I am organising for a professional trustee to retire as trustee of a life interest trust for the Settlor’s children that was set up in 1997.
I’ve noticed that one of the Settlor’s daughters is named incorrectly in the original trust deed. She’s referred to by completely the wrong first name (her middle names and surname are correct). She has received substantial capital distributions since the trust was set up.
The Settlor, all of the beneficiaries, the current trustees and the new trustee are all in agreement that this is a drafting error.
I would appreciate any input from the forum as to how best to deal with this. I’m hoping that we can correct the mistake within the deed of appointment and retirement of trustees. The settlor and beneficiaries are a party to that deed already, as there was a breach of trust and we wanted everyone involved to ratify it.
I would be inclined for the settlor to make a statutory declaration, confirming the correct name of the beneficiary.
I would see this as a stand-alone document, as I would any deed of ratification dealing with the breach of trust.
Whilst, if there is another, future, change of trustees, the then incoming trustees will want to be aware of the previous breach of trust, by including it within the DART (deed of appointment and retirement of trustees) now may result in deeds dealing with such future changes becoming increasing over-sized and unmanageable (leading to greater potential for drafting errors).
At an early stage of my career, I was told to “keep it simple”, which included the concept of using separate documents for distinct issues.
Obvious mistakes can be cured by construction, without the need for rectification. You should therefore be able to deal with it in the deed by reciting the error and providing for agreement as to the correct name.