Variation of Trust by the Court

Queensland, South Australia, Tasmania, Victoria and Western Australia but not New South Wales, have each enacted legislation empowering the court to vary or revoke the terms of a trust on the application of certain persons, of whom the trustee is one.

The South Australian provision in s 59C of the Trustee Act 1936 (SA) is more restrictive than its counterparts in Queensland {s 95 Trusts Act 1973 (Qld}, Victoria {s 63A Trustee Act 1958 (Vic)} and Western Australia {s 90 Trustee Act 1962 (WA}.

Although New South Wales does not have a specific section empowering the court to vary trusts, such a power is in fact given in the section which, in that State alone, empowers the court not only to vary the trustee’s powers, but also to vary or even revoke the beneficial interests themselves, under the court’s general power to sanction expedient transactions {s 81 Trustee Act 1925 (NSW)}.

Also refer to Re Trustees Act 1962 [2003] WASC 39.

These provision derive from the Variation of Trusts Act 1958 (UK) which was passed to remedy the court’s jurisdictional deficiency as exposed in the decision of the House of Lords in Chapman v Chapman [1954] AC 429.

Also refer to Trustees of the British Museum v Attorney General [1984] 1 All ER Ch D 337 and Mason v Farbrother [1983] 2 All ER 1078.

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