It has never been easier to order a trust deed. However, getting a trust deed that effectively deals with both the tax and estate planning issues can be like finding a unicorn!

The recent decision of Reschke v Reschke [2017] SASC 192, highlights the importance of a well worded trust deed that facilitates the passing of control. In this case:

  1. The trust deed provided that the deceased, during his lifetime, had the power to remove and replace the trustee of the trust. This power transferred to the deceased’s executor upon his death.
  2. The deceased, in his Will, attempted to transfer the power of appointment to his wife, his accountant and his solicitor jointly, as he did not want his wife, who was his executor, to have sole control of the trust.
  3. The Court held the deceased was only the controller while he was alive and could not transfer this power in his Will. As a result, the wife became the sole controller of the trust.

The deceased died in 2008 and these trust issues were only resolved in 2017.