Article on Discretionary Trusts

Sarah A. Hinchliffe (Fellow and Specialist, University of Melbourne) recently published an article entitled, A Horse is a Horse – Of Course? The ‘Discretionary’ Unit Trust – More than Meets the Eye, (Aug. 9, 2012). The abstract on SSRN is provided below:

This article examines the ‘substance’ of a discretionary unit trust and analyses Australian courts’ approach to classifying beneficial entitlement under such a trust. The article concludes that there exists a fallacy in the reasoning that appears to have been adopted by judges and commentators prior to CPT Custodian Pty Ltd v. Commissioner of State Revenue (Vic) (2005) 224 CLR 98, and which may resonate in subsequent cases. In the context of trust law, however, it should be noted that the unit holders of a unit trust will have such an interest despite any terms in the relevant trust deed which may be interpreted as potentially having an effect that is to the contrary.