4.24The age of majority in section 40 (and in the whole of the Act) is 20 years. There are concerns that this is not in line with the Minors’ Contracts Act 1969, Care of Children Act 2004 and Wills Act 2007, under which a minor or child is a person under the age of 18 years. The Property Law Act 2007, while not changing the age of majority, does allow persons between 18 and 20 to do certain things.
4.25Consideration of section 40 raises the issue of the age of majority in the Trustee Act generally. Section 40 is the only section of the Trustee Act that specifies an age of majority. Several other sections of the Trustee Act use the terms “full age”, “infant” and “infancy” which in accordance with section 4 of the Age of Majority Act 1970 imply an age of majority of 20. These provisions are:
4.26For the same reasons that we recommend a change to the age in section 40 of the Trustee Act, we propose that the Age of Majority Act 1970 not apply to the new trusts legislation. This would mean that any reference to a minor (or similar term) would imply a person aged under 18. Any provisions equivalent to those in the above list would presume an age of majority of 18. We consider that under New Zealand law an 18 year old has the same legal capacity and the same capability as a 20 year old for most purposes. It would be discriminatory to leave the age of majority under the trusts statute at 20 years because there is no objectively assessable reason for distinguishing between 18 and 20 year olds.
4.27The new legislation should explicitly provide that the age of majority for the purposes of trusts legislation is 18, or provisions where it is necessary to refer to an age of majority are drafted to refer to the specific age rather than rely on a term such as majority or infancy.
4.28In order for the trust law to operate consistently, the reform should apply to all trust law, including trusts established by wills, rather than just the specific sections of the trusts legislation that refer to an age. It is important that the changes also make clear that the age at which a trustee can pay out a beneficiary as an adult is 18 years.