A trust does not cease to exist even though you have lost your trust deed. The trust relationship will continue as long as there is a trustee holding trust property on behalf of the beneficiaries. The issue that arises is the ability of the trustee to administer the trust may become difficult where the exact terms have been recorded in a trust deed that has been lost.
Although it might seem like the solution would be to replace the trust deed, generally this is not a good option as it may result in a resettlement of the trust. A resettlement of the trust may lead to CGT and stamp duty implications.
The options you should consider if you have lost your trust deed include:
- Attempt to find a copy of the original trust deed: Speak to all current and past trustees as well as beneficiaries that may have a copy of the deed. If any of these individuals are deceased, then you should contact the person responsible for their estate as they may have acquired their papers. If this is unsuccessful, then you should contact any parties that may have come into contact with the trust (e.g. accounting & law firms, banks etc.).
- Find an equivalent version of the deed: Contact the original law firm that drafted the original deed. Even if they cannot provide you with a copy of the original deed, they may be able to provide you with a standard deed from the same time frame. However, as the standard deed is not the exact deed, it is unlikely to be accepted as the trust’s deed for other purposes. It may be necessary for the trustee to execute statutory declaration confirming that the copy of the deed represents and replicates the terms of the lost deed or apply to the court.
- Apply to the court to reconstruct the deed: The trustee may consider applying to the Supreme Court of NSW to have the deed reconstructed whether or not a copy of the deed has been found. This option is very costly and will require giving evidence to the court about the contents of the deed. If a copy of the trust deed has been located or an equivalent precedent (along with evidence of the instructions for setting up the trust initially), the court may be more inclined to order the documents produced should be adopted as the terms of the trust.
- Administer the trust in accordance with State legislation: Where applying to the Supreme Court has been unsuccessful or not worthwhile, some trusts may resign from being administered in accordance with the Trustee Act. This will allow the trust to have basic powers of administration with minimal obligations. However, this option would not be suitable for more complex trusts, such as those carrying on a business as they require a trust deed to do so.
If you have lost your trust deed and require any further information or assistance, contact our team of lawyers at The Quinn Group on (02) 9223 9166 or submit an online enquiry form today.
