This article was written by Nancy Wang Principal Solicitor at W & G Lawyers.
Lost trust deeds are far more common than most clients expect. An adviser retires and their files are dispersed, a family member passes away and their papers are cleared out, an office relocates and a folder never resurfaces — and the single document underpinning an entire trust structure simply vanishes. The trust may have operated smoothly for decades, but the moment someone needs the original deed, its absence becomes a real and pressing problem.
The difficulty is rarely abstract. Without the deed, a trustee can struggle to open or maintain a bank account, refinance or borrow against trust assets, satisfy a land titles registry, prepare the annual distribution resolutions the ATO expects, or make any confident decision about who is entitled to what. The machinery of the trust seizes up.
A trust does not die with its paperwork
It is worth being clear about one thing at the outset: a trust does not cease to exist merely because the deed has gone missing. A trust is a relationship, not a piece of paper. For as long as a trustee holds property for the benefit of beneficiaries, that relationship continues.
The harder problem is functional. A trustee’s core obligation is to administer the trust strictly according to its terms — and if those terms are unknown, the trustee cannot be confident it is acting lawfully. Every distribution, every investment decision, every exercise of discretion is taken in the dark. That exposure is what makes a lost deed a matter to address promptly rather than to live with.
The lesson of the Mantovani litigation
The Victorian proceedings in the Mantovani matter show just how high the stakes can be. The dispute concerned a discretionary family trust settled in 1976 and run by a corporate trustee, with control passing through the family over the years. After the deaths of the original couple and the onset of family conflict, exhaustive searches failed to turn up the original deed. What survived was fragmentary — a partial schedule, plus financial and tax records pointing to the trust’s existence and operation.
At first instance, in Mantovani v Vanta Pty Ltd (No 2) [2021] VSC 771, the court took a strict view: where a deed is lost and its terms cannot be proven by clear and convincing secondary evidence, the trust may fail for uncertainty, with the property reverting on a resulting trust to whoever originally contributed it. That outcome would have pulled the assets back toward the deceased’s estate.
On appeal — reported under reversed party names as Vanta Pty Ltd v Mantovani [2023] VSCA 53, because the trustee was the appellant — the Court of Appeal disagreed. It held that the trust had not failed and continued to exist, so the property remained held for the beneficiaries rather than falling into the estate. But the victory came with conditions. The appeal court accepted there was still inadequate evidence of the trustee’s powers and the vesting date, and the trustee gave an undertaking to return to the Supreme Court for guidance on how to administer the trust going forward.
Two features of the case deserve emphasis. First, two courts reached opposite conclusions on substantially the same material, which is a useful warning that this area of law offers little certainty to plan around. Second, and more painfully, the matter was fought through a trial and an appeal, generating very substantial legal costs. At first instance the trustee was treated as having engaged in hostile litigation, was refused recourse to the trust for its own costs, and was ordered to pay the claimant’s costs on an indemnity basis — exposure that flowed directly from its conduct and its failure to hold a copy of the deed. That costs order was set aside once the appeal succeeded, but only after years of dispute had eroded the very assets the family was fighting over — an outcome that a single retained copy of the deed would almost certainly have prevented.
What other Australian courts have done
The Mantovani proceedings sit within a broader body of case law in which courts have responded to lost deeds in markedly different ways, depending on the facts before them. Across these decisions, courts have:
- recognised how difficult it is for a trustee to discharge its duties when it has no copy of the governing rules (Jowill Nominees Pty Ltd v Cooper [2021] SASC 76);
- found that a trustee’s searches were inadequate, and directed further enquiries and additional evidence before any relief would be granted (Re Barry McMahon Nominees Pty Ltd [2021] VSC 351);
- permitted a trust to be administered on the basis of a surviving (unsigned) copy where the original could not be located (The Application of M & L Richardson Pty Ltd [2021] NSWSC 105);
- given judicial advice that a trustee was justified in administering a trust substantially in line with a “mirror” deed, where the secondary evidence met the required standard (Barp Nominees Pty Ltd [2016] NSWSC 990); and
- looked to the parties’ subsequent conduct — including their dealings with banks and the ATO — to infer that a fund had been validly established despite the absence of a signed deed (Sutherland v Woods [2011] NSWSC 13).
