Summary of recommendations
Chapter 15 – The Public Trust
R43 The new Trusts Act should provide that:
(1) Where carrying out any of the roles it has under the new Trusts Act would involve any element of dispute or contention or significant complexity, the Public Trust should not act.
(2) The Public Trust should be accountable to the Government for the exercise of its roles under the new Trusts Act.
(3) The Public Trust could charge a reasonable fee for carrying out the roles under the new Trusts Act.
The roles recommended for the Public Trust in the Report are:
- the power to make decisions on behalf of a trustee where the trustee is temporarily unavailable and cannot be contacted for any reason and no delegation is in place (R12);
- overseeing the removal and/or replacement of a sole trustee on the ground of incapacity or similar where there is no one else with authority to do this apart from the court (R21);
- overseeing the appointment of a replacement of a sole trustee who dies while in office where there is no one with the power to appoint a new trustee under the trust deed (R22);
- overseeing the retirement and replacement of a sole trustee when there is no one else with the power to appoint a new trustee under the trust deed (R23);
- providing a vesting certificate to confirm that assets are vested in a named new trustee where a former trustee has not and cannot now transfer the trust assets (R26).
R44 The new Trusts Act should re-enact section 83B of the Trustee Act 1956, relating to an application for the accounts of trust property to be audited, in modernised form and with modification so that the process continues to rely on an application to the Public Trust, but no longer also requires an application to a judge in chambers as is currently the case.