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Trust Deeds

August 10, 2017

Our focus this week has been on discretionary trust deeds and superannuation trust deeds.

We are currently sorting out a superannuation fund which was created in 1993, amended in 1995, had one trustee retire and another purportedly appointed in 2003 and all of its rules purportedly replaced in 2008. However…

We only have a copy of the original deed and it is dated 15 June 2003, for some reason, but it refers to legislation that was repealed in 1994 and the Principal Employer named in the trust deed ceased to have anything to do with the members in 2000, and a 2008 amending deed refers to a 1993 deed, so we are confident that the deed we have is the 1993 deed.

No one can find the 1995 amending deed.
The 2003 deed was a template that someone completed incorrectly. While one trustee probably effectively resigned, the new one was not actually appointed.
The 2008 deed was not signed by the new contributing employer either, so that was invalid.

The auditor of the superannuation fund is now embarrassed because he should have picked up all these issues.

We have drafted a new deed to put into effect the intent of the 2003 and 2008 deeds so that we can then ratify everything that everyone has done in reliance upon them being effective, but we will then replace all the rules of fund with some more modern and up-to-date rules.

We have now developed a comprehensive checklist tool for checking trust deeds.

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