This article was written by Nancy Wang Principal Solicitor at W & G Lawyers.
In an earlier article we looked at what happens when a trust deed cannot be found. There is a quieter problem that is, in some ways, more dangerous — because the deed is sitting right in front of you, fully typed, neatly formatted, and apparently signed. The trouble is how it was signed. Increasingly we are seeing trust deeds, variation deeds, and deeds appointing or removing trustees where an image of someone’s signature has simply been dropped into the document — copied from an earlier file, lifted from a scan, or pasted from a photo — rather than properly signed.
A lost deed raises a question of proof: the trust was validly created, and the task is to establish its terms. A deed signed by a pasted-in signature raises a more fundamental question of validity: was the deed ever properly executed at all? You cannot reconstruct your way out of that problem, because there may be nothing valid to reconstruct.
Pasting a signature is not the same as signing electronically
It is easy to assume that because electronic signing is now lawful in Queensland, any electronic mark on a document will do. That is not how the law works. Under section 14 of the Electronic Transactions (Queensland) Act 2001, an electronic signature is effective only where a method is used to identify the person and to indicate that person’s intention in relation to the document, and the method is as reliable as appropriate in the circumstances. The Property Law Act 2023 (Qld) carries the same theme through to the execution of deeds.
A genuine electronic signing process — a recognised signing platform, a typed name applied by the signatory, or a stylus signature applied by the person themselves — captures that act and that intention, usually with an audit trail to match. A static image of a signature pasted into a document captures none of it on its face. It does not show who applied it, whether that person was the signatory or authorised by them, or whether the signatory intended to execute that particular document at that moment.
The lesson of Williams Group Australia Pty Ltd v Crocker
The risk is not theoretical. In Williams Group Australia Pty Ltd v Crocker [2016] NSWCA 265, a company director’s electronic signature was applied to a guarantee through a signing system without his knowledge or authority. The New South Wales Court of Appeal held that he was not bound. The starting principle is a stark one: where a document is purportedly executed without the authority of the person whose signature is applied, it is null and void — though a party seeking to rely on it may, depending on the facts, attempt to invoke ostensible authority, ratification or estoppel.
The Court also noted what every adviser should keep in mind: producing a fake electronic signature can be as simple as taking a screenshot of a genuine one and pasting it in, and applying another person’s signature without authorisation may amount to forgery. The convenience that makes pasting tempting is precisely what makes it fragile.
Why this matters so much for a trust
When the defective document is a trust deed, the consequences run far deeper than a single contract:
The trust itself. If the original settlement deed was never validly executed, the trust may never have been properly constituted. Property held “on trust” may in truth be held beneficially by the trustee or on resulting trust for the settlor — and years of distributions may have been made without authority.
Variations. If it is an amending deed that was pasted, the variation may have no effect, and the trust continues on its earlier terms. Resolutions made in reliance on the “new” terms — extended vesting dates, broadened beneficiary classes, expanded powers — may fail.
Changes of trustee. A pasted deed of appointment or retirement may mean the incoming trustee was never validly appointed, and the outgoing trustee remains the legal trustee. Dealings, contracts and security given in the meantime may be unauthorised.
Tax. Invalid execution can unravel the trust’s tax position. Distributions may be reassessed, and resolutions resting on an ineffective deed may not hold. As with a missing deed, attempting to fix the problem with a fresh deed can risk a resettlement and trigger capital gains tax and stamp duty.
The trustee personally. A trustee acting under a void deed acts outside its authority, may lose the right to be indemnified from trust assets, and may be personally liable to beneficiaries.
The burden is the opposite of a lost deed
This is the point that catches people out. With a lost-but-valid deed, you work to prove its terms. With a pasted signature, you must prove valid execution — that the person whose signature appears actually applied it, or authorised its application, with the intention of executing that document. That is often harder to establish, particularly years later, and the document’s own metadata may end up being the most important evidence in the file.
A checklist for trustees and advisers
Look at how each deed was signed, not just whether a signature appears — be alert to identical signature images reused across documents.
For any electronically executed deed, keep the signing platform’s audit trail or completion certificate, which records who signed, when, and how.
Never paste an image of someone’s signature into a deed on their behalf, even with their verbal say-so — have the person sign properly.
Where a pasted or doubtful signature is found, obtain the file metadata and the circumstances of signing before relying on the deed.
Consider a deed of ratification or confirmation by the relevant parties where they are available, willing and have capacity — but take tax advice first, as with any lost-deed fix, because of the resettlement risk.
Where validity is genuinely in doubt or disputed, seek judicial advice or a declaration rather than papering over the gap.
Related Article Links: https://wglawyers.com.au/when-the-trust-deed-cant-be-found-a-practical-guide-for-trustees/#more-3474
How W & G Lawyers can help
A validly signed deed is the foundation a trust stands on. If you are not certain how your trust deed — or a variation or change-of-trustee deed — was executed, it is far cheaper to check now than to discover the problem in the middle of a dispute or an ATO review. Our team can review how your trust documents were signed, advise on whether execution was effective, and where necessary arrange ratification, proper re-execution, or an application to the court — coordinating with your tax advisers throughout.
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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.