Complex Trust and Estate Asset Disputes
Where the assets sit in a family trust, a family company, or a farming succession structure, the fight is rarely just about one document. Aptum runs the multi-dimensional matters where trust law, family law, corporate law and tax law all shape the outcome.
What is a complex trust or estate asset dispute?
The core estate services (family provision, will validity, executor and trustee, beneficiary disputes) cover the standard architecture of estate litigation. But a growing share of Australian estate matters do not sit neatly inside that architecture.
The substantial wealth in Australian families increasingly lives in family discretionary trusts, testamentary trusts, family companies, holding companies, partnerships, farming syndicates, and self-managed superannuation funds. When that wealth comes into dispute, the fight is technical, multi-jurisdictional, and often involves overlapping legal frameworks:
- Trust law and equity
- Family law (property settlements involving trust interests)
- Corporations law and directors' duties
- Tax law (CGT, Division 7A, resettlement risk)
- Insolvency law (where the trustee, the trust, or a beneficiary is insolvent)
- Land law and property (for farming and rural succession matters)
- Superannuation law
Complex trust and estate asset disputes are the matters where more than one of these frameworks is in play at the same time. Aptum's practice is built to run these matters, not to hand them off in pieces to specialists at every step.
"The whole team from the top of Aptum Legal down to the support team have all been very professional and always gone above and beyond for me and my family. I will highly recommend them for future work with people in my network needing legal professionals."
Types of complex matters Aptum runs
Family business succession disputes
Where a family business has been operated across generations and the succession has been imperfectly documented (or contested), the resolution requires reading the actual conduct of the parties against the corporate structure, the trust structure, and any documented succession plan. Adult children who worked in the business for years or decades on the expectation of succession, siblings taking different views of the succession, and second-generation spouses all commonly feature.
Farming succession disputes
The classic Australian farming succession pattern: a rural property held through a discretionary trust, developed over decades by a founder with contributions from one or more children, and either not clearly willed or willed in ways that do not reflect the working arrangement. These matters combine equitable estoppel, constructive trust, family provision, and (where the property has grown to substantial value) tax considerations.
Family trust asset disputes with family law crossover
Where a beneficiary of a family trust is going through a family law property settlement, the other spouse may seek to reach the trust assets. The High Court's decision in Kennon v Spry (2008) opened the door to trust assets being treated as property of the marriage in appropriate cases. The dispute becomes a joint trust-and-family-law matter.
Corporate trustee disputes with directors' duties overlay
Where a family discretionary trust has a corporate trustee (the standard structure), disputes over trustee conduct are usually also disputes over the directors of the corporate trustee. Both frameworks are in play, and remedies are available under both. Cross-refers to Corporations Law and Directors Duty Disputes.
Testamentary trust disputes over substantial assets
Testamentary trusts (created by a will) are increasingly used for tax and asset protection reasons. When the substantial assets of an estate are held through a testamentary trust, disputes over the trust's operation, variation, or (occasionally) its validity as a testamentary disposition are common. See the Aptum blog post Can a Testamentary Trust Be Challenged or Varied After Death?
Constructive trust and equitable estoppel claims
Where a person has acted to their detriment on the basis of a promise or common assumption about the succession of an asset (typical example: an adult child who worked on the family farm for decades on the promise it would be theirs), a court can order the asset be held on constructive trust for that person, or grant equitable relief based on estoppel. These are powerful remedies but require detailed evidence of the conduct.
Sham trust and alter ego claims
Where a family trust structure is challenged on the basis that it does not reflect the true intention of the parties (a sham) or that the trust is being used as the alter ego of the person controlling it, the substantive assets can be brought back into the personal estate for the purposes of estate or family law claims.
Rectification and variation of trust deeds
Where a trust deed contains an error (rectification) or where circumstances have changed such that the trust as drafted no longer works (variation), applications can be brought under the state Trustee Act or the court's inherent jurisdiction.
Multi-jurisdictional trust and estate matters
Where the deceased, the trust, or the assets touch more than one Australian state, or extend to another country, the conflict-of-laws analysis becomes critical. Aptum coordinates the domestic aspects with overseas advisers where required.
