Can I make other changes to my trust deed using this Deed of Rectification Product other than correcting a trust name, party name, addresses or ACN?
No. Due to the nature of the product, you will only be able to rectify the party names, the trust name and or the address of a party to the deed.
The application of the Deed of Rectification is limited to these matters because they are common and relatively straightforward to amend.
If your trust deed contains other errors which you consider may be amended by way of rectification, you should seek independent legal advice.
What is the difference between a deed of rectification and a deed of variation?
A deed of rectification is designed to 'rectify' or correct certain details included in the original document which were incorrect and which:
- The parties intended to be included in their correct form; and
- Were included in the incorrect form as result of a mistake.
As such, rectification does not operate to change the existing form of the document to something different,
but to implement the form it should always have been in (as if the mistake had not been made).
By contrast, a deed of variation updates details in a document which, while initially correct, have since changed or the parties have determined they should no longer apply.
What is the legal basis for rectifying a document such as a trust deed?
'Rectification' is an equitable remedy that allows correction of a written contract or document so that it accurately reflects what the parties actually agreed upon.
Rectification is based in equity, not common law. That means it's about fairness and justice, rather than strict legal rules.
Courts have traditionally held that rectification requires the following conditions to be met:
- Common intention between the parties in relation to the relevant term or aspect of the document at the time it was created;
- A mistake in the document such that it fails to reflect the common intention of the parties; and
- Clear evidence of the common intention and the mistake.
What types of mistakes can be rectified by deed between the parties rather than requiring Court order?
Common clerical or 'typographical' mistakes can be rectified by way of a deed between the parties, rather than having to apply to a Court to approve the rectification.
The Deed of Rectification will require all of the parties to the original document to sign the Deed of Rectification. You should have unequivocal evidence of the correct details when completing the Deed of Rectification (e.g. a driver's licence with the correct name or company search with a company's correct address).
When do the changes made by the deed of rectification have effect from?
The change(s) made by correcting a document under a deed of rectification takes effect from the date of the original document
(e.g., from the date on which the trust was established under the trust deed). The Deed of Rectification updates the trust deed to reflect the correct details,
as if those details had been included from the beginning. By contrast, a deed of variation only amends the details contained in the trust deed on,
and with effect from, the date on which the deed of variation is entered into.
If certain details (such as the name of one of the parties to the trust deed) have changed since the trust was established, is this Deed of Rectification the right product to update the details?
No. If the details contained in your trust deed were correct as at the time the trust was established but have changed since that time, then the Deed of Rectification is not the correct product to use.
This is because the entry of the relevant details in the trust deed was not a mistake. If details have changed, you should consider the Deed of Variation Product instead.
Can I change named beneficiaries?
No. Seeking to change a named beneficiaries of the Trust is not within the scope of this Deed of Rectification product (which only addresses updating incorrectly entered details).
If you wish to make such changes, this will generally require additional documentation to be prepared in respect of your Trust.
As Cleardocs does not offer document package to make such changes you should contact the Cleardocs Help Desk at cleardocshelpdesk@maddocks.com.au.
Maddocks Lawyers will then get in touch with you to provide further assistance with the Deed of Variation you require.
Can I change property details?
No. This is a complex matter which gives rise to tax and duty considerations. If you wish to make such changes you should obtain professional advice.
What if I do not have a Cleardocs trust deed?
This product is only designed to be used where your trust deed has been prepared using Cleardocs.
If you have a non-Cleardocs trust deed, you should obtain legal advice rather than using this product.
What if I enter incorrect details while preparing this Deed of Rectification?
It is important to ensure that you do not enter incorrect details into this Deed of Rectification product. Entering incorrect information while seeking to rectify your deed,
will likely result in your trust deed requiring further rectification that cannot be achieved using this product. If you create and execute a Deed of Rectification with incorrect details,
you should obtain independent legal assistance to address the issue.
What if there are multiple parties of the same type, but they do not all require details to be corrected via rectification?
If, under your original trust deed:
- there were multiple parties of the same type (e.g. two or more trustees, beneficiaries, appointors or unitholders); and
- the details of at least one (but not all) of those parties was entered incorrectly (and therefore requires rectification),
you will be presented with the opportunity to enter updated information for each of the parties of that type; however,
- you must only enter information in respect of the party (or parties) which have incorrect details recorded in the original trust deed; and
- must not enter any further information in respect of any party whose details are entered correctly.
If you enter information in respect of any party whose details do not actually require rectification, then the document will treat those details as if they need to be,
and in fact are, rectified. For example: where one trustee address has been recorded incorrectly, only enter the correct address for that trustee, do not include anything in the
address text box for the trustee whose address was correctly recorded in the original trust deed. Accordingly, it is very important you only enter additional information in relation to
parties whose details actually require rectification.
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The master documents are written in plain
language and are signed-off by our lawyers at Maddocks.
