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Trusts Act 2019

Schedule 1: Transitional, savings, and related provisions

You could also call this:

"Special rules for when the Trusts Act 2019 started and how it affects older trusts"

Illustration for Trusts Act 2019

The Trusts Act 2019 has some special rules that apply when it started. You need to know what these rules are. The Act applies to all trusts, no matter when they were created. If a trust was created before the Act started, it will continue until the date specified in the trust, or for a maximum of 125 years.

When the Act started, some things did not change. For example, people who were agents or custodians of a trust before the Act started can still do their job. The Act also says what happens to trusts that were created before it started. If someone was an advisory trustee before the Act started, they are now a special trust adviser. The Family Court can still deal with some cases that started before the Act began.

Some rules from the old Trustee Act 1956 still apply to trusts created before the new Act started. This includes rules about how trust property is transferred when a trustee resigns or is removed. The Act also says what happens to offences that were committed before it started. These offences are still dealt with under the old Act.

There are also some special rules that apply to financial advisers and the services they provide. These rules are to help with the transition to the new Act. You can find more information about these rules in the Act itself, and in other related laws like the Financial Advisers Act 2008 and the Financial Markets Conduct Act 2013.

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View the original legislation for this page at https://legislation.govt.nz/act/public/1986/0120/latest/link.aspx?id=DLM7383135.

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184: New section 105A inserted (Regulations exempting from provisions of Trusts Act 2019), or

"The Governor-General can create rules to exempt some trusts from following parts of the Trusts Act 2019."

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Schedule 2: Provisions that apply except as modified or excluded in accordance with section 5(4), or

"Rules that apply to trusts, unless the trust says otherwise or the law allows changes"

1Transitional, savings, and related provisions Empowered by s 10

1Provisions relating to this Act as enacted

1Definitions for this Part

  1. In this Part,—

    commencement date means the date on which section 10 commences

      repealed Act means the Trustee Act 1956.

      2Application of Act to trusts created before, on, and after commencement

      1. Except as provided in this Act (and in clauses 3, 4, 5, 6(2), 8, and 11 of this schedule in particular), this Act applies to all express trusts, whether created before, on, or after the commencement date.

      3Duration of trusts created before commencement date

      1. Despite section 16,—

      2. a trust created before the commencement date continues until the date (if any) specified in the terms of the trust as being the date on which the trust property will be finally distributed; but
        1. that final distribution date may, on or after the commencement date and in accordance with section 122 or 124 or in any way permitted in the terms of the trust, be extended so that the trust has a maximum total duration of 125 years.

          1. However, if a trust created before the commencement date does not specify a final distribution date or duration but specifies or implies a mechanism for, or means of, determining the final distribution date, section 16(4) applies to that trust.

          2. A trust to which, before the commencement date, the rule against perpetuities did not apply is not affected by section 16(1) and continues indefinitely or in accordance with any enactment or common law rules governing its duration.

          4Saving of appointment of agent, nominee, or custodian

          1. A person who, in relation to a trust or any part of it, was, immediately before the commencement date, a duly appointed agent, nominee, or custodian continues in that office on and after the commencement date, subject to the terms of the appointment and the terms of the trust.

          5Saving of delegations

          1. A delegation that was in place before the commencement date continues, subject to the terms of the delegation and the terms of the trust, on and after the commencement date.

          6Transitional provision for advisory trustees

          1. A person who, immediately before the commencement date, was an advisory trustee appointed under section 49 of the repealed Act is, on and after the commencement date, taken to be a special trust adviser appointed under section 74(2) of this Act.

          2. However, section 76(2) of this Act does not require the review or redetermination of (or otherwise of itself affect) any remuneration payable to the person in accordance with a determination made under the repealed Act before the commencement date.

          3. A power created before the commencement date to appoint an advisory trustee is, on and after the commencement date, taken to be a power to appoint a special trust adviser.

          7Saving of notice of application to bar claim under section 75 of repealed Act

          1. This clause applies if, no more than 120 days before the commencement date, a trustee—

          2. has served on a person a notice under section 75(1) of the repealed Act; but
            1. has not made an application under section 75(2) of that Act.

              1. The trustee is entitled to make an application under section 135(1) of this Act as if the notice served under the repealed Act were a notice served under section 135(2) of this Act.

              8Saving of rights and proceedings under repealed Act

              1. This Act does not—

              2. enable any proceeding to be brought that was, before the commencement date, barred under the repealed Act; or
                1. affect the application of section 18 of the Interpretation Act 1999 in relation to the effect of the repeal of the repealed enactments.

                  9Transitional provision for offences and contravention under repealed Act

                  1. This clause applies to an offence committed under section 31(7C), 77(8), or 83B(9) of the repealed Act, or a contravention of the repealed Act, before the commencement date.

                  2. The repealed Act continues to have effect as if it had not been repealed for the purpose of—

                  3. investigating an offence or a contravention to which this clause applies:
                    1. commencing or completing a proceeding for an offence or a contravention to which this clause applies:
                      1. imposing a penalty or other remedy, or making an order, in relation to an offence or a contravention to which this clause applies.

                        10Transitional provision for jurisdiction of Family Court

                        1. Despite clause 8(b), on and after the commencement date the Family Court may exercise the jurisdiction conferred by section 141 of this Act in any proceeding commenced, but not completed, before the commencement date.

                        11Transitional provision for transfer of trust property

                        1. This clause applies if—

                        2. a trustee resigns or is removed before the commencement date; and
                          1. on the commencement date, the divesting and vesting of trust property as a result of the resignation or removal has not taken effect.

                            1. The divesting and vesting of trust property, and the satisfaction of any requirements to which the divesting and vesting are subject, must be completed as if this Act had not commenced.

                            12Saving of section 15(2) of Trustee Amendment Act 1988

                            1. Despite the repeal of the Trustee Amendment Act 1988, section 15(2) of that Act continues to apply to any instrument creating a trust that was created before the commencement date, except that the reference in paragraph (a) of that provision to “the provisions of the Trustee Act 1956 as to the investment of trust funds, as those provisions are amended by this Act” must be read as a reference to this Act.

                            13Transitional provision relating to Financial Advisers Act 2008

                            1. This clause applies if this Act comes into force under section 2(1) before the commencement of section 29 of the Financial Services Legislation Amendment Act 2019.

                            2. In Schedule 3,—

                            3. the classes of contract listed in paragraph (b) of the definition of services in clause 1(3) must be treated as including a contract for a financial product (within the meaning of section 5 of the Financial Advisers Act 2008):
                              1. references in clause 2 to a client money or property service, a provider of that service, or a wholesale client must be treated as including a broking service, a broker, or a wholesale client (as the case may be) within the meaning of section 5 of the Financial Advisers Act 2008:
                                1. the reference to the Financial Markets Conduct Act 2013 in clause 5 must be treated as including the Financial Advisers Act 2008.