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The Trusts Act 2019 will replace the Trustee Act 1956 and the Perpetuities Act 1964 from 30 January 2021 (18 months after it received Royal assent). See http://www.legislation.govt.nz/act/public/2019/0038/latest/DLM7382815.html#DLM7382879.

The badly outdated Trustee Act 1956 and the Perpetuities Act 1964 have at long last been replaced by the Trusts Act 2019 which is designed to make trust law more accessible, clarify and simplify core trust principles and essential obligations for trustees, and preserve the flexibility of the common law to allow trust law to continue to evolve through the courts.

Key features of the Trusts Act 2019: 

  • $1·         a description of the key features of a trust to help people understand their rights and obligations;

    $1·         mandatory trustee duties and default trustee duties (which apply unless they are modified or excluded) based on established legal principles to help trustees understand their obligations;

    $1·         Clarifying that a trustee has an obligation to have regard to the context and objectives of the trust when performing their duties;

    1.                               

    $1·         requirements for managing trust information and disclosing it to beneficiaries (where appropriate), so they are aware of their position;

    $1·         flexible trustee powers, allowing trustees to manage and invest trust property in the most appropriate way;

    $1·         provisions to support cost-effective establishment and administration of trusts (such as clear rules on the variation and termination of trusts);

    $1·         options for removing and appointing trustees without having to go to court to do so.

    $1·         the abolition of the rule against perpetuities, and the setting of a maximum duration of a trust at 125 years;

    $1·         a requirement for any person paid to give advice in relation to the creation of a trust (such as a lawyer or accountant) to, prior to the creation of the trust, give specific advice to the settlor about:

    $1o   the meaning and effect of any modification or exclusion of a default duty; and

    $1o   the inclusion of any clause limiting or excluding the trustee’s liability for a breach of trust, or granting the trustee an indemnity against the trust’s property for the trustee’s liability for breach of trust;

    $1·         a requirement for each trustee to keep specified documents relating to the trust, including records of any decisions that they have made and contracts that they have entered into.

As a result of these major changes, all trust deeds need to be substantially updated.

 

 

Our trust deeds have now been updated to cover the new provisions included in the Trusts Act 2019 and in particular:

 

  1. Mandatory duties of trustees.
  2. Standard default duties of trustees, and how they have been modified.
  3. A new perpetuity period of 125 years from 30 January 2021 (the date upon which the Trusts Act 2019 comes into force).
  4. Details of the advice we have given to the Settlor before signing the trust deed.
  5. Details of the records which it is mandatory for the trustees to keep.
  6. New rules for the provision of information to beneficiaries, which are similar to our present ones.

 

 

For the reasons detailed above it is essential that all trust deeds be varied and replaced with an updated trust deed.

 

A 20 year old trust deed is like a 20 year old TV - it may work but not very well

 

A Trust is a bit like a TV. It becomes outdated and does not work well over time. If you fail to update it, it will breakdown, and may fail to achieve your important objectives. Our trust deeds have been changed substantially over the years to make them even safer, and to cover changes in legislation and case law.

 

As your circumstances, and the law, change, trust documents need to be updated to reflect these changes. Our latest trust deeds:

  1. Now rank the beneficiaries, and no longer have a list of beneficiaries with no prioritisation.
  2. You are now ranked Principal Beneficiary(ies) (number one) with the legal right to live in the Trust’s home and be maintained in the standard to which you are accustomed.
  3. Other Primary Beneficiaries are ranked as:
    1. Class B (number two): Normally children.
    2. Class C (number three): Normally grandchildren who now “inherit” the share of their parent, if one of your children dies before you.
  4. Secondary Beneficiaries: They receive nothing unless all of the Primary Beneficiaries die.
  5. Include a clause permitting income allocation within up to 12 months (as opposed to the present 6 months) if an accountant prepares the Trust's taxation return.
  6. Include the full legal names and dates of birth of all beneficiaries to satisfy the requirements of banks and others.

 

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