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TAS Discretionary Trust Deed - Amendment to Schedule

Discussion in 'Commercial Law Forum' started by JohnB, 7 February 2015.

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  1. JohnB

    JohnB Member

    28 January 2015
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    My sister has a Discretionary Trust with a Corporate Trustee and is the sole director for that Corporate Trustee.

    The Trust Deed was executed on 28 September 2012.

    Only recently has an administrative error been found relating to the Schedule attached to the Trust Deed.

    The Schedule shows incorrect details for the name of the Trustee. It shows the name of another Corporate Trustee of which my sister is also the sole director.

    All other details of the Trust Deed & the Schedule are complete & correct. The Deed was executed with the correct Trustee details shown above the signatures of my sister, in her capacity as sole director, the settlor and the witness.

    Preliminary advice to date centres around using a Deed of Amendment to change the Trustee which appears to be 'overkill' for a one line, three to four word administrative error, particularly as there is in fact no change to Trustee required.

    Anyway, my questions are:

    1. Can the error in the Schedule be fixed by Trustee Resolution / Minute?
    2. Is a Deed of Amendment indeed required to correct the Schedule?
    3. The law of the jurisdiction covering the Trust Deed is Tasmania. However, which jurisdiction should a correction be made as my sister & the Trust activities now reside and operate in Western Australia?

    Finally, the correction required is very simple in editing terms ie, replacing the Corporate Trustee name & ACN & I look forward to any advice you can provide.
  2. Michael T

    Michael T Well-Known Member

    9 April 2014
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    My understanding is that you'd use a Deed of Amendment to amend the Trust Deed. It depends what the Trust Deed says about making amendments - so have a good read of the Trust Deed, but usually requirements are quite strict with Deeds and if you don't follow the requirements, the changes may be held to be ineffective.

    If you're going to amend the Trust Deed, you might as well change the governing law jurisdiction to WA. Usually, the governing law is most relevant if a party wants to bring proceedings and the governing law clause would govern the location of the courts in which you can bring proceedings.

    Obviously, the best recommendation I can give is to seek personalised legal advice, but I hope this information helps.

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