Mercanti v Mercanti

(2016) 50 WAR 495; [2016] WASCA 206

Western Australia Court of Appeal

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For Australian Law.

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Interrogate

Catchwords

1. Trusts
2. › Discretionary family trust
3. › Power of variation in trust deed
4. › Proper construction
5. › Whether power of variation authorised removal and replacement of appointor
6. › Whether power to vary 'terms and conditions' extends beyond variation of trusts
1. Trusts
2. › Discretionary family trust
3. › Deed of variation
4. › Execution by corporate trustee
5. › Whether permissive clause required resolution of directors
6. › Duomatic principle
7. › Corporations Act 2001 (Cth), s 127
1. Equity
2. › Fraud on a power
3. › Discretionary family trust
4. › Power of variation
5. › Whether execution of deed of variation constituted fraud on power
6. › Whether purpose of variation was within scope of power
1. Equity
2. › Equitable fraud
3. › Undue influence
4. › Discretionary family trust
5. › Whether agreement of guardian and appointor to deed of variation was result of undue influence by son
6. › Presumed undue influence
7. › Whether antecedent relationship of dominion established

Quick Take

Practitioners advising on discretionary family trusts should note that a power to vary the 'terms and conditions' of a trust deed (as distinct from merely the 'trusts') may authorise the removal and replacement of the appointor, provided the variation is effected with any required consent (such as the guardian's consent) and is not a fraud on the power.