Memorandum on a Trust Deed

MEMORANDUM From: (Associates) To: (Partner) Re: Betty Bennett’s Trust Deed Date: January 09, 2013 I. INTRODUCTION The memorandum is prepared for the meeting with Betty Bennett, a client who intends to set up a trust for the welfare of her grandchildren. In the following analysis, each provision in the proposed trust deed is discussed in order to identify legal issues and problems which need to be solved or avoided. The relevant suggestions are provided, and other considerations which include questions and issues to be clarified are also given in the memorandum. II. ISSUES AND RECOMMENDED PROVISIONS 1. Provision 1 A valid express trust is required to satisfy the “the three certainties” which are the certainty of intention, certainty of subject-matter and certainty of objects.[1] To establish a legally effective trust for Ms Bennett, it must be shown that the client has the intention to create a trust (but not a gift or loan),[2] and immediately transfer the property when the trust is initially executed.[3] It is very clear from the wording of “upon creation of the trust” that the client has the intention to establish a trust but not a gift or loan. However, in the first provision of the drafted trust deed, it is uncertain when the trust deed will be created and when the $1 million will be transferred to the trust account. Additionally, the provision will be not legally enforceable to declare an intention to establish a trust for future time without considerations.[4] Therefore, the provision is invalid and needs to be redrafted to change the wordings to make sure that the trust property is immediately transferred at the commencement of the trust deed. For the requirement of subject matter, the property transferred to the trust must be certain and identifiable.[5] The property that the client intends to be held on trust is $1million. As the subject matter of the current trust is cash from Ms Bennett’s personal property which is tangible, the property can be identified and defined. It can be suggested that the word “cash” should be incorporated into the provision to avoid ambiguity. An express trust is established completely when the trust property is transferred to the trustees in the capacity of trustees.[6] It is highly recommended to list the names of the trustees who are Cathy and Denis, and give the details of the specific trust account set up for the purpose of this particular trust in the provision. [Recommended provision]

I, Betty Bennett, hereby assign $ 1 million in cash into the specific trust account in the name of the trustees, Cathy Chen and Denise Finkel, in their capacity as trustees. Details of the specific account. Bank: Common Bank of Australia Account No: 540128 12039494

2. Provision 2 The certainty of objects requires that a valid express trust should be created for the benefit of beneficiaries who must be identified.[7] As there is an obligation to distribute the trust assets equally among all living beneficiaries in Provision 5, it seems that the trust deed is a fixed trust where the “list certainty” rule applies which requires that all the beneficiaries must be identified or ascertainable by the trustees at the time of distribution.[8] Although Edward can be easily identified as a beneficiary, there may be a potential issue in the provision that may be challenged that whether the definition of “future children” includes any illegitimate child of Cathy or Denise, and the children from their future marriages. Therefore, the real intention needs to be clarified and confirmed with the client. Furthermore, the wording of “might” used in the provision lacks certainty of objects which may invalidate the provision. Clarifications are required by the client. The provisions in a completely constituted express trust must not offend against public policies. Despite the High Court decision in Ramsay v Trustee Executors and Agency Co Ltd[9] which upheld that the beneficiary who were absolutely entitled to the trust property when divorced with the current wife did not contravene the public policy, it has been well accepted and supported by recent authorities that any trust prejudicial to the status of marriage is void for the public policy reasons.[10] It is unclear in the provision whether the client is really willing to exclude Denise’s children related to Fred as beneficiaries. If it is the true intention, as long as Denise remains the present marriage with Fred, their children is not entitled to receive the trust assets. Therefore, the instructions from the client should be reconfirmed and Ms Bennett should be suggested that the provision is very likely to be void due to the possibilities to cause inducement to divorce or matrimonial discord. [Recommended provision]

The beneficiaries of the trust are Edward Chen, all future children of Cathy Chen and Denise Finkel from legitimate marriages. OR The beneficiaries of the trust are Edward Chen, all future children of Cathy Chen and Denise Finkel regardless of marital status.

