Presumption of regularity to cure defective amendment: an Australian perspective

In Thynne v Jevny Pty Limited [2025] NSWSC 986, the Supreme Court of New South Wales had to consider whether the presumption of regularity could be used to validate a purported amendment to a trust which did not comply with the amendment power.

The case involved an attempt to amend a family trust to add a further beneficiary, by way of a document which was not a deed, where the trust’s amendment power required any change to be made by deed. It was argued that the presumption of regularity should be applied to validate the change, in reliance on the fact that the trust had been administered by the settlor as if the new beneficiary had been validly added. Whilst it was accepted that such circumstances may found an inference that a trust had been validly varied to add a beneficiary, the court held (at [184]) that it could not infer that the variation had been made by a regular means of which the court was unaware, when the document by which the variation was supposedly achieved was in evidence.

The judgment can be found here.

With thanks to David Pollard of Wilberforce Chambers for bringing this case to our attention.