A ‘vesty trust’ and how it can be used – Ian Rodrigues

A ‘vesty trust’ and how it can be used – Ian Rodrigues

Do you know what a ‘Vesty Trust’ is?  I didn’t and Nick wanted to know, so I called on Ian Rodrigues to help me understand.  He tells us about what it is and who and how it can be used.

Kevin:  I’m going to answer a question now that came to me, and I have to say I was a little bit baffled about this one. Nick sent it in to me about a week ago. It was in response to an interview that I did about asset protection, and he was asking whether I knew about a vestey trust. I Googled it, a bit of a gray area, so I’m checking in now with Ian Rodrigues from Bishop Collins Group.

Ian, thanks for your time. I know you pulled up on the side of the road to have a talk to us. Thank you for doing that. I know we’re getting you without too much notice, but a vestey trust; tell me what you know about that.

Ian:  Kevin, the trust deeds that you can buy, you can get a range of trust deeds from pretty standard trust deeds for a few hundred dollars, or you can get specialist lawyers or barristers who have their proprietary trust deeds for quite a lot of money, thousands of dollars. All of them essentially do the same thing, but the vestey trust will be another one of these trusts that the promoter or the constructor or innovator of the deed says does some special things.

Kevin:  From my reading of it, it relates to a wealthy English family, Lord Vestey. I found it very hard to work my way through, probably because as you said, they’re all pretty much the same.

Ian, can you just give us some advice about what you’d suggest if anyone is confronted, as Nick is, with the opportunity to get into something like this. What should they do? What questions should they be asking?

Ian:  Nick should be looking at whether this trust deed is suitable for his purpose. The historic purpose of trusts was to hold assets for people and divide it up the way the person who set up the trust wanted to do it.

At the moment in Australia, mostly trusts are used to hold ownership of businesses or assets amongst families, with a family or discretionary trust, or a unit trust where there are fixed interests. But trust are also used to protect assets from the claims of creditors and other people, where you are taking risks where you could have a problem in one business and if it’s not structured properly, it could bankrupt the entire business empire. So, there are very legitimate uses for these trusts.

As to whether a vestey trust does that particularly well or not, I believe Nick needs to be getting some independent advice from his own lawyers about what this trust deed says and does. A lot of bankruptcy law has been changed over the last few years, specifically in relation to trusts and overriding what the law has been to make sure that creditors can claim against certain assets.

Nick needs to get some pretty solid advice, not from the seller of this trust deed – they have a vested interest in selling you the trust deed – but independent legal advice to see whether this trust deed does what it says it does and whether it’s relevant to Nick. If Nick just has a job as an employee and he’s not conducting any business, what risk is he trying to protect himself from?

Kevin:  You made a very good point, too, right at the front, where you said most trust deeds are pretty much the same, only some just offer protection in certain areas. Is it fair to say that most trusts have some kind of restriction to them? That’s the reason they’re there, to give some solid protection in certain areas, Ian?

Ian:  By putting an asset into a trust, you ultimately give up some control over the asset, but there are rules in there about the construction of the trust and who can remove appointors and all sorts of things. It all gets very complicated and very legalistic.

They’re the things that come out, and when there’s a bankruptcy or a claim against assets, there are lawyers at ten paces looking for every angle on how they can access an asset. And the larger and messier the claim, the more determined they will be to challenge every part of your structure.

A lot of trusts, people have them there with this notion that they’re protecting their assets, but in 99% of cases, they never actually get tested. When they do get tested, that’s when you want to know that they have been set up right.

Kevin:  I guess it gets back to your earlier advice to make sure that Nick or anyone who’s confronted with this situation gets some independent legal advice.

Ian, thank you so much for your time. Ian Rodrigues has been our guest from Bishop Collins Group. Thanks for your time, Ian.

Ian: No problem, Kevin. All the best.

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Kevin Turner
kevin@realestatetalk.com.au
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