Your client's trust deed has blanks. The date line reads “THIS DEED made the ... day of ... 198 ...”. The Appointor clause is empty. The trust name is blank in cl 1(r). Nobody noticed for nearly 40 years.
That was the position in Michelakis v Kalumic Pty Ltd [2026] NSWSC 276 (25 March 2026).
The Facts
A discretionary family trust from November 1987. Three blank fields: the date of execution [4], the Appointor at cl 1(p) [6], and the trust name at cl 1(r) [7]. One stamped copy existed but could not be found [10]. The trustee changed its name from Badcary Pty Ltd to Kalumic Pty Ltd in 2016 [3].
Mrs Michelakis, a primary beneficiary [2], sought orders under s 86A of the Trustee Act 1925 (NSW) to insert the date, appoint herself as Appointor, and declare the trust name [11].
The Court's Approach
Hammerschlag CJ in Eq drew a critical distinction between variation, rectification, and declaration [16].
The Appointor. The Court approved an arrangement to vary the Deed by appointing Mrs Michelakis as Appointor under s 86A(1)(a) [17]-[18]. The order was stayed for 14 days to allow the secondary beneficiary (NextSense) to be heard [18]. Her evidence did not address whether she was the intended Appointor - she and the other primary beneficiaries consented, and the Court found her plainly appropriate [13].
The date and trust name. Not variations. Not rectification, there was no error, only omission [16]. The frontispiece, the letter of instruction, and surrounding circumstances confirmed the trust was made on 5 November 1987 and named “The Michelakis Family Trust”. The Court made declarations.
That distinction matters. A declaration confirms what already exists. A variation changes the trust. The relief must match the problem.
Why This Matters
Trust deeds from the 1980s and 1990s are known to possess some of these defects. Pro forma precedents with blank fields. Appointors never named. The problems surface when they matter most: on a sale, a restructure, a family dispute, a death.
The Appointor power is often the most important governance mechanism in a discretionary trust. Under cl 22 of this deed, the Appointor holds power to remove the trustee, appoint a new trustee, and vary the deed (other than the trust name or vesting date) [9]. Without an Appointor, those powers were not exercisable.
Michelakis confirms the pathway. Section 86A can be used to approve an arrangement varying the deed to appoint an Appointor. Declarations can resolve blanks where the evidence establishes what was always intended. But standing under s 86A(2)(b) is required, and the secondary beneficiary must receive adequate notice.
How many of your client's trust deeds have blanks you haven't checked?
General information only. This note was written as at 30 March 2026 and the law may have changed since. 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.