Appointors and guardians: getting deeds right – the 50th WA State Convention

Grahame Young, FTI
Grahame Young FTI is one of Western Australia’s most well-known commercial counsels. He joins a stellar line-up at The Tax Institute's 50th Annual Western Australian State Convention in August.

We spoke with Grahame about what attendees can expect from his session, ‘Appointors and guardians – getting deeds right’.

As control of trusts passes or is contested between generations, the rights, duties and identity of appointors and guardians have become critical.

“Cases such as Mercanti and Blenkinsop demonstrate the shortcomings of traditional discretionary trust deeds, in particular in relation to the rights, duties and liabilities of appointors and guardians, their replacement and providing for successors”, Grahame said.

Grahame will outline the issues surrounding trust deeds and will suggest innovative approaches for drafting new deeds and amending existing deeds.

“In many cases problems can appear intractable because transfer duty, CGT or court costs can make resolution prohibitively expensive. I will put forward suggestions how new deeds should be drafted, or current deeds amended, to minimise the problems”, he said.

“This is not a perfect world and there are no perfect solutions, but there are techniques to help get around the issues that arise under current deeds, even where deeds cannot be amended or changes can’t be made as to successors.” 

Asked what delegates will take away from his session, he said, “Delegates should leave with a better appreciation of the opportunities to implement family succession planning so as to avoid conflicts between family members, or to make succession plans robust in case of challenge.”

Grahame has now practised solely as a barrister from Francis Burt Chambers for more than 15 years. His principal areas of practice include transactional taxes; equity, trusts and succession; corporate law; and property law. He is Editor of Duties Legislation Western Australia, and has served as State Chair and National Councillor of The Tax Institute and has received our Meritorious Service Award. 

“Recently my interest in transactions and restructuring has included an intense focus on family discretionary trusts in relation to generational succession, often through providing for succession to the offices of appointor and guardian," he told us. "I have a particular interest in the lessons that can be learnt from the analogous office of protectors in offshore trusts.”

Asked about the potential blind spots in this area of practise, he said, “In my experience, they come from a failure to appreciate subtle differences between trust deeds and assuming that what is possible under one is possible under another. Although the issue of resettlement no longer looms as the obstacle it was before Clark, transfer duty presents risks on a number of fronts.”

Grahame told us that, when he’s not knee-deep in tax, “I have played hockey for many years, but knee problems have restricted me this year. This has left more time for grandchildren and a growing interest in gardening (excuse the pun).”

Grahame’s session will be one of many that look at issues facing SME businesses at the Convention, including Mark Pollock CTA (BDO) on ‘Emerging issues for private businesses conducted via trusts’ and a session from Richard Friend CTA (Balena Tassa Pty Ltd) on ‘Division 7A - dealing with the here and now’, which examines issues with lending to unit trusts and partnerships, among other things.

You can find out more about Grahame’s session, and the rest of the program for the 50th Western Australia State Convention, on our website. Join us on 17-18 August 2017 at Crown Perth.

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