Similar to the issue in Re Gainer above, instead of having a lost trust deed, the trust deed in this case did not have a variation clause, and the trust vesting date was spotted as coming up in about 5 years.

In this decision of the Victorian Supreme Court, the applicants to the Court also sought to include Bamford income streaming provisions in the amended trust deed as well as company and trust beneficiaries in which one of the original trust beneficiaries held any share or interest (which we usually see in modern trust deeds - this one was from 1972). Why not?

The Court found that all variations could be made by order of the Court to be sufficiently for the benefit of the trust beneficiaries even though there was a tax benefit element to all of the requests.

But the Court held it could not determine any benefit or detriment to the beneficiaries of the trust by adding in a general power of amendment similar to the typical variation clause we see at the end of a discretionary trust deed, which is demonstrated by practitioners using a broad variation clause to change just about anything about a discretionary trust deed supported by e.g. rulings that this would not cause a resettlment of the trust if the variation clause is followed.

The Court also refused the bucket company beneficiary addition request for a more restricted version where a beneficiary had to have a controlling interest in the proposed bucket company and not just any minimum 1% interest.

These types of trust deeds appear very rarely and often depending on the assets in the trust and their use it is often chosen to follow an allowed pathway by ATO private ruling to reasonably conclude that a variation will not resettle the trust, if the variation clause is merely deficient and not completely absent as it was in this case.

Make sure you check the page and clause numbers and telltale signs of whether a variation clause is hidden in a miscellaneous powers clause or cut off by the photocopies to be sure that the variation clause wasn't in the original trust deed before going to court to obtain a costly variation, and this case sets an example to bring along a bucket list of variations to ask for the court's approval (including a foreign beneficiaries exclusion) but ultimately to not grow the trust anymore and setup a new one for any property acquisitions.