Question
Why and when is a witness required to sign a trust deed? Why is a witness's signature required for some Trustees but not for others?
Answer
Individual Trustee
When establishing a deed, if the Trustee is an individual then it is a legal requirement that a witness attests to the signing of the deed by that individual Trustee. It serves as evidence of the actual execution of the deed, by the said individual, as it appears.
As best practice, the witness should not only be unrelated to the transaction (i.e. not a party to the trust) but also unrelated to the signatory (e.g. not a spouse).
Note: The different States have varying requirements in terms of witnessing. You should refer to the relevant State laws and engage with a solicitor if you are unsure about the procedures involved in executing your Deed.
Company 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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