Contents

Chapter 2
Why a new Trusts Act?

Types of trusts

2.5At points in this review we have focussed on express private trusts, and in particular family trusts, in the discussion of the issues and possible reforms to trust law. We want to make it clear that trust law applies to a variety of types of trusts and to emphasise the variety of circumstances in which trusts can be involved.

2.6Private trusts benefit individuals and may be enforced by the beneficiaries. Charitable trusts aim to benefit the public by achieving a charitable purpose and are enforced by the Attorney-General.24 Charitable trusts are a form of purpose trust. New Zealand law only allows limited purpose trusts other than charitable trusts, such as trusts for animals or for the maintenance of monuments.25
2.7Express trusts are created deliberately as a result of a settlor’s intention to create a trust. Some express trusts are intended to come into effect after the settlor’s death (testamentary trusts). Testamentary trusts are nearly always created by a will.26 An express trust that takes effect during a settlor’s lifetime is known as an inter vivos trust. Express trusts may also be either fixed or discretionary. In a fixed trust, the trustee has no discretion about which beneficiaries will receive trust property and in what shares, while in a discretionary trust, the trustee does have these discretions. Family trusts are a form of express trust. They can be fixed or discretionary, but are commonly discretionary. They are set up by families for a range of purposes that benefit family members. Some family trusts and other express trusts are established to run a business. In these business trusts, the trust holds the shares in a company which owns the business assets. Protective trusts, which can prevent a beneficiary’s interest from being lost in the event of bankruptcy, are a form of express discretionary trust.27
2.8Trusts are used for a variety of commercial purposes and functions. Trading trusts are trusts in which the trust property is used to carry on business. They often have a structure that involves a company acting as a trustee, holding property on trust for certain beneficiaries, where the company has very few or no assets owned beneficially. Trusts can be used as a vehicle for managing collective investments. Trusts are used for securitisation programmes, under which a trustee is appointed to hold assets in a separate entity from the entity from which receivables assets, such as loans, originate. Trusts are used for the issuance of debt securities to the public, the syndicated bank lending to corporate borrowers, where a trustee holds security over the borrower’s assets for the benefit of a number of lenders who share the security, and the issuance of covered bonds by New Zealand registered banks.28
2.9Unit trusts are a form of collective investment constituted under a trust deed. Superannuation trusts are trusts for managing retirement benefits for employees. All superannuation schemes that register under the Superannuation Schemes Act 1989 must have a trust deed.29 A member of a scheme is a beneficiary of the trust. Trustees are responsible for the management and investment decisions. Other sorts of employee trusts are used for holding long-term benefits for employees, such as shares or share options. These trusts enable shares or options to be held until a distribution date, held in individual packages within the trust, or held for long-term dividend income for the benefit of existing or retired employees. Employee trusts can be more flexible and have fewer administration costs and reporting obligations than superannuation trusts.
2.10Energy trusts were formed after the Energy Companies Act 1992 required all municipal electricity departments and power boards to be corporatised and allowed individual communities to determine how the shares in the new energy companies were to be held. Many local communities allocated shares to a local energy trust.30 Energy trusts vary considerably. Some are charitable trusts where the income of the trust, which is principally in the form of dividends from its shareholding in the electricity lines company, is used for charitable purposes. Others distribute directly to electricity consumers or members of the local community, for instance, through an annual rebate.31
2.11Trusts may also be simple or special. The classification of a simple trust (bare trust) is legislatively created and so can vary from one statute to another, but there are several views of what bare trusteeship involves.32 The most common view of a bare trustee is that it refers to a trustee who has no duties, or if he or she did originally have duties, the trustee can be compelled in equity by the beneficiary to convey the trust property to the beneficiary or by the beneficiary’s direction.33 Bare trusts are often used in the acquisition of assets where it is desirable that the legal owner’s identity remains undisclosed during the acquisition process. A special trust is one where the trustee has duties.
2.12Statutory trusts are created or implied by statute. Examples include trusts created under section 77 of the Administration Act 1969 for children of the deceased when he or she dies intestate or partially intestate, trusts relating to land held by local bodies for public purposes,34 and community trusts established to acquire the shares in the capital of the trustee banks’ successor companies for community benefits.35 Trusts are created under Te Ture Whenua Maori Act 1993 (TTWMA) (discussed below).
2.13Trusts are established for Treaty of Waitangi settlements and utilised by the statutes carrying out these settlements.36 These trusts can have tens of thousands of beneficiaries, and have their own procedures for registration of beneficiaries and for keeping them informed. These trusts are commonly exempted from the rule against perpetuities.
2.14There are also trusts that are not express trusts in that they do not require an express intention to create a trust. Resulting trusts occur when a transferor of property can be presumed not to have intended the recipient of the legal title to be the beneficial owner. As a result the recipient of the legal title must retain the property for the transferor, in the absence of any contrary intention.37 Jessica Palmer places resulting trusts in two categories: “apparent gifts” which covers voluntary conveyance and purchase of property in the name of another person, and “failing trusts” which covers express trusts that fail because of uncertainty and other invalidating reasons, and incomplete disposal of a beneficial interest.38 Constructive trusts arise when no trust has been declared, either directly or indirectly, but it would be unconscionable for the person on whom the court imposes the trust to assert a beneficial ownership.39 An institutional constructive trust arises on the happening of certain events by operation of the principles of equity. A remedial constructive trust is imposed by the court as a remedy in circumstances where previously no trust existed, and so depends on the court for its very existence.40 While they are covered by the current Trustee Act, the Act’s provisions and most of the matters discussed in this review are of little relevance to resulting and constructive trusts. It seems likely that the courts will continue to develop the law in this area.

