employer Sponsor (the “Settlor”) – Elder Smith & Co Limited,
  • the original Trustees who were three natural person trustees, and
  • the original Members of the fund

{Arrow B}

It was a statutory requirement for all Deeds related to trusts established in South Australia to be duty stamped prior to 1 July 2006.

This Deed of Variation has been duty stamped.

{Arrow C}

A consolidation Deed of Variation dated 6 May 1958 is also recited since this Deed revoked the previous Regulations and replaced them with a revised Regulations {however the revised Regulations increased the value of  retrenchment and retirement entitlements}.

A Power of Amendment is the application of a power of appointment or a power of revocation or an application of both and if the intention is for a new provision to replace an existing provision, it should be clearly stated that an existing provision is to be “repealed”, “revoked” or “deleted”. If a new provision is added, this does not by itself revoke an existing provision.

Until such time as the Regulations provided the consolidation Deed of Variation dated 6 May 1958 are repealed, they remain effective and in force, even if other provisions are added.

{Arrow D}

The Regulations of the Fund were also amended by the Elder Smith & Co Limited Provident Funds Act 1963 (SA) so that the Board of any “successor company” would take over the obligations of Elder Smith & Co Limited that established the fund in 1913. 1974 Deed of Variation Page 1

Second Page of the Deed of Variation {Shown below}.

 

{Arrow E}

The “successor company” is recited to be Elder Smith Goldsbrough Mort Limited.

{Arrow F}

If the original Trust Deed did not provide a Power of Amendment, then an amending Instrument could not be used to amend the terms of the original Trust Deed.

The original Trust Deed which was renumbered to Regulation 50 in the consolidation Deed of Variation dated 6 May 1958.

The complete transcript of Regulation 50 can be found here .

The Power of Amendment was provided to the Directors of the sponsoring Employer.

{Important: The Power of Amendment was given to the natural person directors and not to “the company” or the “Principal Employer” which is a “legal person”}

A number of conditions and restrictions are imposed by Regulation 50.

The conditions are:
  • the amending instrument must be a Deed
  • a majority of the Directors must executed the Deed of Variation, and
  • a majority of the Trustees must also give their consent in writing and confirmed by executing the Deed of Variation.
{Important: The Trustees must be lawfully appointed to the office of trustee in order to exercise the power to consent to the proposed amendment to the terms of the trust}.

{Arrow G}

The Directors who have agreed to the proposed amendment to the terms of the trust are recited and they are required to execute the Deed of Variation.

{Arrow H}

The natural person Trustees who have agreed to the proposed amendment to the terms of the trust are recited and they are required to give their consent in writing as confirmed by executing the Deed of Variation.

{Arrow I}

The instrument is expressed to be a “Deed” on its face.

{Arrow J}

Is the Operational part of the Deed of Variation.

1974 Deed of Variation Page 2

First page of Testimonium of the Deed of Variation {Shown below}.

{Arrow K}

Confirms that the amendments has been made “pursuant to said Regulation 50” and prescribes when the amendment to the terms of the trust {Regulations of the Fund} are to take effect. The Testimonium follows:

{Arrow L}

Confirms that a majority of the Directors of the sponsoring Employer have executed the Deed, which must be witnessed in order to comply with the statutory provisions for the execution of a Deed in South Australia. Seven out of nine Directors executed this Deed of Variation.

  1974 Deed of Variation Page 3

Second page of Testimonium of the Deed of Variation {Shown below}.

{Arrow M}

Confirms that a majority of the Trustees have also given their consent in writing by executing the Deed. All five natural person trustees executed the Deed of Variation.

1974 Deed of Variation Page 4  

In Summary

The Deed of Variation executed on the 20 November 1973 meets the requirements for a valid Deed of Variation as summarised below.

  Requirements for a valid Deed of Variation  

The requirements for a valid Deed of Variation can be compared with the fraudulent “Jarrett Deed” which can be found here


 

Director of Elder Smith Goldsbrough Mort Limited – 1974

Directors ESGM 1974
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