Ayesha Khan is the daughter of Salman and Huma. Until they retired, Salman and Huma operated a successful business in Melbourne importing engineering components from Karachi. Thirty years ago, Salman and Huma’s accountant advised them that they should set up a discretionary trust for tax purposes, which they did. This trust is now the subject of a dispute between Ayesha and her brother Waqas. The terms of the trust are set out below.
In 1992, once the trust was established, Salman and Huma transferred to the trustees (themselves jointly with their friend Barnabas as in the terms below) their holiday home in North Portsea and all their shares in the company through which they operated their business. The trustees were to hold this property on the terms of the trust as per clause 1(b). Salman and Huma gave a letter of wishes to themselves and Barnabas as trustees expressing their wishes for the trust. In it they said that the purpose of the trust was to look after themselves first, and second, to provide a flexible way to give benefits to their children and relations. The trustees paid income to Salman and Huma whenever they wanted it and they used the holiday house whenever they wanted.
Waqas worked in his parents’ business continuously after completing a commerce degree at La Trobe in 2002. In 2012 he was appointed managing director of the company by the trustees. In 2017, sadly Huma died, and Salman retired from the business. This left Waqas as sole director. Under his management the business has continued to grow at a modest pace. Waqas is paid a reasonable salary for his role.
In 2018, after her mother’s death, Ayesha returned to Melbourne permanently to be near her father for the last years of his life. She had been living in London where she had an important role as a corporate takeover lawyer. After she returned, she frustrated Waqas immensely as every couple of weeks she would give him unsolicited advice on how to run the family business.
Waqas felt threatened by his sister’s return and did not want her interfering with the business, which he felt entitled to receive as his inheritance. In 2020, Waqas asked his father to make him a trustee of the trust. Salman agreed he was having trouble remembering to have trustee meetings so added Waqas as an additional trustee alongside himself and Barnabas. In 2021, Waqas persuaded Salman to make Waqas an additional Protector of the trust in case Salman developed Alzheimer’s disease. Waqas convinced Salman that Ayesha was too busy with setting up her legal business in Melbourne to be interested, and Salman forgot to ask Ayesha if she wanted to be a Protector too.
In January 2022, Salman died. This left Waqas as the sole Protector of the trust. Waqas removed Barnabas and himself as trustees and appointed a new company he had set up to be the sole trustee. Waqas is the sole shareholder and sole director of the corporate trustee.
When Ayesha went to discuss winding up their parents’ affairs with her brother, he told her about the changes to the Protectorship and Trusteeship for the first time. Ayesha was furious.
Ayesha seeks your advice on what claims she might have against Waqas directly. Ayesha thinks that Waqas’s appointment of a company he controls and removal of the independent trustee are wrongful. Advise:
- whether Waqas’s role as Appointor involves a fiduciary relationship with Ayesha, and
- if Waqas is a fiduciary, whether Ayesha is likely to succeed in having him removed as Appointor for breach of duty or otherwise.
If you conclude that the answer to 1) is that there is no relationship you should still answer 2) in the alternative. You can say something like, ‘in the event my conclusion above is incorrect, the second question for Ayesha’s claim is…’
Khan Family Trust
THIS deed is made by me Salman Khan of 71 Peace Avenue, Ringwood in Victoria, businessman and me Huma Khan of 71 Peace Avenue, Ringwood in Victoria, businesswoman.
1 The property of the Khan Family Trust (the Trust)
The property of the Trust (the fund) includes:
- the initial $100 paid by me to the Trustees;
- any property which is transferred to the Trustees to hold under the terms of the Trust;
- property added or accumulated to the fund from time to time; and
- the proceeds of any loan taken out by the Trustees on behalf of the Trust.
2 Beneficiaries of the Trust
- The beneficiaries of the Trust are the primary beneficiaries and the potential beneficiaries.
- The ‘primary beneficiaries’ are Salman and Huma Khan.
- The ‘potential beneficiaries’ of the Trust are the following persons, whether alive at the execution of the trust or coming into existence thereafter:
- the issue of the primary beneficiaries;
- the issue of the grandparents of the primary beneficiaries;
- any spouse or child or children of any of the persons specified in the preceding paragraphs;
- subject to subclause (3), a trust, company or other entity in which a person mentioned in the preceding paragraphs has an interest, whether absolute, direct, indirect, present, contingent or expectant, or is a director or shareholder;
- a charity or charitable entity; and
- an entity recognised as a deductible gift recipient entity under Australian taxation law.
