Lost Trust Deed (Replacement Trust Deed)

Application to court for lost or misplaced trust deed. Deed of Reconstruction.

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Lost Trust Deed (Replacement Trust Deed)

Have you lost or misplaced your trust deed? There are certain steps required in order to recreate a trust deed. A trust is an obligation imposed on a person or other entity to hold assets for the benefit of beneficiaries. The Trustee of the Trust has an obligation to administer the trust in accordance with the terms of the deed.

What happens if I cannot find an original trust deed?

If an original trust deed cannot be located, the Trustee has limited options in relation to recreating an original. The Trustee’s primary responsibility is to adhere strictly to the terms outlined in the trust. Given its importance, the trust cannot function properly without clear and convincing evidence of the trust deed’s existence. Without a trust deed, the Trustee may not be able to:

  • Prepare annual trust distributions - Accountants advising clients must be careful in preparing returns for clients who do not have original documents. Ultimately, accountants may have a duty of care to ensure the Trustee administers in accordance with the strict terms of the trust.
  • Ongoing bank obligations - Under the new Anti Money Laundering Laws, specifically the Know Your Customer (KYC) rules, the bank must identify its customers regularly. Given this, the bank may request an original copy of your trust deed at any time. Failure to provide the deed may result in the bank freezing all accounts.
  • Selling property - when dealing with the land titles registry there is a requirement that original documents are sighted

There is a common misconception that the Trustee executing a replacement deed or a deed of confirmation as a substitute for the lost document is the safest option. This approach has significant risk and is likely that it may cause resettlement. Resettlement may trigger serious tax and stamp duty implications. The Trustee must receive the appropriate financial and legal advice before taking any steps towards recreating.

What do you need to consider?

  • Continuing without a trust deed - The Trustee may, subject to legal advice elect to continue to attempt to administer the trust in accordance with the relevant trust law. Ie Trustee Act 1958(VIC), Trusts Act 1924 (NSW), Trusts Act 1973 (Qld).
  • Preparation of Deed of Confirmation - In some situations, preparing a deed of confirmation may be an option. This document essentially attempts to ratify as close as practical to the terms similar to the original deed. Before preparing a deed of confirmation, you may need to consider who initially drafted the deed, the establishment date, the settlor, the settled sum, and the initial beneficiaries. It is important to note, there is no guarantees third parties such as banks and the ATO will accept this document.
  • Trust Statutorily Lost or Destroyed - To convince a court that a trust deed is 'lost,' the parties involved must have conducted thorough searches. A trust deed isn't considered lost if it is simply misplaced; it must be lost or destroyed beyond any possibility of recovery. The Trustee may need to approach previous accountants, banks, lawyers or document providers.
  • Court Application -It is commonly perceived the safest option to replace a lost trust deed is to seek a court declaration in relation to the terms and validity of the trust.
  • Deed of Confirmation/Reconstruction
  • Court Application
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Lost Trust Deed Package

  • Court Application
  • Deed of Confirmation/Reconstruction
How much does it cost to recreate a lost trust deed?
Every matter is different and has its own complexities. Contact our team for more information relating to pricing.
What happens if it's found that there is no deed?
If a trust fails because of uncertainty and is unable to provide sufficient secondary evidence(Schedule, financial records, tax returns, photocopies), it may create a resulting trust and invalidate past distributions. In the case of Mantovani v Vanta Pty Ltd the court held where an express trust fails... or is ineffectually declared, or becomes incapable of taking effect, an automatic resulting trust arises by operation of law, such that the trustee holds the trust property on trust for the settlor or the settlor's estate. ‘In such circumstances, the resulting trust arises by operation of law, as an 'automatic re-direction of the failed express trust to return any remaining trust property to the provider, in recognition of the fact that the provider of the property did not intend to benefit the recipient.’
How long does it take to complete court application?
Unfortunately, we cannot provide timing for a court application.
What is classified as secondary evidence?
Secondary evidence may be used to attempt to prove the existence of the trust and the contents of the deed. The evidence must provide ‘clear and convincing proof’ of the terms of the original document.
Should I seek legal advice?
The summary displayed on this page is for information purposes only. Summary for share buy back should be considered general in nature, and should not be a substitute for professional legal advice. You must always seek your own independent legal, financial and accounting advice about your unique situation.
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