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For any number of reasons, it may be important to amend your trust deed and it is important that proper drafting has been effected from the outset, so that, amongst other things, the trust deed has a provision regarding amendments.  Obtaining sound Taxation and Superannuation legal advice from a qualified Private Client Lawyer is important, to ensure that your trust deed is appropriately drafted to cater for all your needs and goals.

To effect an amendment to a trust deed, certain procedures needs to be completed.  One such usual requirement is the obtaining of consent from the appropriate parties. In some trust funds, members' consent must be obtained where a proposed amendment may have an adverse effect on the members' benefits, or impact on the level of the trustees duties or obligations. In a regulated superannuation fund, a beneficiary's right or claim to accrued benefits must not be altered adversely by amendment to the governing rules. The prohibition does not apply if the members consent to the proposed amendment.  Although a trust deed is unlikely to specify that the consent of the relevant union is required, in practice, members' consent may be easier to obtain with the assistance or concurrence of that union.

In an employer-sponsored fund, if an amendment power is not conferred on the principal employer, the exercise of the amendment power is usually subject to the consent of that employer. Additionally, the amending power may provide for the consent of other employers (or a specified number of them). This generally relates to the situation where other employers (in addition to the principal employer) are contributing to the fund and the proposed amendment will impact on the level of the employers' contributions to the fund.

Where the power of amendment is conferred on the principal employer, it is commonly provided that the power is exercisable subject to the consent of the trustee. In terms of a regulated superannuation fund, approved deposit fund or a pooled superannuation trust, in broad terms, the governing rules must not (subject to minor exceptions) permit the rules to be amended without the consent of the trustee

Any trust deed should usually and ideally clearly specify the form required to effect an amendment; however, regardless of the form an amendment must take, a resolution to amend the deed in the proposed manner must generally be made.

Where a power is conferred on a trustee to amend the deed and the trustee intends to use that power, the trustee must usually resolve to do so. Resolutions should be recorded in the minutes of the trustee meetings and should specify the terms of the proposed amendment and that the requirements of the amending power and any limitations imposed by Superannuation Law have been complied with, if that is in fact the case. Additionally, where the trustee is a company, any resolution must meet the formal requirements specified in the company's Articles and Memorandum of Association and/or otherwise set out at law.

If you need legal advice generally or about a proposed amendment to your Superannuation Trust Deed, you may book an appointment with us by telephone on 02 9233 4048 or by email to info@navado.com.au.  

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This webpage (and any material or wording appearing on this webpage) is provided for general information purposes only and does not constitute any Tax or Accounting Advice. It does not take into account your objectives, financial situation or needs or your instructions or all of the relevant facts and/or circumstances. Navado accepts no responsibility to any person who relies on the information provided on this website. We further refer you to our Disclaimer.

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