Essentially a trust is a legal relationship governed by the trust deed. A trust is not a legal entity in itself.

The relationship is between the trustee who holds the assets on trust – and those assets are held for the benefit of the beneficiaries - who can be discretionary beneficiaries who only receive benefits at the discretion of the trustee or unit holders who are entitled to a share of the income and capital of the trust much like shareholders in a company. 

The relationship is in the trust deed, it is the instruction manual on how the assets are to be managed and distributed for the benefit of the beneficiaries. It contains the list of who the beenficiaries are, it contains the powers of the trustee, the provisions for replacement of the trustee, and how the trustee is to make distributions to the beneficairies and everything else governing the trust relationship.

A trust can be seen as a relinquishing of control over valuable assets to be dealt with by someone you can trust in accordance with an instruction manual.

What we call fiduciary duties are basically where the ‘fiduciary’ is bound by law to place the interests of the beneficiaries above their own and this is not just specific to trusts (e.g. lawyer owes fiduciary duties to their client) but the word fiduciary comes from the latin word fidere meaning ‘to trust’ and the origin of the trust being the ‘trusted friend’ of a knight who would leave family and land property to fight a crusade while the trusted friend would look after their property on the knight’s behalf

The trust deed usually contains other protective mechanisms such as offices, the holder(S) of which can hire and fire the trustee if the trustee acts in a way they do not like but more practically where the trustee is of unsound mind, being deregistered as a company or may be otherwise unable or unwilling to act properly as trustee of the trust.

The trustee is the central manager of the trust and the trust grinds to a halt if the trustee cannot act. Investments cannot be made and managed. Accounts cant be kept and signed off by the trustee. And importantly the distribution of assets cannot be done.

This is the fundamental mechanism of the trust for it to function practically as intended. A trust will still exist without a trustee as the three certainties are the beneficiaries, the assets and the certainty of intention being the trust deed itself but the trust can't do anything without a trustee and if the trustee doesn't exist say it was rmderegistered and it did things purportedly while it was not in existence you have problems as to legally what happened (so many of you order deeds of confirmation) 

Without a trustee, the trust becomes stuck, and by a simple act of replacing the trustee, the appointor (or sometimes called the principal) can replace the trustee so that the trust becomes unstuck. You will see that our strategic choices of items to review include other important points that if not checked can have similar consequences for the trust.

A review is like a checkup you don't come necessarily with a problem it's preventative. It won't prevent every possible issue that could arise – its strategic not all encompassing – and there is no such thing as an all encompassing trust deed review – definitely not at this price - it checks the fundamental mechanisms of the trust to put into place some popular measures to avoid significant issues in the future. 

Its not about bespoke tax advantages it's not about fixed or non fixed trust clauses or conversions we have these but you need to specifically know what you want for those. 

Now broadly these are discretionary trusts, unit trusts, hybrids between the two as the main types but there are also many special types such as SMSFs pharmacy trusts, farm trusts, special disability and super proceeds trusts, bare trusts, escrow arrangements and testamentary trusts in wills.

Choosing a pharmacy, farm, special disability super proceeds or SMSF or a will should be easy for you as they are all for a clear specific purpose and you should we better equipped than me to explain to your clients why they would choose them and what special benefits they would provide and importantly all the required criteria that the client needs to satisfy to be eligible for whatever stamp duty or other tax exemption or discount that is sought. We will focus on the main types today of the unit trusts, discretionary and briefly mention the hybrid.

Trust deeds all come down to how they are worded as regularly said "read the deed". If it doesn’t state something then theres a risk that someone will interpret the trust deed as not allowing it and there is an old rule that the trustee’s paramount duty is to adhere rigidly to the terms of the trust deed I believe the source decision was Youyang v Minter Ellison. 

Which is why the trust deed needs to be reviewed and you can’t make assumptions even that the elements of the trust deed are not badly worded.