Understanding Trust Protectors - Professor Katy Barnett (Melbourne Law School)

Understanding Trust Protectors - Professor Katy Barnett (Melbourne Law School)

In this episode of Trusts Talk, Mark Bennett and Adam Hofri-Winogradow interview Professor Katy Barnett [https://law.unimelb.edu.au/about/staff/katy-barnett] of Melbourne Law School about Australian trust law, the role of protectors, appointors and guardians, and the fiduciary limits on trust powers. Professor Barnett’s recent open-access article, “Protectors and guardians: observations from Australia” [https://academic.oup.com/tandt/article/30/7/407/7688503], provides a useful companion to the episode. For those with access, her paper “‘Pistols at dawn’ and the powers of trustees, appointors, and guardians: who comes trumps in a dispute over a family trust?” [https://search.informit.org/doi/10.3316/informit.T2025111800017901814377867] is also available. The conversation begins with Australia’s unusually strong equity and trusts tradition. Barnett traces this tradition back to early colonial legal history, including the 1808 Rum Rebellion [https://www.sl.nsw.gov.au/stories/1808-rum-rebellion], and to the Burwood Estate litigation discussed in her and Lynne Barnett’s article, “‘Equity’s Darling’ and the Burwood Ejectment Case: A Turning Point in Colonial Australian Law” [https://papers.ssrn.com/sol3/papers.cfm?abstract_id=6139047]. Barnett then turns to modern Australian trust practice. She explains how highly discretionary family trusts often use appointors, guardians or protectors to supervise corporate trustees and control succession within family wealth structures. These offices can be useful, but they can also produce intense control disputes. For recent Australian examples, see Staley v Hill Family Holdings Pty Ltd [2025] QCA 95 [https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/qld/QCA/2025/95.html], and Mercanti v Mercanti [2016] WASCA 206 [https://www.austlii.edu.au/au/cases/wa/WASCA/2016/206.html]. Barnett warns against assuming that the family patriarch, matriarch or dominant family figure is necessarily the best person to hold a control office. The episode discusses “battle of the deeds” scenarios, disputes over trustee removal powers - with reference to Cihan v Cihan [2022] NSWSC 538 [https://www.smsfadviser.com/smsf-appointors-perhaps-permissible]and the need to specify whether particular powers are fiduciary, personal, constrained, or subject to procedural requirements. The discussion then moves to fiduciary duties. Barnett distinguishes between the strict core of fiduciary law — especially the no-conflict and no-profit rules — and broader uses of fiduciary language that include duties of proper consideration, decision-making process and trustee deliberation. The episode also connects protector powers to the problem of settlor control and illusory trusts. Key cases include New Zealand’s Clayton v Clayton [Vaughan Road Property Trust] [2016] NZSC 29 [https://www.nzlii.org/nz/cases/NZSC/2016/29.html], and the English High Court’s decision in JSC Mezhdunarodniy Promyshlenniy Bank v Pugachev [2017] EWHC 2426 (Ch) [https://www.bailii.org/ew/cases/EWHC/Ch/2017/2426.html]. (See also Mark's “The Illusory Trust Doctrine" [https://ojs.victoria.ac.nz/vuwlr/article/view/6568/5730] )

Dr Sara Adami-Johnson on the Psychology and Practicalities of Art Succession Planning

In this episode of Trust Talk, hosts Mark Bennett and Adam Hofri talk with Dr. Sara Adami-Johnson, Vice President of High Net Worth Planning Services at RBC Wealth Management, to discuss the intricacies of international estate planning, family psychology, and the complexities of managing art as an asset class. Drawing on her background in law, finance, and positive psychology, Dr. Adami-Johnson explains how she acts like a detective to uncover the unspoken rules, emotional dynamics, and unique governance structures that exist within wealthy families. The conversation then takes a deep dive into the highly subjective world of art valuation, exploring how provenance, authenticity, condition, and shifting cultural perspectives impact a collection's worth. Dr. Adami-Johnson highlights the common pitfalls of passing down art without a proper will or tax plan, the strategic use of trusts and foundations for dynastic collections, and the evolving debates around preservation and restoration. Follow Dr. Sara Adami-Johnson on LinkedIn https://www.linkedin.com/in/smjohnsoncdn/ [https://www.linkedin.com/in/smjohnsoncdn/] We discussed Te Motunui Epa, a Māori carving that had an amazing story, which has been told by Dr Rachel Buchanan (Taranaki, Te Ātiawa), in her book Te Motunui Epa (Bridget Williams Books, 2022). See this story for more details: https://www.rnz.co.nz/national/programmes/labourday/audio/2018817736/the-tale-of-the-motunui-epa [https://www.rnz.co.nz/national/programmes/labourday/audio/2018817736/the-tale-of-the-motunui-epa]

Richard Grasby on Offshore Trusts Practice from Hong Kong

In this episode of Trust Talk, hosts Mark Bennett and Adam Hofri talk trusts with Richard Grasby, an offshore regulatory trusts and private wealth lawyer based in Hong Kong who specializes in the laws of jurisdictions like the Cayman Islands and the British Virgin Islands. Richard explains that high-net-worth clients primarily utilize modern offshore trusts for confidentiality, probate avoidance, succession planning, and protection against political instability or regime changes, rather than simple tax planning. A recurring challenge in the industry is the delicate balance of control; settlors often want to retain strict power over their assets, but treating a trust like a personal ATM makes it highly vulnerable during divorce proceedings and invites strict tax scrutiny. Furthermore, global transparency initiatives like the Common Reporting Standard (CRS) are forcing settlors to reduce their formal powers to avoid being flagged as controlling persons. Despite global pushes for transparency, the offshore trust remains highly relevant; to combat geopolitical uncertainties and cyber threats, clients are increasingly diversifying their structures by separating the trust's governing law from the trustee's physical location, such as pairing a Cayman law trust with an independent trustee based in Singapore or Switzerland. Follow Richard on LinkedIn or through the Appleby website for further insights into this complex and evolving field. https://www.linkedin.com/in/richard-grasby/ [https://www.linkedin.com/in/richard-grasby/] https://www.applebyglobal.com/people/richard-grasby/ [https://www.applebyglobal.com/people/richard-grasby/]