Superannuation and estate crossover
Where a self-managed superannuation fund forms a significant part of the deceased's wealth, the fund's binding death benefit nomination, trustee decisions, and interaction with the personal estate all become live issues. See Superannuation Death Benefit Disputes.
Insolvency crossover in trust and estate matters
Where the trust, the trustee, a beneficiary, or the deceased's personal estate is insolvent, the matter becomes a joint trust-and-insolvency dispute. Rights of creditors, priority of claims, and voidable transaction principles all interact with the trust or estate framework.
How Aptum runs a complex trust or estate matter
Value conversation
A no-cost first meeting where you set out the family structure, the assets, the entities involved, and the trigger for the dispute. We tell you which frameworks are in play, what the strategic pathway looks like, and where the pressure points are. On matters this size, the first meeting is usually the most important meeting.
Pathways assessment
If the matter is realistic and you want to move forward, we scope it properly, identify the trust deeds, corporate records, tax positions and family law history that will need to be assembled, and give you a costed engagement plan with clear phases.
Execution
We run the matter. On these matters the execution phase is typically longer than in other estate work, running across trust litigation, corporate proceedings, tax positions, and (where required) coordinated family law strategy. We report throughout and manage the fight to the outcome the client actually needs.
Family business and farming succession
The pattern that produces most Australian complex trust and estate asset disputes is the family business or farming succession where the wealth is substantial, the succession was informally understood but not carefully documented, and the family relationships that made the informal arrangement work have broken down.
Typical fact pattern.
- A founder built the business or the farm across decades
- The structure is a family discretionary trust, sometimes with a corporate trustee, holding the operating assets
- One or more adult children worked in the business through their prime working years on the basis (spoken or implicit) that they would eventually inherit or take over
- The founder's will (or the intent conveyed in it) does not reflect the working arrangement
- A separation, a death, or a family disagreement triggers the fight
- The other beneficiaries, or the surviving spouse of a beneficiary, seek to take a share that does not reflect the working contribution
- The technical trust structure protects some assets from some claims but not from others
How Aptum approaches these matters. The starting point is a proper reading of what actually happened, documented and undocumented, and a mapping of that against the legal frameworks that can carry the claim (constructive trust, equitable estoppel, family provision, corporate structure claims). Once the frameworks are mapped, the priority order and the sequence of claims are worked out. The technical trust and corporate structures usually favour the party who understands them best. We aim to make sure that is our client.
The Kennon v Spry crossover
The High Court's 2008 decision in Kennon v Spry significantly reshaped the law on family trusts and family law property settlements. Its practical effect: assets held in a family discretionary trust can be treated as property of the marriage for the purposes of a family law property settlement in appropriate circumstances. Where a spouse controls the trust (as trustee or as effective controller), and where the discretion is capable of being exercised in the spouse's favour, the court can take the trust assets into account.
This is critical in complex estate disputes because the pattern is common: a founder holds farming or business assets in a discretionary trust; one of the founder's children (a beneficiary of the trust) separates from a spouse; the separating spouse seeks a share of the trust assets under Kennon v Spry principles; the founder's other children object that the trust assets should not be treated as property of the separating child's marriage.
Aptum has run this pattern, most prominently in the AUD $15M farming trust matter set out in the case study below.
Constructive trust and equitable estoppel
Australian equity has developed two powerful doctrines for the case where someone has acted to their detriment on the basis of a promise or expectation about a future succession.
Constructive trust. Where the court finds it would be unconscionable for the legal owner of an asset to deny another person's beneficial interest in it, the court can declare the asset held on constructive trust for that other person. The classic estate context is Giumelli v Giumelli (1999 HCA), where the High Court ordered constructive trust relief in favour of a son who had worked the family orchard on the strength of family promises.
Equitable estoppel. Where a person has been induced to act (or to refrain from acting) by the assumption of a state of affairs, and it would be unconscionable to allow the other party to depart from that assumption, the court can grant relief to prevent the departure. Relief can include monetary compensation, transfer of specific property, or a range of intermediate outcomes.
Practical use in complex estate matters. These doctrines are the standard framework for adult-child-worked-the-business-for-decades claims. They require careful evidence: what was said, what was done, what was reasonably understood, and what detriment was suffered. Where the evidence is strong, the remedies can be substantial and can override the terms of a will or trust deed.
