This book is only available in PDF format

Authors: Greg Kelly, Kimberly Lawrence
Published: 7 June 2018
Pages: 29

Introduction

The drafting of trust deeds has changed enormously over the last 30 years. A common problem for trustees administering trusts set up 30 – 40 years ago is that circumstances have changed but there is limited ability for the trustees to adapt because of the inadequate provisions of the will or trust deed. Trustees often need assistance to deal with changing situations but are handicapped by an old and limited empowering document.

It is now common to see variation powers or powers of amendment included in trust deeds. These allow parties – usually the trustees – to make variations to terms of the trust where necessary to ensure the smooth running or proper administration of the trust. Unforeseen circumstances can make an express variation power a useful tool.

Where a trust deed requires variation, but does not contain an express variation power, there are still ways that the variation can be achieved. This paper will consider express variation powers, other powers that can be used to effect a variation (but which are not express powers of variation or amendment), documents and proceedings relating to variation, restrictions on variation powers, and what changes can be expected under the proposed Trusts Act.

Content outline

• Effecting a variation pursuant to an express variation power
• Varying powers of appointment
• Other powers that can be used to effect a variation
• Useful variations to consider
• Variation by court order
• Changes proposed under the Trusts Bill
• Varying or excluding default duties