Chapter 6
Trustees’ powers

Application to existing trusts

6.42The recommendations in R7 and R8 relating to administrative powers and the powers of maintenance and advancement should apply to all new trusts from the date of enactment and to all trusts established before that date two years after the date of enactment. The two year transition period is to allow trust deeds to be varied in order to update the provision of powers to trustees. The alteration to the default position means that all trustees will have the powers of a natural person except where this is modified in the terms of a trust. There may be some trusts that rely on the more restrictive powers of trustees in the current Act and there ought to be opportunity for the terms of trust to be varied where it is considered that trustees’ powers should continue to be restricted.

6.43The remaining recommendations should apply to all trusts from the date of enactment. We considered whether a different approach should apply to the change to the age of majority (R9) as it may alter the age at which beneficiaries in some trusts receive trust property if they rely on a reference to the “age of majority”. We have come to the view that the principled approach is that if reference is made to the age of majority and that age is changed, the new age should apply, as this best meets the settlor’s express intention in choosing that wording in the terms of the trust. The provisions on the powers to appoint agents (R10), nominees and custodians (R11), and delegates (R12) can apply to all trusts but would not apply to arrangements that are already in place, for instance agents, nominees, custodians or delegates currently exercising these roles.

6.44The standard of care (R13) can apply to all trusts from the date of enactment as it represents the existing legal position. It will not alter trustees’ obligations.