An accomplished farmer has his property protected in a family trusts dispute
Problem. Our client was a farmer who had spent approximately 60 years prior to the dispute establishing and developing numerous farms that had grown to a combined value of more than AUD $15M.
The properties for these farms were held in a property trust, of which our client's son and his son's wife were named beneficiaries of the trust, as well as directors of the corporate trustee. Our client was named as a general beneficiary and a director of the corporate trustee.
When the farmer's son and the son's wife decided to separate, they became engaged in a family law dispute relating to the division of the trust property. The wife sought a 50% distribution from the trust on the basis that the husband and wife were entitled to 100% of the trust between them, ignoring our client's interest and significant contribution to the trust.
Aptum's role. Before Aptum was engaged, our client was effectively being ignored by the other parties to the divorce proceedings. Using specialist corporate trust experience, Aptum's role became to intervene in the proceedings on our client's behalf so he could protect his interest in the trust.
Outcome. A negotiated outcome to this matter was achieved prior to trial that properly recognised and protected our client's interest in the property.
Why this matter is a good illustration of the practice. The dispute did not fit any single legal framework. It sat across trust law (the client's interest as a beneficiary and as a director of the corporate trustee), family law (the property settlement between the son and daughter-in-law), corporations law (the operation of the corporate trustee), and (as most matters of this size do) tax considerations. The outcome required intervention at the point where those frameworks intersected, and it required understanding of what was at stake beyond the immediate divorce proceedings.
How the matter actually moves
Complex trust and estate asset matters do not run in a linear sequence. They typically run on several parallel tracks that converge at the resolution.
Track 1, structure mapping
Understanding the corporate structure, the trust deed, the shareholding, any partnership arrangements, the SMSF (if relevant), and the deceased's or founder's holdings across all of it. This is the foundation and it often takes several weeks.
Track 2, evidence assembly
Documented and undocumented facts about the working arrangement, contributions, promises, family understandings, and the history of the relevant relationships. Where equitable estoppel or constructive trust claims are in play, this evidence is decisive.
Track 3, tax position
CGT positions of the trust, the beneficiaries, and any proposed restructures. Division 7A implications of shareholder loans and unpaid trust distributions. Resettlement risk of any variation to the trust. The tax position often shapes what commercial outcomes are actually available. Cross-refers to Tax Litigation where required.
Track 4, family law coordination
Where a related family law matter is on foot or imminent, coordinating the trust position with the family law position is critical. Family court orders can bind the trust; trust decisions can affect family court outcomes.
Track 5, negotiation and proceedings
As the tracks above mature, the negotiation and (if required) court proceedings are worked. Court proceedings can be in multiple jurisdictions and courts (state Supreme Court for trust and estate matters, Federal Circuit and Family Court for family law matters, Federal Court for some tax matters).
What's changing in Australian complex trust and estate law
Intergenerational wealth transfer volume is driving the practice
Trillions of dollars are moving from Baby Boomers to their heirs, much of it structured through family trusts. The volume of contested trust and estate matters is rising and is expected to continue rising for years.
Kennon v Spry continues to be tested
Family courts continue to work through the practical operation of Kennon v Spry, with attention to what level of "control" over a trust is enough to bring trust assets into a property settlement, and how third-party beneficiaries (typically the trust founder or other family members) can protect their interests.
Sham trust doctrine is being tested more
Recent decisions have looked at when a family trust structure that has been operated informally can be set aside as a sham, particularly where the trustee has treated trust assets as if they were personal assets.
Testamentary trust variation is being tested more
As the first generation of testamentary trusts (widely adopted in the 2000s) matures, applications for variation of the trust terms (to reflect changed circumstances, tax positions, or family relationships) are becoming a regular feature.
Farming succession cases with substantial equitable estoppel components continue to be prominent
Following Giumelli and later authorities, adult children with strong working-history evidence continue to succeed against wills or trust deeds that do not reflect the succession arrangement.
Frequently asked questions
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Can family trust assets be reached in a family law property settlement?