The throughline is that these outcomes are intensely fact-specific. What carries the day is the strength of the secondary evidence, the thoroughness of the trustee’s searches, and the consistency of the parties’ past conduct.
What to do when a deed goes missing
Search first, and search properly
The starting point is always a genuine, documented search. Begin with the people most likely to hold a copy: current and former trustees, beneficiaries, and the estates of anyone deceased who was involved. Widen the net to the original drafting solicitor, accountants, financial advisers, business partners, and any bank that dealt with the trust. If the trust holds land, the relevant state or territory titles registry may hold a copy noted on title. Keep a record of every enquiry — courts will later scrutinise whether reasonable efforts were genuinely made.
Weigh the available options
If the deed truly cannot be recovered, several paths exist, and the right one depends on the trust’s complexity and the evidence to hand:
- Confirmation deed. Where a signed or unsigned copy survives and the key parties agree it reflects the true terms, a deed confirming those terms will often satisfy banks and other institutions without the need for litigation. This is frequently the simplest and cheapest route.
- Replacement deed. A trustee may instead replace the deed entirely — but this carries real risk. Depending on the circumstances, a wholesale replacement can be treated as a resettlement of the trust, potentially triggering capital gains tax and stamp duty. This option should never be pursued without tax advice.
- Court reconstruction. The trustee can apply to the Supreme Court in the relevant jurisdiction to reconstruct the deed, or seek judicial advice that it is justified in administering the trust on particular terms. It is effective but expensive, and requires leading evidence about what the deed actually said.
- Administration under trustee legislation. For a straightforward trust, it may be possible to continue administering it under the general provisions of the relevant state or territory Trustee Act, without reconstructing the deed at all.
Don’t overlook the tax dimension
A point that catches many trustees by surprise: even a confirmed or reconstructed deed is not guaranteed acceptance by the revenue authorities or by financiers. The ATO may decline to take the reconstituted terms at face value, and a trust can be assessed on the basis of its actual activities rather than the rights and obligations recorded in a new or confirmed document. For that reason, tax advice should be obtained before any deed of confirmation or replacement is executed, not after.
A checklist for trustees and advisers
- Search comprehensively — current and former trustees, beneficiaries, deceased estates, the drafting solicitor, accountants, advisers, banks, and the land titles registry.
- Document every search — courts assess whether reasonable efforts were made.
- Gather all secondary evidence — copies, schedules, financial statements, tax returns, solicitors’ files, and any correspondence describing the trust’s terms.
- Assess complexity — a simple trust may be administrable under legislation; a complex one will likely need the court.
- Consider a confirmation deed — often the most cost-effective path where a copy survives and the parties agree.
- Mind the resettlement risk — replacing a deed outright may carry CGT and stamp duty consequences.
- Seek judicial advice without delay — where there is doubt or dispute, the trustee bears the onus of bringing the matter to court, and delay can expose the trustee personally.
- Pause distributions — continuing to distribute without knowing the terms risks personal liability and an order to account.
- Scan every deed now — an electronic copy is cheap insurance against an expensive problem.
How W & G Lawyers can help
A missing trust deed is a manageable problem when it is addressed early and methodically — and a far more costly one when it is left to surface in the middle of a dispute. Our team can guide trustees and advisers through searches, secondary evidence, confirmation or replacement deeds, and applications for judicial advice, while coordinating with your tax advisers to keep revenue consequences front of mind.
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Disclaimer
This article is general information only and does not constitute legal advice under Australian law. For advice specific to your situation, please contact W & G Lawyers. For further details, please click here to view our disclaimer.