The recent Victorian decision of
Re Owies Family Trust [2020] VSC 716 reinforces the importance of checking variation powers in trust deeds and ensuring they are wide enough.
Re Owies Family Trust involved a dispute between brothers and a sister (all adults) over how a family trust established by their parents in 1970 had operated for the last years of their parents lives, and would operate into the future. The trust held substantial assets including an apartment in Melbourne where one of the parties lived.
There were many issues in dispute. Over the years the trust deed had been varied to change the identity of the appointor and the guardian from the parents to ultimately one of their children. The first issue was whether the variation clause in the trust deed allowed the person who was appointor and guardian to be changed. If the variations were effective, the child was the appointor and the guardian with particular powers. If not, the trust no longer had an appointor or a