Deed of Variation of Discretionary Trust (Foreign Person Exclusion) (NSW)
Amend your family trust to permanently exclude foreign persons, so the trust can avoid NSW surcharge purchaser duty and surcharge land tax.
Before you start
- Why this deed matters: Revenue NSW treats the trustee of a discretionary trust as a foreign trustee, liable for surcharge purchaser duty and surcharge land tax on NSW residential land, unless 2 tests are met before the liability date: no potential beneficiary of the trust is a foreign person, and the trust deed cannot be amended in a way that would let a foreign person become a potential beneficiary. This deed is designed to meet both tests, and the amendment it makes is irrevocable.
- Timing: the deed must be validly made, signed and dated before the liability date. For surcharge purchaser duty that is generally the date of the dutiable transaction, usually exchange of contracts. For surcharge land tax it is the taxing date of 31 December before the land tax year. The period that allowed existing trusts to amend with backdated effect ended on 31/12/2020, so this deed works only from the date it is made.
- Duty already paid: if surcharge purchaser duty has already been assessed, Revenue NSW allows a refund application after settlement only where the trustee is no longer a foreign trustee, and the application must be made within 5 years of the first assessment.
- Read your trust deed first: read the whole trust deed and every earlier deed of variation, and confirm:
What you'll need
The trust's name and ABN (if any); the trustee's full name, ACN (if a company) and address; the date of the original trust deed and the names of the settlor and original trustee; the date and a description of each earlier variation; the variation clause number; the next available clause number at the end of the trust deed; the names and addresses of the appointor and anyone else whose consent is needed; and the name of an Australian charity to receive any share that cannot go to anyone else.
What you get
- The finished document in Word and PDF, completed from your answers
- A plain-English guide to completing, signing and keeping it
- DIY straight away, or a solicitor check within 1 to 3 business days
How it works
- Answer the questions, in 5 short steps.
- See your fixed price and pay.
- DIY documents download straight away. Solicitor-checked documents arrive within 1 to 3 business days.
DIY or Solicitor-checked
What 1 round of review means: the solicitor reviews your answers and the document once, and makes the changes needed based on what you have told us. Changes because your instructions change after delivery, negotiating with the other side, advice outside the document, and registering or lodging it are not included. If you need any of these, you get a written fixed-fee quote first, and nothing is charged unless you agree.
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Common questions
What is the difference between DIY and Solicitor-checked?
DIY: your document is completed from your answers and ready to download straight away. No solicitor reviews it, and it is not legal advice.
Solicitor-checked: a solicitor reviews your answers and the document, makes the changes needed in 1 round of review, and releases it to you, usually within 1 to 3 business days. The fee is fixed and does not change with the time spent.
When is my card charged?
DIY: when your document is generated, straight after checkout.
Solicitor-checked: your card is only authorised at checkout and is charged when we deliver your document. If you cancel before the solicitor starts the review, nothing is charged. If you cancel after the review has started, we keep 50% of the fee.
What if my situation is more complicated?
Some answers mean a template is not the right fit, for example an unusual structure or a dispute. When that happens we tell you, and you can request a fixed-fee quote from a solicitor instead. Quotes usually arrive within 1 business day and nothing is charged unless you accept.
Do your documents work outside NSW?
Our documents are prepared for the law of New South Wales and the Commonwealth. Some may not suit other States or Territories. If your matter is outside NSW, request a quote and we will tell you what we can do.
What do I receive?
A completed Word document (and usually a PDF copy), together with a plain-English guide to finishing, signing and, where needed, witnessing or stamping it. Your download links are on your order page, and we email you when your document is ready.
Written by NSW solicitors. Every template was prepared by a practising NSW solicitor at Corporate Legal, an incorporated legal practice. Solicitor-checked orders are reviewed by Zohra Ali, principal solicitor, or a solicitor she supervises.