3. Provision 3 A fiduciary relationship exists when one party undertakes or acts on behalf of another party in a particular circumstance where in the context of trust, trustees have fiduciary obligations to act for the best interests of the beneficiaries.[11] In other words, a trust will not exist if there is no fiduciary relationship between the trustees and beneficiaries and the essence of a trust is described as “an owner of property is obliged to apply the property for another”.[12] Although most of the fiduciary obligations can be excluded by the trust instrument or obtaining the fully informed consent of the beneficiaries, the obligation to act good faith is a must for the existence of a valid trust.[13] In the provision, it is obvious that the client wishes to exempt the trustees from any breach of fiduciary obligations. However, Ms Bennett should be advised that the trust will not valid if the trustees shall not be liable to the beneficiaries by considering the nature of a trust. It is highly recommended that the wording of “liable” should be replaced, and this part of the provision should be redrafted to reflect “good faith” component in case of any conflict between the trustees and beneficiaries while the wording of “except in cases of intentional taking of trust funds” should be considered to be too narrow and unnecessary and deleted from the provision. Under S59(4) of Trustee Act and common law authorities,[14] the trustee has a right of indemnity to reimburse himself for expenses which incurs in managing the trust property and discharge the expense directly from the trust property.[15] The trustee may also be entitled to receive remuneration with the consent of all sui juris beneficiaries or express conferral through the trust instrument.[16] The trustees’ right of indemnity is clearly expressed in the provision but the contents of the provision regarding indemnity right should incorporate a limitation which ensures that that the expenses are properly incurred. All the expenses which are unreasonably incurred by trustees should not be reimbursed. Also, the payment for trustees’ services mentioned in the provision must be related to the execution of the trust. In addition, there is another consideration that the client may be aware that the court’s conferral is required if the trustees elect to execute the right to remuneration as some beneficiaries may be under a legal age at that time. The indemnity right may be extended to beneficiaries in some circumstances. Beneficiaries who benefit from the trust should be liable to the personal risk unless it can be reasonably believed that the trustee should be responsible for the burden.[17] In the current provision, because all the beneficiaries at the time of execution of the trust are under legal age, infant or unborn, the beneficiaries are not be required to indemnify the trustee personally by applying the Hardoon[18] rule. The difficult situation in the current trust deed will arise when some of the beneficiary turns 18 and becomes an adult legally. Since it is not very fair to protect adult beneficiaries in a trust which consists of both infant and adult beneficiaries,[19] any beneficiary who turns 18 will become liable for the burden. Consequently, it may be held by the court that the terms would invalidate the provision. Therefore, the provision should be also redrafted to reflect the issue above and deal with adult beneficiaries and infant beneficiary respectively. [Recommended provision]

The trustees shall act in good faith to the beneficiaries on account of their actions as trustees. The trustees may receive some payment for their services in relation to the execution of the trust and be reimbursed from the trust funds for expenses properly and reasonably incurred in managing the trust. The trustees will have no right to claim funds directly from the beneficiaries who are under 18.

4. Provision 4 The trustee’s duties are not only sourced in the trust instrument but also in statute and in equity.[20] The trustee’s duties on investment of trust funds are largely regulated by statutory provisions. The current legislation provides a bifurcated standard of prudence in investment depending on the professional attributes of the trustee in question. More is expected of a professional trustee than an unpaid family trustee. Under s 14A of Trustee Act 1925 (NSW), trustees, if he or she is not a professional trustee like trustees in proposed trustee, are required to exercise diligence and skill that a prudent person would exercise in managing the affairs of other persons when exercising a power of investment. Because current statute explicitly imposes duties of prudent person on the trustee for investment of trust funds, Ms Bennett’s drafted provision that requires the trustee to attempt to invest trust money prudently is unnecessary. Moreover, the current legislation requires the standard of prudent person in managing the affairs of other persons. The standard of prudent person in managing the affairs of other persons and the standard of prudent person in managing their own affairs are different. However, Ms Bennett’s drafted provision is ambiguous about which standard is required. The standard of care imposed on a trustee can be altered by express terms in the trust instrument, but the express terms should not cause ambiguousness. Most, but not all, liability for breach of trust can be excluded by specific provision in the trust instrument.[21] The Court of Appeal in Armitage v Nurse[22] held that a trustee’s liability for negligence could be excluded, but it would offend public policy to allow an exemption clause to exclude liability for actual fraud or dishonesty. Ms Bennett’s drafted provision that expressly exempts the trustee’s liability for the investment decisions can be interpreted to include any liability including actual fraud and dishonesty. Therefore, the drafted provision can be invalid because it is against public policy. In summary, the drafted provision 4 by Ms Bennett is problematic and it should be deleted. [Recommended provision]

(Delete)

5. Provision 5 There are rules to limit the duration of private trusts. These are collectively known as the ‘rule against perpetuities’. The rule against perpetuities requires a disposition of property to vest with in certain period of time. The trusts that infringed these rules are void. Under s 7(1) of Perpetuities Act 1984 (NSW), the perpetuities period is 80 years from the date when the disposition takes effect. Ms Bennett’s drafted provision states that the trust shall vest when the youngest beneficiary turns 18. Because the beneficiaries of the proposed trust are all future children of Ms Bennett’s two daughters, the youngest beneficiary will technically be the last born child of Ms Bennett’s two daughters, either Cathy Chen or Denise Finkel. It is not clear whether Ms Bennett’s drafted provision breaches the rule against perpetuities making the trust void because it is not certain whether the last child of either Cathy Chen or Denise Finkel can be born after 62 years from the date of disposition to exceed 80 year statutory perpetuity period. However, it is certain that Ms Bennett’s drafted provision causes future difficulties in making the trust vested within in a certain period of time because the trustees will have difficulties in deciding who the last child of Cathy Chen or Denise Finkel will be. In addition, from Ms Bennett’s wishes, it seems that she wants to provide benefits for her existing and future grandchildren from the proposed trust. However, under her drafted provision, most of the beneficiaries will have no benefits for a long time until the youngest beneficiary who is even unborn at the time of the establishment of the trust reaches 18. It is doubtful that Ms Bennett intended this situation. In summary, the drafted provision 5 by Ms Bennett is problematic and it should be replaced by the recommended provision below. [Recommended provisions]

