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Trusts Act 2019 – Time to Act

The Trusts Act 2019 comes into effect on 30th January 2021. The 18 month delay from when the Act was passed to allow time for settlors, trustees and advisors to familiarise themselves with the changes and requirements and review their trust is nearly up. If you have not already started your review then put it on your reading list for this summer. 

While there are many new provisions in the new Act, the main ones that will be of interest to trustees are the setting out of the mandatory and default duties of trustees, the core documents to be held by trustees and the information that is required to be provided to beneficiaries. 

Trustees are required to know the terms of the trust and act honestly and in good faith in accordance with the terms and to be actively involved with the management of the trust. While this was always expected, it was not set out in the legislation before and so possibly not well understood by people when they agreed to become a trustee on a trust. 

All trustees must hold copies of the core trust documents, the trust deed and any variations made to the trust deed, and at least one trustee must hold all the trust documents, including records of assets, minutes and financial records. For some existing trusts those documents might be missing, spread across several lawyers and accountants, or not exist at all. It is time to now locate and gather these deeds and records.

The new Act includes a presumption that basic trust information (the fact that they are a beneficiary and who the trustees are) must be made available to every beneficiary. Beneficiaries are also to be made aware that they are able to request additional trust information. This may possibly pose the biggest challenge for many settlors and trustees. However this presumption as to the supply of information is qualified by certain considerations that trustees may take account of in deciding what, if any, information to provide. 

Many family trusts were set up with a wide class of beneficiaries including the nieces and nephews and partners of beneficiaries in addition to the settlors and their children and grandchildren. It may never have been intended that most of these beneficiaries would ever receive a benefit under the trust but they were included as possible recipients. If your trust deed allows a change to beneficiaries this should be included in your review now. 

At Harmans we have a team with specialist knowledge available to provide you with legal advice about your trust. You can contact Phillipa Shaw at Harmans on 03 352 2293 to arrange an appointment to discuss this.

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