Invalid Deeds of Variation

There are many examples where the Courts have ruled that purported Deeds of Variation are invalid either because the original Trust Deed did not provide a Power of Amendment or because there was a failure to comply with the statutory requirements to properly execute a Deed or because there was a failure to comply with the conditions and restrictions imposed by the Power of Amendment.

The Laws of Australia {Thompson Reuters) at [15.14.1450] states under the section “It is the trustee’s plainest duty to obey the terms of the trust” the following is stated:

“Where the trust instrument confers a power of amendment, the conditions and restrictions imposed on its exercise must themselves be strictly observed.”

If a purported Deed of Variation is void, then the terms of the trust remain unaltered.

 

Examples where these principles have been applied include:

  • Briggs v Gleeds (Head Office) [2014] EWCH 1178 (Ch)
  • Walker Morris Trustees Ltd. v Masterson & Anor [2009] EWHC 1955 (Ch)
  • Sovereign Trustees Ltd & Anor v Glover & Ors [2007] EWHC 1750 (Ch)
  • Trustee Solutions Ltd & Ors v Dubery & Anor [2006] EWHC 1426 (Ch)
  • Meier v Dorzan Pty Limited & Anor [2010] NSWSC 664
  • NSW MASONIC YOUTH PROPERTY TRUST & ANOR v HER MAJESTY’S ATTORNEY-GENERAL IN AND FOR THE STATE OF NSW & ANOR [2009] NSWSC 1301
  • Hillcrest (Ilford) Pty Ltd v Kingsford (Ilford) Pty Ltd (No.2) [2010] NSWSC 285
  • Re Cavill Hotels Pty Ltd[1998] 1 Qd R 396.