A lost trust deed can create significant difficulties for clients and their advisors.
These days, banks and other third parties often require certified copies of original trust deeds in order to perform basic functions such as opening bank accounts or providing loans. Therefore, even if the original trust deed has been lost and there are physical and/or electronic copies of the signed original available, this may not be enough.
What can you do if the original trust deed is lost but there are copies of the signed original?
The safest way to proceed in these circumstances is to approach the court for advice under the various State/Territory trustee legislation. For example, under section 63 of the Trustee Act 1925 (NSW), a trustee may apply to the court for an opinion, advice or direction on any question respecting the management or administration of the trust property, or respecting the interpretation of the trust instrument.
In Sutton v NRS(J) Pty Ltd  NSWSC 826 (Sutton), an original trust deed had been lost and the relevant parties operating on the basis of a signed copy of the original trust deed. Difficulties were encountered in seeking to open new bank accounts and an existing account had been frozen pending the production of the original trust deed.
Searches had been made to locate the original trust deed, including contacting their solicitor at the time and a photocopy of the trust deed was found (which was identical to the copy held by the family).
Whilst the court declined the declaratory relief sought for technical reasons in the particular circumstances, it went on to state that the court can give advice under section 63 of the Trustee Act 1925 (NSW) as to the administration of the trust and ordered that the trustees of the trust were justified in administering the trust on the basis that the copy of the signed trust deed is a true copy of the original trust deed.
What can you do if the original trust deed is lost and there are no copies of the signed original?
Despite living in a digital age, it is surprisingly common how often not only original trust deeds are lost, but also any copies of the signed original trust deed.
In these circumstances, whilst approaching a court remains the safest way forward, other things being equal it may be increasingly difficult to satisfy the relevant evidential burden. However, evidence as to the making of enquiries with banks, Revenue authorities, current and former trustees, directors of corporate trustees, accountants, financial advisers and lawyers (including the lawyers that originally prepared the trust deed) will be relevant, as well as any evidence as to key elements of the trust deed such as the date it was established, the settlor, any appointor (also known as a principal or guardian) and the beneficiaries (or class of potential beneficiaries) of the trust.
Are there any other alternatives to going to court?
It is possible to enter into a Deed of Restatement (also known as a Deed of Acknowledgment or Deed of Confirmation), particularly where you have copies of the signed original trust deed, however, this carries with it greater risk of potentially triggering tax and/or duty issues by triggering a resettlement. The risk increases in circumstances where a trustee has no documentation at all and is not in a position to confirm that the Deed of Restatement is the same or substantially to the terms of the original trust deed.
Certainly, if there is no documentation or evidence as to the terms of the original trust deed, in our opinion, it is not possible to simply enter into a Deed of Restatement to adopt a completely different trust deed from a different provider without giving rise to a very significant risk of resettlement in the circumstances.
In relation to lost trust deeds, prevention is better than cure and clients should be made aware of the critical need to:
- safely retain signed original(s); and
- make multiple copies (whether physical and/or digital).
Of course, the practical reality is some trust deeds will be lost or new clients onboarded having already lost their trust deed and in these circumstances, both clients and practitioners need to very carefully identify what information and evidence they do have as to the terms of the original trust deed and proceed accordingly.