The trust shall vest when the eldest beneficiary turns 18. At that time, all remaining trust assets will be distributed equally among all living beneficiaries. OR The trust shall vest when either the youngest beneficiary turns 18 or 80 years from the date of this trust deed, whichever is earlier. At that time, all remaining trust assets will be distributed equally among all living beneficiaries.

III. Questions and Other Considerations 1. Does Ms Bennett want to create an inter-vivos trust or a testamentary trust? For the purpose of the proposed trust, there are two methods available for creating a trust. But Ms Bennett’s drafted provisions do not specify which method she intends to use. One method is testamentary trusts and the other is inter vivos trusts. Ms Bennett has to decide which method she prefers. 2. What does Ms Bennett mean by ‘children’ in the drafted provision as beneficiaries? As already discussed in II-2 above, the beneficiary must be certain. In other words, the beneficiaries of a trust must be identifiable. However, the word ‘children’ in Ms Bennett’s proposed provisions makes the beneficiaries to be uncertain because it is not clear whether the ‘children’ include the children only from legal marriage or not. Therefore, Ms Bennett should decide whether she wants to include children only from legal marriage or not. 3. What is Ms Bennette’s intended vesting period of the proposed trust? As discussed in II-5 above, the proposed provision 5 is problematic. Therefore, we proposed two versions of recommended provisions. Nevertheless, it would be more appropriate to understand what Ms Bennett’s intended vesting period is. 4. How does Ms Bennett want to distribute the income from investment of trust property? The trustee is under a duty to invest trust funds rather than to simply hold them safe.[23] Therefore, certain income will be generally created from the trust property. However, Ms Bennett’s drafted provisions do not instruct the trustees how to deal with the income generated from the trust property. Ms Bennett should provide the relevant provisions. Recommended Provision

The trustees must accumulate and retain the income generated from investment of trust property for the benefits of the beneficiaries. The accumulated income will become trust assets and distributed equally among all living beneficiaries at the time of termination of the trust.

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[1] M.W. Bryan and V.J. Vann, Equity& Trusts in Australia, (Cambridge University Press, 2012), p226; Knight v Knight (1840) 3 Beav 148, 173. [2] Byrnes v Kendle (2011) 243 CLR 253, 253. [3] Harpur v Levy (2007) 16 VR 587, 601. [4] Cochrane v Moore (1890) 25 QBD 57, 72-73. [5] Hunter v Moss[1994]1 WLR 452. [6] Milroy v Lord (1862) De GF & J 264. [7] P Creighton, “Certainty of Objects of Trusts and Powers: The Impact of McPhail v Doulton in Australia” (2000) 22 Sydney Law Review 93. [8] Inland Revenue Commissioners v Broadway Cottages Trust [1955] Ch 678. [9] (1948) 77 CLR 321. [10] Church Property Trustees, Diocese of Newcastle v Ebbeck (1960) 104 CLR 394, 404; Jones v Krawczyk (2011) 7 ASTLR 104, at [38]. [11]Bryan and Vann, above no 1, pp156, 162. [12] Ibid, p230. [13] Ibid, p164; Armitage v Nurse [1998] Ch 241, 253-254. [14] Section 59(4), Trustee Act (NSW); Worrall v Harford (1802) 8 Ves Jun 4, 8. [15] Bryan and Vann, above no 1, pp323, 324. [16] Graham Moffat, Gerry Bean and Rebecca Probert, Trusts Law: Text and Materials, (Cambridge University Press, 5th , 2009), p447; Duke of Norfolk's Case(1682)3 Ch. Cas. 1, 22 Eng. Rep. 931. [17] Hardoon v Belilios [1901] AC 118. [18] Hardoon v Belilios [1901] AC 118. [19] Bryan and Vann, above no 1, pp332, 333. [20] MW Bryan and VJ Vann, above no 1, 279. [21] MW Bryan and VJ Vann, above no 1, 339. [22] [1997] 2 All ER 705. [23] Adamson v Reid (1880) 6 LLR (E) 164.

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