Trusts in Australia

By on 15 Apr, 2022

Overview and Taxation of Trusts What is a Trust The principle of trust, or “Fideicommissum”, dates back to circa 200 BC, first mentioned by Publius Terentius Afer in the Roman comedy of Andria at 290–98 “tuae mando fide”, meaning “I commit to your faith”. The concept of Trust was used by the Romans where a testator would appoint a trustee as heir acting as a fiduciarius entrusted with passing the inheritance on to the beneficiaries, the so-called fideicommisarius. Around the 12th century and under the jurisdiction of the King of England, the first inter vivos Trust was developed which permitted the transfer of an asset or gift made during one’s lifetime, as opposed to a testamentary transfer that takes effect on the death of the giver. A Trust, therefore, is a fiduciary relationship in which one party, known as a Settlor, gives another party, the Trustee, the right to...

Testamentary Trusts

By on 26 Mar, 2022

What is a Testamentary Trust? A testamentary trust is a form of trust that is created under the terms of a will or a codicil of a will. It comes into effect only after the death of the testator/testatrix, the person who made the Will. The trustee of a Testamentary Trust may be the executor of the deceased estate or some other person, who will be appointed by the Will. As the trustee has full control in managing the assets, careful consideration must be given to protecting the beneficiaries from dishonesty or even incompetence. However, trustees (and executors) have the duty to act with due diligence, impartially, perform the trusts honestly, in good faith, and for the benefit of the beneficiaries. “The duty of a trustee to perform the trusts honestly and in good faith for the benefit of the beneficiaries, and the same applies to executors, is the minimum necessary to give substance to...