(3) To the extent that the inclusion of any trust or person as a beneficiary under the Trust would cause the Trust to be invalid for any reason whatsoever, that trust or person is not a beneficiary of the Trust.
3 The Protectors
- ‘Protectors’ means Protector if there is only one and vice versa.
Subject to subclause (8),the primary beneficiaries are the initial Protectors.
- The Protectors may, in writing, in the Protectors’ discretion (or Protector’s discretion if only one), do any one or more of the following:
- appoint one or more Trustees;
- appoint themselves as Trustees or sole Trustee; and
- remove one or more of the Trustees.
- The Protectors may, in writing, in the Protectors discretion (or Protector’s discretion if only one) appoint another person or persons as Protector or Protectors, to act with or instead of the Protectors.
- A Protector may resign.
- If a Protector, not being a sole Protector, dies or ceases to be a Protector the remaining Protector is the Protector.
4 Trustees of the Trust: definition and appointment
- ‘Trustees’ includes Trustee and vice versa;
- the initial ‘Trustees’ at the execution of this deed are Salman Khan, Huma Khan and Barnabas Lovejoy.
- ‘Trustees’ means those appointed under this cl 4 or cl 3 of this deed who have not at that time ceased to be Trustees, and ‘Trustee’ has a corresponding meaning;
- The Trustee or Trustees may be or include a professional trustee or professional trustees or a corporate trustee.
- If there is no Protector, then the Trustees have the power to appoint additional trustees.
- If the last surviving Trustee dies or ceases to be Trustee then the court will appoint replacement trustees.
5 Exercise of Powers by the Trustees
- The Trustees may exercise the powers given in this will even if a Trustee or sole Trustee is a beneficiary.
- The Trustees may exercise any of the following powers in the absolute discretion of the Trustees:
- make distributions of income of the fund, to any one or more of the primary beneficiary and the potential beneficiaries and in such amounts and at such times as the Trustees choose;
- make distributions of capital of the fund, to any one or more of the primary beneficiary and the potential beneficiaries and in such amounts and at such times as the Trustees choose;
- retain all or part of the capital or accumulate all or part of the income of the fund, for any period permitted by law;
- refrain temporarily or permanently, from distributing or providing income, capital or other benefits from or relating to the fund, to any one or more or all of the beneficiaries;
- exercise the General powers of Trustees under cl 6.
- The Trustees, if more than one, must make decisions unanimously.
6 General powers of Trustee
[Standard management powers not relevant to the problem]
7 Investment of the fund
[Standard investment powers not relevant to the problem]
8 Ending of the Trust
- The Trust ends on the first to occur of any of the following:
- at the expiry of a period of 80 years from the execution of this deed; or
- upon the Trustees’ resolution to end the trust earlier than 80 years.
- When the Trust ends, the balance of the Trust fund vests:
- either in the beneficiaries in the proportions the Trustees in their absolute discretion thinks fit; or
- if the Trustees do not exercise their discretion, equally in the children of the Principal Beneficiaries.
9 Conflicts of interest
No person, being a Trustee or a director or shareholder of a corporate Trustee, is required to obtain independent legal advice or an order of court before exercising a power or discretion conferred on her or him by this deed or by law, or is precluded from exercising the power or discretion, merely because the person exercising the power or discretion:
- has or may have a direct, indirect, or personal interest, whether as shareholder, director, member, or partner of any company or partnership, or otherwise, in the manner or result of exercising such power or discretion; or
- may have a conflict of fiduciary duty in the method or result of exercising the power or discretion; or
- may benefit directly or indirectly as a result of the exercise of any such power or discretion; or
- is the sole Trustee.
- Definitions: ‘children’:
- (a) means biological or adopted children; and
- (b) includes a child;
‘spouse’ (and ‘spouses’ has a corresponding meaning) in relation to a person means:
- (a) the husband or wife of the person at any time; and
- (b) the partner of a person, of the same sex or different sex (however described), with whom the person has been living at any time in a marriage- like relationship or domestic relationship;
‘trustee’ includes ‘trustees’ and ‘trustees’ includes ‘trustee’, both subject to context;
‘protector’ includes ‘protectors’ and ‘protectors’ includes ‘protector’, both subject to context.
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