'Control', 'Ownership' and the Beneficiary of the Discretionary Trust: Case Note
Australian Bar Review, 31 1: 128-131
Posted: 26 Jun 2015
Date Written: 2008
Recent cases in the Federal (ASIC v Carey (No 6)) and Family Court (Stephens v Stephens) have contained the heterodox suggestion that in certain circumstances a court would be entitled to disregard the formal declaration of a trust in favour of a discretionary beneficiary (who is also frequently appointor) and treat that beneficiary as enjoying some form of ‘property’ interest in the trust property, prior to any appointment in his favour (see, generally, Dr John Glover, for an astringent analysis of the decisions). As a result of this ‘property’ interest, the court is empowered according to the applicable statute to make orders with respect to the trust property. In Public Trustee v Smith Justice White has examined the cases and in a detailed obiter analysis has explained the limitations on their potential operation.
JEL Classification: K00
Suggested Citation: Suggested Citation