The identification and rectification of missing or deficient documentation concerning SMSFs, trusts, and companies are critical matters and expert input is essential. DBA Lawyers regularly handles assignments that involve thorough document trail reviews as well as confirmation and/or ratification of previous documents. We are one of the few firms who provide such remedial review services as a standard offering. DBA Lawyers’ extensive experience in this area provides assurance to our clients that we can help address the challenges associated with missing or deficient documents.
This article outlines a number of key services where DBA Lawyers can provide assistance.
SMSF Lost Deed Service
Many SMSF strategies and arrangements depend on the fund’s governing rules being appropriate and having a firm foundation. More specifically, a fund’s document trail must be in order for compliance purposes as well as for the general effectiveness of the SMSF structure as it relates to pensions, binding death benefit nominations and succession to control at the trustee-level passing as intended (eg, upon the death or loss of capacity of fund members).
An SMSF with a lost deed exposes the trustees/members to considerable legal risks and other practical difficulties. For instance, in the context of disputes about the payment of death benefits, purported document trail deficiencies are often an important part of claims brought by aggrieved beneficiaries. Additionally, it is standard practice for third parties, such as accountants, financial advisers, lawyers, auditors, the ATO, banks, and state revenue offices, to require review and verification of a fund’s deed trail.
DBA Lawyers offers a lost SMSF deed service to facilitate a replacement deed where the original cannot be located. Furthermore, we can also prepare tailored confirmatory documentation to bolster a fund’s document trail.
We also offer an SMSF Deed History Review service to help identify and mitigate risks based on a detailed review of each document comprising the fund’s document trail by one of our expert lawyers.
For more information regarding these services and for general guidance on what searches should be undertaken by trustee/members in relation to missing SMSF deeds, please see here and here.
Lost Trust Deed Service
All trustees have a fundamental duty to uphold the terms of the trust. As a corollary of this duty, trustees must be able to properly ascertain the terms of the trust. Losing a trust deed can give rise to uncertainties and potential challenges regarding trustee actions and decisions. Trustees and advisers should, therefore, seek expert legal advice if there is any doubt whatsoever regarding a trust’s terms.
Given the substantial tax issues that can arise in varying a trust deed (eg, in relation to the potential resettlement of the trust), care is required in any document that seeks to record or confirm the terms of a trust.
Recent case law has highlighted the risks associated with lost trust deeds, as well as the possible steps that can be taken to best protect the continued existence of the trust. DBA Lawyers has previously written an article explaining the case law as well as actions a trustee may take, for more information on this, please see here.
To instruct DBA Lawyers in relation to a trust document trail review or to find out more about our related services, please visit our website here for more information.
Lost Constitution service
DBA Lawyers offers a lost constitution service to put in place a replacement company constitution where the existing constitution or memorandum and articles of association cannot be located, ie, despite exhaustive searches being undertaken.
Additionally, we offer a variety of remedial documents for companies including:
- the adoption of a constitution for a company that is operating on the replaceable rules in the Corporations Act 2001 (Cth), ie, where no constitution has been adopted previously;
- confirmatory documentation, eg, to ratify and confirm company decisions and actions; and
- replacement company register documents where the existing documents have been lost or where the register is otherwise deficient.
For detailed information concerning lost constitutions, please see here.
Conclusions
Missing SMSF, company or trust documents can have serious negative repercussions if not dealt with appropriately. DBA Lawyers recommends that SMSF trustees, members and advisers take proactive steps to address any document trail deficiencies. Taking prompt remedial action to address such issues is generally more cost and time effective than trying to manage exposures at a later stage.
Naturally, DBA Lawyers’ array of services and team of experienced lawyers can provide assistance with any lost document matters. To get in contact with us, please visit our website here.
Related articles:
- Recent judgement has important implications for SMSFs with incomplete deed histories
- What to do if a company’s constitution is lost?
- Honey, I lost the deed!
- Lost deed case – Lawyer gives expert evidence on likely terms of missing trust deed
- Lost trust deeds: Due search and secondary evidence
- Sutton v NRS(J) Pty Ltd [2020] NSWSC 826: Lessons for managing lost trust deeds
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This article is for general information only and should not be relied upon without first seeking advice from an appropriately qualified professional. The above does not constitute financial product advice. Financial product advice can only be obtained from a licenced financial adviser under the Corporations Act 2001 (Cth).
Note: DBA Lawyers presents monthly online SMSF training. For more details or to register, visit www.dbanetwork.com.au or call 03 9092 9400.
For more information regarding how DBA Lawyers can assist in your SMSF practice, visit www.dbalawyers.com.au.
By William Fettes, Director and Daniel Butler, Director, DBA Lawyers
DBA LAWYERS
25 February 2025
