Why is the original Trust Deed Important?

The original Trust deed was executed on 23 December 1913.

So why is a 100 year old legal document so important?

The Deed that establishes a trust determines:

  • If a valid trust has been established that will be recognised by the Court?
  • What is the “authorised purpose” of the trust?
  • What class of persons can receive a benefit from the trust and if this can be altered?
  • If the terms of the trust can be amended and by whom and how?
  • If the trust(s) can be revoked and the associated fund wound-up and by whom?
  • What are the initial “terms of the trust”?

  • Was a Valid Trust Established?

    For a trust to be properly constituted there must be three certianties:.p>

  • Certainty of Intention
  • Certainty of Subject Matter
  • Certainty of Objects

  • The original Trust Deed executed on the 23 December 1913 established these three certianties.

    What is the “Authorised Purpose” of the Trust?

    The “authorised purpose” of the trust is to provide “pensions and benefits”.

    What class of persons can receive a Benefit?

    The class of persons who the trustee can provide benefits from the Trust Estate of the fund is “certain male officers, their wives widows and dependants” of the the Principal Employer and Associated Employers.

    Can the Terms of the Trust be Amended?

    The original Trust Deed provided a power of amendment to the Directors of the sponsoring Employer, requiring a majority of the directors to execute any Deed of Variation with the consent in writing of a majority of the trustees {Regulation 28 renumbered to Regulation 50}.

    The Power of Amendment {Regulation 50} can be found here.

    Can the Trust(s) be Revoked?

    The original Trust Deed provided a power of revocation to the Directors of the sponsoring Employer, requiring a unanimous resolution in writing with the consent of all of the trustees {Regulation 33 renumbered to Regulation 52}

    The Initial “Terms of the Trust”?

    The New South Wales Court of Appeal reviewed key concepts related to a trust and the original Trust Deed in Re Dion Investments Pty Ltd [2014] NSWCA 367. Information on this case can be found here.

    Neuberger J stated in Bestrustees v Stuart [2001] PLR 283, [2001] Pens LR 283, [2001] EWHC 549 (Ch), [2001] OPLR 341:

    “I bear in mind that a pension scheme is likely to continue for a substantial period of time and that those most affected by them and entitled to protection from the trustees, the employer and indeed the Court, will be people who are comparatively poor, who will not have easy access to expert legal advice, and who will not know what has been going on in relation to the management of the Scheme. In those circumstances, it seems to me that protection of the beneficiaries requires the Court to be very careful before it permits a departure from the plain wording and plain requirements of the trust deed.”

    facebooktwittergoogle_plusredditpinterestlinkedinmailby feather

    This tab updated on 21 March 2015