Māori land trusts

2.15Māori land trusts are unique to New Zealand and make up a significant proportion of New Zealand’s trusts. Unlike the express trusts discussed above, Māori land trusts are generally not settlor-made but are created by order of the Māori Land Court. They are primarily land management structures. They continue in perpetuity and are mostly fixed trusts.41
2.16Māori land trusts have a different historical origin from other trusts. There is evidence that trusteeship of Māori land may have arisen from the cultural institution of rangatira who made decisions in relation to land and communities on behalf of the communities, which means they are more akin to implied trusts.42

2.17Under Part 12 of TTWMA, the Māori Land Court has exclusive jurisdiction to constitute the following five types of Māori land trusts:

2.18The Registrar of the Māori Land Court maintains a record of the legal and beneficial ownership of Māori land.48 The Court advised us that there are 9,230 whānau trusts, 5,575 ahu whenua trusts, 33 whenua topu trusts, three putea trusts, and 2,726 kaitiaki trusts. TTWMA provides much of the law regarding the constitution and administration of Māori land trusts and powers of the court in relation to these trusts. The provisions of the Trustee Act and general trust law are applicable to Māori land trusts where TTWMA is silent. The Government is currently conducting a review of TTWMA to consider legislative intervention to enable the best use of Māori land and this may result in some amendment to the TTWMA regime.49

