Law of Trusts

Start date
14 March 2009
04 473 3453
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Project Overview

For this project, the Commission reviews the Trustee Act 1956 and trust law generally. In the first stage of this review, the Report, Review of the Law of Trusts: A Trusts Act for New Zealand (R130) is preceded by six Issues Papers. The Report makes recommendations for the introduction of a modern and comprehensive Trusts Act to replace the outdated Trustee Act 1956. 

The series of five Issues Papers are on different aspects of the law of trusts and the legislation, and the Preferred Approach Paper outlines the Commission's approach to reform in each of the areas covered. Each Paper asked questions and called for submissions and comments. The Papers are as follows:

  • Introductory Issues Paper (IP19) – this is primarily a background paper.
  • Second Issues Paper (IP20) − covers concerns with the use of trusts (especially family trusts) in New Zealand.
  • Third Issues Paper (IP22) − addresses the rule against perpetuities and the revocation and variation of trusts.
  • Fourth Issues Paper (IP26) − focuses on trustees (trustee duties, the office of trustee, and trustee powers).
  • Fifth Issues Paper (IP28) − addresses remaining issues such as trading trusts, registration of trusts, court jurisdiction and obligations of trust advisers.
  • Preferred Approach (IP31) - outlines the Commission’s preferred approach across the range of possible reforms to trust law that were discussed in the first five Issues Papers. 
Terms of Reference 

The Select Committee report included a list of other topics that it thought would be a desirable part of such a review: the rule against perpetuities; . the removal of trustees; . New Zealand becoming a signatory to the Hague Convention on the Law Applicable to Trusts and on their Recognition; . supervision of, and trust principles in relation to, superannuation trusts; . the extent to which a settlor or trustee can contract out of trustee duties; . the irreducible core of trustee duties; . trading trusts; . access to trust information by beneficiaries; and . statutory powers to vary and resettle a trust. The National Party members of the Select Committee, then in opposition, provided a comment that expressed the need for a more comprehensive review of the Trustee Act and was stronger in its criticism of the limited scope of the Bill:12 [T]his is very poor legislation which results from an ancient Law Commission report. It misses some big issues while concentrating on a series of minor ones. The real need is to repeal the out-of-date Trustee Act 1956 and replace it with legislation which is relevant and up to date. This reference was, in essence, the Government’s response to the recommendation by the Select Committee that there be a wider inquiry into the law of trusts than the Commission’s 2002 Report.