A recent Supreme Court case in South Australia highlighted the need to consider the terms of any Trust before taking steps such as the replacement of a Trustee by Will.
The most common trusts today are discretionary, therefore the identity of the Trustee and the Principal/Guardian/Appointer is of paramount importance.
In the recent case (Reschke), the Will maker mistakenly thought he had in his Will appointed his wife, accountant and his lawyer to take over the Trustee role. The court however, found that the provisions of the Trust Deed did not permit that in the way it was done and the purported appointment failed with the result that the Will makers’ wishes were challenged and could not be upheld.
The terms of any relevant Trust Deed should be carefully considered in conjunction with your Estate Planning.