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Accumulation in Charitable Trusts: Australian Common Law Perpetuities Rules

Citation

Murray, I, Accumulation in Charitable Trusts: Australian Common Law Perpetuities Rules, Journal of Equity, 9 pp. 30-65. ISSN 1833-2137 (2015) [Refereed Article]

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Abstract

This article explores the application of perpetuities rules to the accumulation of income by charitable trusts, focusing on the Australian jurisdictions in which relevant statutory accumulation constraints have been abolished. Recent work by Sitkoff and Horowitz in the context of United States perpetual testamentary family trusts demonstrates that perpetuities rules can be easily overlooked, with adverse consequences for accumulation validity and potential breach of duty by trustees. Neglect of perpetuities rules poses the risk of similar consequences for Australian charitable trusts, which is a significant issue, given the large number of such trusts and the substantial quantum of assets that they hold. Accordingly, the article considers whether abolition of statutory constraints against accumulation permits unfettered accumulation by charitable trusts or whether underlying common law perpetuities restraints apply and, if so, whether those restraints preclude accumulation. It is asserted that the common law rules do not apply in South Australia and that while there is an argument that they apply to charitable trusts in Tasmania and the Northern Territory, the better view is that they do not restrict charitable trust accumulation. Nevertheless, the level of risk that the perpetuities rules preclude accumulation, with consequences for the destination of the accumulated income and breach of trustee duties, varies between Australian jurisdictions. The analysis therefore concludes by considering the potential impact of this varying risk level on present practice.

Item Details

Item Type:Refereed Article
Research Division:Law and Legal Studies
Research Group:Law
Research Field:Taxation Law
Objective Division:Expanding Knowledge
Objective Group:Expanding Knowledge
Objective Field:Expanding Knowledge in Law and Legal Studies
Author:Murray, I (Mr Ian Murray)
ID Code:104307
Year Published:2015
Deposited By:Faculty of Law
Deposited On:2015-11-09
Last Modified:2016-09-12
Downloads:0

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