family trust - de facto vs wife

Discussion in 'Legal Issues' started by bubbleroo, 26th Mar, 2015.

  1. bubbleroo

    bubbleroo Member

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    Hi,

    If your trust stated beneficiaries are your wife & children. Will that mean your de facto partner is 'wife' under this term too OR the trust must say 'including de facto' partner ?

    Our trust does not mentioned 'de facto' so does it means we need it to be amended it ?

    thanks
     
  2. cu@thetop

    cu@thetop Member

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    Careful about amending the deed as the inclusion of a new beneficiary may count as a "resettlement" of the deed by your friendly local OSR thus incurring stamp duty on the trust assets.
     
  3. Terry_w

    Terry_w Member

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    look for the definition of 'wife'. It would be unusual if it said wife rather than 'spouse' so look carefully.

    Perhaps it is an older deed, drafted in a time when people got married.

    If the defacto does not fall under the definition then you have 2 choices

    1. amend the deed or

    2. marry the defacto

    actually there are more choices

    3. don't distribute to her/him

    4. distribute to a related trust which may also be a beneficiary

    Seek advice before doing any of the above.
     
  4. RPI

    RPI Member

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    I have seen a trust deed for a client from the 1950's. It refers to the husband/wife of the descendants of the original primary beneficiaries. Husband/ wife are the most modern terms in it, very old school old legalease
     
  5. RPI

    RPI Member

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    4 would be a cheaper way to do it if the original deed permits. As in setup a new trust where the beneficiary included in it so that the original trust distributes to the new trust which allows distribution to the defacto. Resettlement of a trust can have substantial tax/duty implications
     
  6. Terry_w

    Terry_w Member

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    The oldest trust deed that I had seen was from the 1980s.

    I hear many of the deeds set up back in the old days had short vesting periods and recently there has been a fair few cases of trustees applying to the courts to extend the vesting period as some of these trusts have no powers of amendment.
     
  7. Xenia IM

    Xenia IM Property Manager

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    Your wife lol
    Ok then