The Court rectified a discretionary trust deed where the initial trustee (an individual) was inadvertently caught by the 'Excluded person' definition, preventing her from benefiting from the trust contrary to the common intention of the settlor and trustee. Where a settlor acts on instructions and applies professional judgment (here, to achieve a stamp duty advantage under s 54(3) of the Duties Act 1997 (NSW)), the Court declined to treat the settlor's intention as irrelevant but found the paramount intention of both parties was to permit the trustee to benefit, and the failure to carve her out of the exclusion was a common mistake. The Court preferred a rectification that specifically named the individual to be excluded from the 'Excluded person' definition, rather than limiting the definition to corporate trustees, as more precisely reflecting the parties' fundamental intention.
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