Lost Trust Deed

What is a reasonable course of action for trustees to take if the original trust deed has been lost? The trustees hold a copy of the signed deed and have no reason to believe that it is not a true copy. The trust has been operated under the terms of the copy deed for many years and it has only recently become apparent that the location of the original deed is unknown.

Stephanie Parker
Haysmacintyre LLP

Nothing? It may take some explaining when opening accounts (because you can’t provide a certified copy) but you can’t produce another original.

Andrew Goodman
Osborne Clarke LLP

17 Sept 2019.

Surely an answer is for the trustees to each sign and notarise an Affidavit exhibiting the copy Trust deed, confirming it is a true copy of the original, and setting out when / where the original has been lost.

Peter Double / Probate Resealing Services

Perhaps a statutory declaration by the trustees, exhibiting the copy deed and setting out the circumstances, stating searches undertaken, how long the trust has operated under the copy and (if it is the case) that no-one has challenged the copy. Not definitive, but unless the settlor is around to execute a confirmatory deed, probably the best one can do.

Anthony Kalp
Berry & Lamberts Solicitors

In a similar situation I suggested that one of the original signatories to the document should sign a short statutory declaration explaining the loss and confirming that the copy was a true copy of the original.

Paul Davies
Clarke Willmott LLP

How about a confirmatory deed by the trustees?
This could recite (a) what is known about the fate of the original, (b) what is known of the origin and authenticity of the copy, (c ) that the trustees believe this to be a true and complete copy of the original, and (d) that they have since X date conducted themselves, and will continue to conduct themselves, on that basis.

It’s a bit of a ‘pulling yourself up by your own bootstraps’ exercise, but might just provide enough comfort for people the trustees need to deal with. Beyond that, I believe the Court has power to make a declaration as to the terms of a trust, but I have no experience of this.

Michael Cutler
Colemans Solicitors LLP

In this situation, I suggest the trustees execute a statutory declaration confirming the circumstances – that the original trust deed had been lost and that they believe the document appended to the declaration is a true copy of the original. The copy they hold should be attached and the declaration and attachment treated as the original trust instrument (including in terms of safe keeping).

Paul Saunders

The Trustees should make a confirmatory deed, incorporating a copy of the original, and proceed under that.

Julian Cohen

Simons Rodkin

We’ve encountered a couple of circumstances where the trust deed was lost and we arranged for complementary statutory declarations, which were all adapted to the particular circumstances.

In one situation, the signatories to the trust deed were all still alive and able to confirm that the signatures on the deed were their own, with a supplementary statutory declaration provided by the firm that had lost the deed (and that had retained a copy that they were able to certify as being a true copy of the original).

In another situation, we located an accountant who had taken a photocopy of the original and he was able to declare that the photocopy was a true copy of the original, with a supplementary statutory declaration covering unsuccessful searches made to locate the missing original deed.

If you can’t locate anyone who had some connection with the original deed, that would be significantly more difficult, and would pose risk for the trustees as they could not be certain that they have been acting in accordance with the terms of of the trust.

Lee Harris
Foley Hughes, New Zealand