Tuesday, July 25, 2023

I want you back!** Finding lost trust deeds

View Legal blog - I want you back!** Finding lost trust deeds by Matthew Burgess

Recent posts have considered various issues in relation to lost trust deeds.

Due to the difficulties that arise when a trust deed is lost, the preferred solution is to locate the original deed.

The types of searches most likely to be successful in relation to locating a lost trust instrument include:
  1. Former and or present banks, as trust deeds are often required to be produced to open accounts or enter into finance arrangements;
  2. Past and present lawyers, including the lawyer who prepared the deed as they will often keep an original or copy of the trust deed for their own records;
  3. Accountants, past and present for similar reasons as lawyers, they may have access to at least a copy of an original trust deed;
  4. In some states, if the trust has ever owned real property it can be useful to contact the Land Titles Office, in that jurisdiction. It may be that the department will have retained a full copy of the trust instrument on the initial acquisition of the property;
  5. This particular alternative is however not available in all jurisdictions. For example, New South Wales prohibits the disclosure of the existence of a trust relationship on title, so there will never be trust instruments with that department. The approach is also dependent on the exact practices from time to time of the relevant department;
  6. Where none of the above pathways prove successful, there can be benefits in contacting the original settlor of the trust, particularly if they were not directly associated with the law firm that established the trust. Alternatively, other parties that have had any dealings with the trust from time to time should also be contacted. For example:
    1. a beneficiary that is known to have historically received a distribution (or close relatives of deceased beneficiaries who are known to have received a distribution);
    2. former trustees; and
    3. parties who have held a position of authority with the trust, for example, appointors, principals, guardians or nominators.
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** For the trainspotters, the title of today's post is riffed from the Hoodoo Gurus song 'I want you back'.

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