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103376
Individual Podcasts

Discretionary No More? The Future Of Discretionary Family Trusts Post-Owies

The recent decision of Owie has thrown the future of discretionary family trusts into doubt by challenging the idea that trustees of discretionary family trusts have absolute discretion to distribute income for the benefit of one or more of the beneficiaries of the trust in prefer

Date/Time

About the Podcast

The recent decision of Owie has thrown the future of discretionary family trusts into doubt by challenging the idea that trustees of discretionary family trusts have absolute discretion to distribute income for the benefit of one or more of the beneficiaries of the trust in preference to others. Lawyers must now grapple with the potential ramifications of this decision and what it means for their clients. To help understand these issues and their potential ramifications in more depth, this session will examine:

  • What does ‘real and genuine consideration’ mean when trustees are exercising their discretion?  How far does this extend?
  • The facts in Owie, what led to the decision and its outcome
  • What does Owie mean for the future of discretionary family trusts in Australia
  • When will the court remove a trustee?
  • Best practice tips in relation to what advice should be provided to clients following this decision when acting for both trustees and beneficiaries
  • What steps should lawyers be advising their clients to now take to evidence the rationale behind trust distributions in the event of a future challenge

Presented By

Andrew Verspaandonk
Barrister, Green's List Barristers Melbourne, Vic

Andrew Verspaandonk is a member of the Victorian Bar and a member of STEP. He signed the Bar Roll in 2000 and after a wide initial practice has since has developed a practice almost exclusively centered on Wills and Estate litigation of various kinds in the Supreme and County Courts, as Counsel and as Mediator. Cases appeared in includeNicholson-v-Knaggs [2009] VSC 64 (the “Betty Dyke” Litigation) in 2008, one of the longest running Testamentary Capacity and Undue Influence trials in Victoria, Sinclair-v-Moss [2006] VSC 130, relating to the review of trustees’ discretions. Simpson-v-Cunning [2011] VSC 466 which confirmed the departure of Victorian law from the rule established in Re: Slater [1907] 1 Ch 665 with regard to ademption of property alienated by attorneys. He has also appeared in the Supreme Court of Nauru (sitting in Melbourne and Nauru) retained on behalf of the Republic of Nauru in estate related litigation. He has extensive mediation experience both as Counsel and as Mediator in Supreme Court and County Court proceedings. Rate of resolution of matters mediated is over 90%.

He has given many presentations and contributed articles on various aspects of Wills and Estates law in Victoria, interstate and overseas on behalf of various Law Societies and their journals, Law Associations, STEP, Leo Cussen Institute, Capacity Australia and private CLE providers.

CPD Information

0.5 CPD units

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