Trusts Act 2019

Trustees’ duties and information obligations - Duties of trustee - Default duties

39: Adviser must alert settlor to modification or exclusion of default duty

You could also call this:

"Tell the person creating a trust if you change the trust's standard rules"

Illustration for Trusts Act 2019

If you are paid to advise on creating a trust or to prepare the terms of a trust, and you suggest changing or removing one or more default duties, you must tell the person creating the trust about the changes. You need to make sure the person creating the trust understands what the changes mean and how they will affect the trust before it is created. If you do not do this, the changes to the trust are still valid, but you must take reasonable steps to inform the person creating the trust.

If you suggest changes to the trust, you must explain them to the person creating the trust, so they know what they mean. The person creating the trust is called the initial settlor, which means they are the person who first creates the trust or causes it to be created. You must make sure the initial settlor is aware of the changes you suggest, and what they mean for the trust.

You have to inform the initial settlor about the changes to the default duties in the trust, and you have to do this before the trust is created. This is an important step to make sure the initial settlor knows what they are agreeing to when they create the trust. The default duties are part of the trust, and changing or removing them can affect how the trust works.

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Part 3Trustees’ duties and information obligations
Duties of trustee: Default duties

39Adviser must alert settlor to modification or exclusion of default duty

  1. This section applies to a person who—

  2. is paid to—
    1. advise on the creation of a trust; or
      1. prepare the terms of a trust; and
      2. recommends that the initial settlor should, or causes the initial settlor to, modify or exclude 1 or more default duties in the terms of the trust.
        1. Before the creation of the trust, a person to whom this section applies must take reasonable steps to ensure that the initial settlor is aware of the meaning and effect of the modification or exclusion.

        2. Failure to comply with subsection (2) does not of itself invalidate the modification or exclusion in the terms of the trust.

        3. In this section, initial settlor means the settlor who initially creates the trust or causes the trust to be created.