The family said the trustee had changed in 1999. The deed required the appointors to act jointly and in writing.
A Full Court decision is a sharp reminder that intentions and family understandings do not change trustees, the deed does.
In Di Paolo v Secretary, Department of Social Services [2026] FCAFC 1, the trust deed required the Appointors to act jointly and any trustee removal or appointment to be “in writing”.
The problem
The documents relied on were inconsistent, some appeared altered or backdated and critically there was no evidence all Appointors executed the change as the deed required.
Later letters saying the trustee had changed were treated as having no legal effect because they did not actually implement the deed’s mechanism.
The practical takeaway
- Read the deed (who has the power? trustee? appointor? do they have to act jointly?).
- Follow the deed’s process exactly (form, signing parties, execution requirements).
- Use a proper deed of retirement or appointment (and keep clean, consistent versions).
- Do not assume a later letter or minute “fixes” a defective change.
Everything else in the case flowed into social security attribution and control outcomes.
My strong view: changing trustees and amending trust deeds is legal instrument work. Accountants are essential for tax modelling and compliance, but the deed change itself should be drafted or reviewed and executed under a qualified lawyer’s guidance so it actually works when tested.
General information only. This note was accurate when written. The law may have changed since and the note is not updated. It is not legal or tax advice, does not take account of your circumstances and must not be relied upon as a substitute for advice on your own matter. If the issue is live for you or your client, email arda@nortonquaytaxlaw.com.au for advice on the current position.