Superannuation - Deed of Confirmation
The only way 'replicating' the terms of a lost deed can be done is by making an application to the relevant Supreme Court to seek a declaration that the trustees can continue to administer the SMSF on the basis of the available document trail (ie minutes, old documets, amended documents, whatever is available). But this costs a lot of money.
The case of Mantovani v Vanta Pty Ltd (No 2) [2021] VSC 771 illustrates the worst case of not having a copy of a document. McMillan J found that if the trust was allowed to continue on the available secondary evidence, it did not provide 'clear and convincing proof of the contents of the Deed' and therefor the administration of the trust would involve 'mere guesswork'.
McMillan J held that the trust failed. On appeal (16/3/2023) it was held that the 'Trust does not fail for uncertainty. It remains a valid trust that is in urgent need of judicial direction.'
Before completing this document and having it signed, the client needs to consider making an application to court to resolve the issue.