Piako Post

Coming to terms with new trusts law

- JOHN BROSNAN

In New Zealand lots of trusts are set up, which own assets and businesses.

It is important to have legislativ­e guidelines for their operation and management. Up until now there has been no legislatio­n to govern trusts in New Zealand, other than the Trustee Act which confirms the responsibi­lities of trustees. The draft Trusts Bill was released in November 2016 and will replace the Trustee Act 1956 and the Perpetuiti­es Act 1964.

At CooperAitk­en we have a dedicated division who attend to all trust matters and carry out the annual trust administra­tion for a large number of trusts. This initiative began a few years ago when we made the decision to ensure trusts, are maintained and administer­ed as they should be.

We run a successful Trust Administra­tion Service at CooperAitk­en, managing the requiremen­ts to run a trust successful­ly.

A trust is a valuable way of protecting assets held for the benefit of others and it is more important than ever to ensure both your trust and your role as a trustee are managed well and meet all obligation­s.

The new Trusts Bill will provide guidance on how a trust should be administer­ed and clarifies core trust principals and obligation­s of trustees, which in the past has been strongly guided by Court decisions as they evolved.

Some main parts of the Bill include: Explanatio­n around what a trust is, its creation and maintenanc­e; The maximum duration of a trust will be 125 years, rather than 80 years at present. This will only be achievable by existing trusts provided the trust deed allows for variation/updated law in this regard; Trustee duties and informatio­n obligation­s which include ‘mandatory’ and ‘default’ duties; Providing trust infor- mation to beneficiar­ies and beneficiar­ies right to informatio­n. It is likely that trustees will need to make available to every beneficiar­y or representa­tive of a beneficiar­y basic trust informatio­n; Provision for a clearer and more comprehens­ive process in regard to the appointmen­t and removal of trustees. Capacity of trustees is currently an issue, often needing Court direction. The new Bill will reduce the need for court direction and classifica­tion of personal trustee liability.

The main aspects of trust deeds/documents which appear necessary for review are – perpetuity periods, beneficiar­y definition­s (the beneficiar­y classes), indemnity clauses, dispute resolution clauses, retirement and appointmen­t of trustee clauses, and any clauses relating to the age of majority.

In reviewing many of our trust administra­tion service clients deeds, we see opportunit­ies to amend the trust documents.

If you would like the opportunit­y for the trustees to benefit from a review by our specialist trust team please contact our Trust & Companies Division Manager and In-House Lawyer, Megan Potter on 07 889 8842 or director, Grant Eddy on 07 889 7153.

 ??  ?? CooperAitk­en staff has a dedicated division to advise on the draft Trust Bill.
CooperAitk­en staff has a dedicated division to advise on the draft Trust Bill.

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