Keeping the original copy of a Trust Deed is critical to the ongoing maintenance of any trust. Original signed and stamped deeds provide certainty of its provisions and arm trustees with the authority to properly administer the trust.

But, if a trustee or a third party loses the original trust deed, several issues can arise.

Why is it important?

Unlike other areas of the law, there is no statutory body which maintains records of original trust deeds. If the original deed is lost and the trustee wants to deal with banks or distribute trust property amongst beneficiaries, the absence of the trust deed can cause significant issues. Without a copy of the original trust deed, the trustee(s) may have issues, such as:

• Buying and/or selling property.
• Getting a loan or opening a new bank account.
• Dealing with banks and other financial institutions.

Additionally, if the original copy of the trust is lost, the trustee(s) could potentially be in breach of their duties as trustee(s), namely:

• to keep the documents of the trust safely;
• exercise their duties, at least to the standard of that of an ordinary businessperson; and
• ascertain the terms of the trust.

Is all hope lost if I lose the original trust deed?

Certainly not! While the overriding preference is to locate the original document, if that is not possible, there are several potential options available to navigate this situation.

Option 1:             Locate a photocopy of the original signed and sealed deed.

Option 2:             Talk to your solicitor who can help you collate extraneous evidence of the existence of a trust and its terms.

When proving the existence of a trust from secondary sources, the law requires “clear and convincing proof” of the three certainties:

• certainty of intention to create the trust;
• certainty of the beneficiaries; and
• certainty of the object and its terms.

Your solicitor can assist in clarifying these requirements. Trustees may overcome issues related to lost trust deeds by engaging their solicitor as early as possible.

If you have lost your trust deed or need to determine the provisions of your trust deed, contact & Legal on (02) 9328 2944 or via Email: [email protected] and we will assign one of highly experienced senior lawyers to assist you.