A trustee can at any time seek advice and directions for the Court if any doubts exist about a purported Deed of Variation.
In Re: Plator Noninees Pty Ltd (No. 1427 or 2012) an application under Order 54.02 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic) was made for advice and to vary the terms of a trust under s 63A of the Trustee Act 1958 (Vic).
A trust had been established on 20 June 1972 by a Deed and the trustee applied for judicial advice on whether the terms of the trust were amended by a purported Deed of Variation dated 10 September 1980. The original 1980 Deed of Variation could not be located, however an unexecuted copy of the deed was located in the files of the Trustee’s accountant.
Davies J held that on the evidence presented to the Court the 1980 Deed of Variation had been executed and that the copy of the 1980 deed in the possession of the accountant was a true copy of the original executed 1980 Deed of Variation.
A copy of the transcript can be found here.