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.

Lost Trust Deed Package

• Court Application
• Deed of Confirmation/Reconstruction