Contents

Introduction

The Law Commission’s review

1The Law Commission is undertaking a comprehensive review of trust law and the Trustee Act 1956. This review follows the publication of the 2002 Law Commission report Some Problems in the Law of Trusts,1  which resulted in the Trustee Amendment Bill 2007. That review was narrowly focused and pinpointed particular issues that were considered problematic. When the Justice and Electoral Select Committee considered the Bill its view was that the Bill did not reform the law relating to trusts extensively enough. The Select Committee urged the Government to conduct a comprehensive review. This current review is a result of the Government subsequently referring trust law to the Law Commission for review. The Bill has not progressed further.

2Trust law is a broad topic covering doctrines of equity that have been developed by the courts over the centuries and matters that are legislated in the Trustee Act and Perpetuities Act 1964. We have considered whether reforms are necessary or would be beneficial to the operation of trusts in New Zealand. The review primarily focuses on the core principles of trusts, the duties, powers and role of trustees, and the powers of the court in relation to trusts.

3Consideration of these matters has necessarily led to reviewing how trusts are handled within the court structure and whether other supervisory structures could usefully assist, and the potential need for public regulatory requirements to control the creation and ongoing management of trusts. Because they are a mechanism for holding property, trusts interact with other areas of law in circumstances stretching from the personal to the commercial. While the scope of this review does not extend beyond trusts themselves, it has been necessary for us to consider whether this interaction between trusts and other areas of law is creating any pressure points that can and should be addressed within trust law.

4We have approached this review by presenting a series of Issues Papers that have sought to explore the background and context of trusts in New Zealand and raised issues regarding the areas of trust law that may be in need of reform or about which there is debate or concern. The Issues Papers published in this review are:

5We sought submissions on each of these papers and have received 98 in total. We received submissions from law firms, accountancy firms, the judiciary, statutory trustee corporations, energy trusts, trustee and trust practitioner associations, law societies, trustee service providers, government departments, non-governmental organisations, private sector companies working in relevant fields, and a few individuals. Based on the comments received, as well as further research, consultation and expert advice we have refined our consideration into the concrete proposals contained in this paper. We recognise that our submissions have predominantly come from those representing the perspective of trustees. The nature of this type of consultation is such that we are more likely to receive responses from those with a more defined, active role in relation to trusts. This has meant that we have needed to keep in mind the interests of other stakeholders, such as beneficiaries, when formulating the preferred approach. At points the preferred approach does not align with the option favoured by the majority of submitters. In these cases, we were of the view that the law and the overall interests of all of those affected would be better served by an alternate approach.

6Because of the wide-ranging, complex and significant nature of trust law and the reforms being proposed, we are providing one final opportunity for submissions before we finalise our recommendations in our final report.

7The review of the Trustee Act 1956, the Perpetuities Act 1964, and trust law generally is stage one of the Commission’s trusts project. Stage two will be a review of charitable trusts and the Charitable Trusts Act 1957, and purpose trusts generally. Stage three will be a review of trustee companies and the trustee companies’ legislation.

1Law Commission Some Problems in the Law of Trusts (NZLC PP48, 2002).
2Law Commission Review of Trust Law in New Zealand: Introductory Issues Paper (NZLC IP19, 2010). All Issues Papers in the review of the law of trusts are available at <www.lawcom.govt.nz/project/review-law-trusts?quicktabs_23=issues_paper>.
3Law Commission Some Issues with the Use of Trusts: Review of the Law of Trusts − Second Issues Paper (NZLC IP20, 2010).
4Law Commission Perpetuities and the Revocation and Variation of Trusts: Review of the Law of Trusts − Third Issues Paper (NZLC IP22, 2011).
5Law Commission The Duties, Office and Powers of a Trustee: Review of the Law of Trusts − Fourth Issues Paper (NZLC IP26, 2011).
6Law Commission Court Jurisdiction, Trading Trusts and Other Issues: Review of the Law of Trusts – Fifth Issues Paper (NZLC IP28, 2011).