Sometimes. The 2008 High Court decision in Kennon v Spry allows the Family Court to treat assets of a family discretionary trust as property of the marriage where the beneficiary spouse has effective control of the trust. Whether trust assets are reachable depends on the specific facts (level of control, terms of the deed, history of distributions).
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What is Kennon v Spry?
The leading High Court decision on family trusts in the family law context. It established that in appropriate circumstances, assets of a family discretionary trust can be treated as property of the marriage for property settlement purposes. Its practical operation is still being worked through in later cases.
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What is a constructive trust in family succession?
A remedy where the court finds it would be unconscionable for the legal owner of an asset to deny another person's beneficial interest, and orders the asset held on trust for that person. Applied in family succession contexts (adult child worked the family farm for decades on the promise of inheritance) to override the terms of a will or trust deed.
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What is equitable estoppel in a farming succession dispute?
A doctrine that provides relief where a person has acted to their detriment on the basis of a promise or expectation, and it would be unconscionable to allow the other party to depart from that assumption. Relief can include transfer of specific property, monetary compensation, or intermediate outcomes. Common framework for adult-child-worked-the-family-farm claims.
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Can a family trust be set aside as a "sham"?
Yes, but the threshold is high. Mere loose administration is not enough. A sham trust requires that the trust does not reflect the true intention of the parties, and that both the settlor and the trustee intended the trust to be a false facade. Where established, the trust is disregarded and assets are treated as held by the person who controls them.
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Can a testamentary trust be varied after death?
Yes, in appropriate cases. Applications can be brought under the state Trustee Act or the court's inherent jurisdiction to vary the terms of a testamentary trust to reflect changed circumstances, tax positions, or family relationships. Beneficiary consent (or court substitution for consent where beneficiaries are unable to consent) is often required.
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How does insolvency interact with a family trust dispute?
Where a trustee, a beneficiary, or the deceased's personal estate is insolvent, the dispute becomes a joint trust-and-insolvency matter. Creditor rights, priority of claims, and voidable transaction principles all interact with the trust framework. Distributions from a discretionary trust to a beneficiary who is (or was) insolvent can be attacked by that beneficiary's trustee in bankruptcy.
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Do family trust disputes have tax implications?
Almost always. CGT positions of the trust and beneficiaries, Division 7A implications of shareholder loans and unpaid trust distributions, resettlement risk on variations, and stamp duty on transfers can all shape what commercial outcomes are actually available. Getting the tax analysis right at the beginning is often the difference between a workable outcome and an unworkable one.
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How long do complex trust and estate matters typically take?
Longer than routine estate matters. The multi-dimensional nature (trust, family, corporate, tax, and sometimes family law and insolvency) means these matters typically run 12 to 36 months from first engagement to substantive resolution. Interim outcomes (injunctions, freezing orders, urgent protective orders) can be obtained much faster where the facts warrant it.
Thinking on complex trust and estate asset disputes
Aptum publishes regularly on the questions that decide complex trust and estate asset disputes matters.
The Aptum complex trust and estate assets team
Michael Buscema
Michael Buscema spent 11 years with the ATO and Commonwealth Treasury, including as acting Assistant Commissioner, before joining Aptum as a practice lead. He acts for private wealthy groups and families in complex, high-value disputes, and has negotiated settlement and security arrangements totalling over $1 billion.
Estate disputes over substantial asset pools are rarely just about the will — trust structures, superannuation and tax consequences run through them, and Michael brings senior experience on exactly those fronts.
Nigel Evans
Nigel Evans, Aptum's Managing Director and Co-Founder, leads Aptum's estates practice. Before founding Aptum, Nigel spent 11 years at the commercial Victorian Bar, where much of his practice touched on trust structures, fiduciary breach and equitable remedies. He is listed in Best Lawyers in Australia for Commercial Litigation (2026) and recognised by Doyle's Guide as a Leading Commercial Litigation and Dispute Resolution Lawyer.
Offices
Aptum services estates clients across Australia from three offices.
Get clarity on your complex trust or estate matter
The matters on this page are the ones where getting the strategy right at the beginning is worth many multiples of the effort spent later trying to correct course. If you are looking at a family trust, family business, or farming succession dispute involving substantial assets, book the value conversation. On matters at this scale, the first meeting is where the strategy is set.
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