Question
Is an unwitnessed Trust Deed still valid?
Answer
This will depend on the trustee signing.
Individual trustees
Although the case law is somewhat unclear, the conservative position is that an unwitnessed Trust Deed is invalid because it has not been duly executed. The case law suggests that a deed needs to be witnessed and signed contemporaneously for it to be valid.
There are several potential options to address this type of situation depending on the exact factual matrix and level of protection the client is wanting to achieve. As always, our Legal Partners can provide an upfront scope of work and guaranteed fixed price to assist, upon request.
Corporate Trustee
If the Trustee is a Company the deed can be executed in line with the Corporations Act, in which case a witness is not required.
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