Foreign trustsTop

2.19Like England, Canada and Australia, New Zealand has a long tradition of resident trusts and a taxation system that imposes tax on income from those trusts.50 Since 1987 the New Zealand Government has made the policy decision to allow trusts to be settled by non-residents and administered by trustees within New Zealand without incurring New Zealand tax.51 This means that New Zealand is an attractive jurisdiction for foreign individuals wishing to make investments through the use of trusts. New Zealand has traditionally been seen as an “onshore” trusts jurisdiction where the traditional plurality of trusts has been for domestic as opposed to foreign wealth.52 However, in not imposing tax on foreign trusts, New Zealand has a feature in common with the “offshore” jurisdictions that have traditionally been used for the settlement of trusts by foreign investors with foreign wealth, such as jurisdictions in the Channel Islands and Caribbean. Unlike some of the offshore jurisdictions, New Zealand has retained the traditional concept of a trust without extending its bounds far outside its historical starting point and has relatively light regulation of the trust industry.53 New Zealand is considered to have sophisticated levels of advice from lawyers and accountants and a judiciary that is relatively advanced in understanding trusts.54
2.20Tax legislation requires the disclosure of details of foreign trusts by New Zealand resident trustees of foreign trusts. The Inland Revenue advise that since October 2006 when a registration requirement for foreign trusts was introduced there have been 7,738 foreign trust registrations.55 The New Zealand resident trustee must belong to an approved organisation, such as the New Zealand Institute of Chartered Accountants, the New Zealand Law Society or the Society of Trust and Estate Practitioners (New Zealand branch). The trustee is also required to keep financial and other records relating to each foreign trust for New Zealand tax purposes and is obliged to provide these details to the Inland Revenue if requested.56 If the trustee does not comply with these requirements he or she may be subject to sanctions, such as prosecution for knowingly failing to disclose or keep the required information. In certain circumstances, the resident foreign trustee may be taxed in New Zealand on the foreign trust’s worldwide income.57
24Andrew S Butler “The Trust Concept, Classification and Interpretation” in Andrew S Butler (ed) Equity and Trusts in New Zealand (2nd ed, Thomson Reuters, Wellington, 2009) 43 at 58. Where there is a legacy to a named charitable organisation, the organisation itself can undertake proceedings to enforce it.
25At 58.
26At 61.
27Law Commission Review of Trust Law in New Zealand: Introductory Issues Paper (NZLC IP19, 2010) at [2.73]−[2.74].
28Information provided by Chapman Tripp in its submission on the Preferred Approach Paper.
29Superannuation Schemes Act 1989, s 3. The Unit Trusts Act 1960 and the Superannuation Schemes Act 1989 would be repealed by the Financial Markets Conducts Bill 2011 (342-2) which is currently before Parliament. This Bill replaces the existing schemes for these statutory investment trusts with a new scheme that regulates matters including misleading or deceptive conduct, disclosure of information to investors, duties of persons associated with such schemes, powers of supervision, the licensing of certain financial market securities providers, and financial reporting obligations. As with the existing statutory trust schemes, where provisions of the new specific legislation conflict with trusts legislation and trust law, the specific scheme will prevail.
30(7 May 1992) 524 NZPD 8349; Andrew S Butler “Trusts and Commerce” in Andrew S Butler (ed) Equity and Trusts in New Zealand (2nd ed, Thomson Reuters, Wellington, 2009) 1107 at 1120.
31At 1120.
32Butler “The Trust Concept, Classification and Interpretation”, above n 24, at 58−59.
33Christie v Ovington (1875) Ch D 279 at 281.
34Butler “The Trust Concept, Classification and Interpretation”, above n 24, at 59.
35See Trustee Banks Restructuring Act 1988 (now repealed) and Community Trusts Act 1999.
36For instance, Ngāi Tahu Claims Settlement Act 1998, Waikato-Tainui Raupatu Claims (Waikato River) Settlement Act 2010 and Ngāti Pāhauwera Treaty Claims Settlement Act 2012.
37Jessica Palmer “Resulting Trusts” in Andrew S Butler (ed) Equity and Trusts in New Zealand (2nd ed, Thomson Reuters, Wellington, 2009) 307 at 308.
38At 314. It can be difficult to distinguish between different types of resulting and constructive trusts, and commentators differ in their views as to whether different situations that are said to fall into these categories actually qualify as trusts. See also Prest v Petrodel Ltd [2013] UKSC 34.
39Noel C Kelly, Chris Kelly and Greg Kelly Garrow and Kelly Law of Trusts and Trustees (6th ed, LexisNexis, Wellington, 2005) at [15.1.2].
40Fortex Group Ltd (in rec & liq) v MacIntosh [1998] 3 NZLR 171 (CA) at 172−173.
41Te Ture Whenua Maori Act 1993, s 235. Additionally some of the text in this chapter is based on information provided by the Māori Land Court in its submission on the Fourth Issues Paper.
42Commentary on this is included in Waitangi Tribunal The Orakei Claim (Wai 9, 1987) at 5.1; Waitangi Tribunal Rekohu – A Report on Moriori and Ngāti Mutunga Claims in the Chatham Islands (Wai 64, 2001) at 9.7.2; Waitangi Tribunal Mohaka ki Ahuriri Report (Wai 201, 2004) at 6.7.6 and 12.7; Waitangi Tribunal Hauraki Report (Wai 686, 2006) vol 2 at 685, 697 and 698; and Waitangi Tribunal He Maunga Rongo – Report on the Central North Island Claims (Wai 1200, 2008) at 447 and 523.
43Te Ture Whenua Maori Act 1993, s 214.
44Te Ture Whenua Maori Act 1993, s 215. The Wellington Tenths Trust is an example of an Ahu Whenua trust set up over Māori reserved land. 
45Te Ture Whenua Maori Act 1993, s 216.
46Te Ture Whenua Maori Act 1993, s 212.
47Te Ture Whenua Maori Act 1993, s 217.
48Te Ture Whenua Maori Act 1993, s 127.
49New Zealand Government “Te Ture Whenua Maori Act Review Announced” (press release, 3 June 2012); Te Ture Whenua Maori Act 1993 Review Panel Discussion Document (March 2013).
50 Mark Bridges “Recent international trust cases that will have a material impact on the trust industry” (paper presented to Society of Trust and Estate Practitioners New Zealand Trust Conference, Auckland, March 2012).
51John Prebble “The New Zealand offshore trust regime” (2012) 2 VUWLRP 28/2012 at 1.
52Tim Hunter “NZ foreign trusts among global tax havens” (22 August 2012) <www.stuff.co.nz>. 
53Bridges, above n 50.
54Bridges, above n 50.
55Data as at 30 June 2012, provided by Inland Revenue (email from Graham Tubb (Inland Revenue) to Marion Clifford (Law Commission) regarding foreign trusts (10 July 2012)).
56Prebble, above n 51, at 1−2.
57Tax Administration Act 1994, ss 3(1), 22(2)(fb) and (m), 22(2C), 22(7)(d), 59B, 61(1B), 81(4)(mb), 143(1B), 143(IC), 147(2B) and 147B.