It is a fundamental trustee duty that trustees know the terms of the trust. However, what is the position of the trust deed is lost? Or if there is a copy, but the original cannon be located. How does the trustee complete CDD obligations? This was considered in Sutton v NRS(J) Pty Ltd when the trust deed was a photocopy but the original could not be located, but was required for KYC (know your client) obligations. In that case tbe court ordered that the photocopy was a true copy pursuant to s 63 of the Trustee Act 1925 (NSW), which empowers the court to give advice. This was considered an appropriate alternative to the declaratory relief sought, which would have required service on all potentially interested parties.

Also, see In Porlock Pty Ltd, where the plaintiff trustee also applied to the Court for directions under s 63 of the Trustee Act 1925 seeking judicial advice because the trust deed could not be located. In that case the Supreme Court of New South Wales found that it has no power to actually recreate a trust deed, explaining:

“We are not in the same situation as one is when there is a lost will. What the court is doing is advising the trustee as to whether it would be justified in dealing with the trust property in the way in which it proposes. It is clear that the trustee recognises that it does not hold the trust property beneficially.”

In Re Porlock Pty Ltd the court was satisfed that the secondary evidence of the trust’s accountant “was the “best evidence” as to what the terms of the deed were, and found that the trustees would be justified in acting upon the letter with the observation that, if at some time in the future the deed did happen to turn up and was found to contain provisions inconsistent with the accountant’s letter, the trustees would nevertheless have the protection that the management and disposition of the trust fund was in accordance with the Court’s advice.”

In D R McKendry Nominees Pty Ltd the court made the declaration sought Digby J concluding at [16] that:

“…

a more than sufficient basis to conclude that the McKendry Family Trust executed in 1980 was in the form of [the pro forma draft] to Mr O’Connor’s affidavit of 14 August 2015.

Further, I consider that there is significant supporting evidence for the existence and due execution of the Trust Deed. That further evidence, in my view, establishes that since the Trust was settled, certain persons, including the Trustee, the beneficiaries and advisers to the Trust have acted in a way consistent with the due establishment of the Trust.”

References:

• Sutton v NRS(J) Pty Ltd [2020] NSWSC 826
• Davis v White [2016] NZHC 1626
• Re Porlock Pty Ltd [2015] NSWSC 1243
• D R McKendry Nominees Pty Ltd [2015] VSC 560