I have a new client with a problem, they have lost their Trust Deed. The Deed was established in the early 80's and it is a trading trust used for their principal business. It owns no property other than business assets (goodwill/debtors etc). but that value is approx $1,5M. Now they have searched high and low, the solicitor who wrote it is long gone, old accountants don't have copies so those avenues seem closed. They are seeking refinance at the moment and a bank is asking for the deed. I am aware of possible Re-settlement issues if we rewrite the old deed so am wary of going down that path. Has anyone ever approached the ATO and/or Office of State Revenue (NSW)on this issue before?
It's a common problem, with no easy answer. It is a reasonable assumption that the original trust deed contained a clause, allowing the trustee to amend the trust deed. So, a deed of variation can be prepared, revoking all the provisions of the old trust deed, and replacing them with a completely new trust deed. This new trust deed is used from then on as the trust deed for the trust. the new trust deed should be as close as possible to the old, to avoid it being a resettlement. but, if you don't have the old one, you will have to rely on guess work. if the old trust deed ever shows up, and the trustee did not have power to amend, then your new deed is void, and no harm has been done. It is not a perfect solution, but there is not much else you can do.
I think you formally need to declare that the trustees have made all reasonable efforts to trace the original documents. Then you need to prepare a variation and also a deed of adoption. Better get some specialist advice. Cheers, Rob
