For more information about how Boss Lawyers can assist with director disputes matters, visit our Director Disputes page or call Mark Harley on 1300 267 711.
The Trusts Act 2025 (Qld) has been in force for just over a week. Most trustees have heard about it. Very few have done anything about it.
That’s a problem — because this Act doesn’t just change the rules going forward. Under s 3(2), it applies despite any contrary intention in the trust instrument. You cannot contract out of it. The duties it imposes are statutory minimums, and your existing trust deed may not reflect them.
If you are a trustee, a professional adviser to trustees, or a beneficiary of a trust, this is your action checklist.
1. Review Your Trust Deed Against the New Act — Now
The starting point is your trust deed. Pull it out and read it with fresh eyes.
The Trusts Act 2025 codifies trustee duties in Part 5 that previously existed only at common law or in equity. These include:
- Duty of care and diligence
- Duty to act in good faith and in the interests of beneficiaries
- Duty to keep and maintain trust records
- Duty to provide information to beneficiaries (ss 64–65)
These duties now have statutory force. A trust deed that purports to exclude or limit them may be ineffective to the extent it conflicts with the Act. Older deeds — particularly those drafted in the 1980s, 1990s or even 2000s — were not written with this legislative framework in mind.
The review question is simple: does your deed operate consistently with the Act, or does it create ambiguity or conflict?
2. Check Whether Your Exculpation Clauses Still Work
Exculpation clauses — provisions in trust deeds that limit or exclude trustee liability — are common in commercial and family trust instruments. Trustees and their advisers have historically relied on them as a backstop against personal liability.
The Trusts Act 2025 does not expressly prohibit exculpation clauses, but s 3(2) creates a significant risk: where the Act imposes a duty, a clause that purports to exclude liability for breach of that duty may be read down or held to be ineffective.
The position is not entirely settled, but the direction of travel is clear. Courts applying the Act will give primacy to the statutory duties. Trustees who rely on old exculpation clauses without legal advice do so at their own risk.
Action: Have existing exculpation clauses reviewed against the new statutory framework. Do not assume they provide the same protection they did under the 1973 Act.
3. If You Are a Professional Trustee, Understand Your Elevated Duty
Section 60 of the Trusts Act 2025 introduces a heightened standard of care for professional trustees. Where a trustee is engaged in a profession, business or employment that is relevant to the trust, the standard is that of a prudent person engaged in that profession — not merely a prudent person of ordinary competence.
This has direct application to:
- Solicitors and accountants acting as trustees or executors
- Financial advisers appointed as trustee of investment trusts
- Corporate trustees in superannuation, commercial property, and family trust structures
- Insolvency practitioners appointed as trustees in bankruptcy or administration
The practical consequence is that professional trustees are held to a higher standard than a lay trustee, and cannot point to a lack of specific expertise as a defence. If your profession is relevant, you are expected to bring it to bear.
Action: Professional trustees should review the scope of their duties under s 60 and consider whether their current trust administration practices meet the new standard. Professional indemnity insurance coverage should also be reviewed in light of this change.
4. Know the New Beneficiary Information Rights — and Prepare for Requests
Sections 64 and 65 of the Trusts Act 2025 give beneficiaries an express statutory right to inspect and copy trust records. This is a significant shift from the previous position, where the right to information was governed by equity and subject to trustee discretion in many circumstances.
Trustees can now expect formal requests for documents — trust deeds, financial statements, investment records, trustee resolutions — backed by statutory authority. Refusing or delaying compliance is no longer just a breach of equitable duty; it is a breach of the Act.
Action: Trustees should ensure their record-keeping is in order before requests arrive, not after. If you have been informal about documentation, that needs to change immediately. Beneficiaries who make requests under ss 64–65 and are refused have a clear pathway to court.
5. Understand the Expanded Court Powers to Remove and Disqualify Trustees
Two provisions of the new Act deserve particular attention:
Section 166 expands the court’s power to remove a trustee. The court is not limited to cases of dishonesty or fraud — it can act wherever it considers removal to be in the interests of the beneficiaries. Recent Queensland case law, including Smith v Kennedy [2025] QSC 27, has already demonstrated that courts are willing to remove trustees who prioritise capital preservation over the current welfare of beneficiaries. The new Act codifies and extends this approach.
Section 168 introduces a power for the court to disqualify a person from being appointed as trustee in the future. This is a new remedy with no direct equivalent under the 1973 Act. A trustee who is removed following a finding of serious breach of duty now faces the prospect of being disqualified from future appointments — not just removed from the current trust.
Action: Trustees in conflict with beneficiaries, or who have been informal in their administration, should take urgent legal advice. The risk profile of trustee disputes has materially increased under the new Act.
6. Brief Your Clients — If You Are a Professional Adviser
Solicitors, accountants and financial advisers who advise clients on trust structures have a duty to keep their clients informed of material legislative changes. The Trusts Act 2025 qualifies as exactly that.
Your clients who are trustees — whether of family trusts, testamentary trusts, investment trusts or commercial structures — need to know:
- Their duties have changed and are now statutory
- Their existing deeds may not reflect the new framework
- Their personal liability exposure may have increased
- Beneficiaries now have stronger information rights and easier access to court remedies
A proactive client briefing — whether by email, newsletter or a direct conversation — is both good practice and good risk management for your own professional obligations.
7. Consider Whether Your Trust Deed Needs to Be Updated
In many cases, a well-drafted modern trust deed will operate consistently with the Trusts Act 2025 without amendment. In others — particularly older deeds — the conflict between the deed and the Act may create ongoing uncertainty.
Where a deed contains provisions that are now ineffective, ambiguous in light of the Act, or simply silent on matters now governed by statute, a deed variation or resettlement may be appropriate. This is a decision that requires legal advice specific to the trust structure, the nature of the assets, and the relationship between the trustee and beneficiaries.
There is no universal answer. But doing nothing and hoping the old deed still works is not a strategy.
How Boss Lawyers Can Help
Boss Lawyers has a focus on trust disputes, trustee removal applications, and the administration of complex trust structures. Mark Harley, Principal Solicitor, has acted in trust disputes before the Queensland Supreme Court and regularly advises trustees, beneficiaries, and professional advisers on their rights and obligations.
With the Trusts Act 2025 now in force, there is a short window to get ahead of the issues before they become disputes.
If you are a trustee who needs your deed reviewed, a beneficiary whose requests have been ignored, or a professional adviser who wants to understand the new Act’s implications for your clients — call us.
Mark Harley
Principal Solicitor, Boss Lawyers
1300 267 711 | bosslawyers.com.au
Level 27, Santos Place, 32 Turbot Street, Brisbane QLD 4000
This is general information only and is not legal advice. You should obtain professional advice specific to your circumstances.
