Author: Aimee Mitchell
Published: 7 September 2022
Pages: 21

Introduction

Trust deeds have changed significantly over the years as best practice, society and trust law and related areas of law have evolved and changed. Today one can identify a trust deed as coming from a particular “era” characterised by the way that the trust deed was drafted or the structure that was put in place.

Some features and provisions in older trust deeds have become problematic as the years have passed. For example, pre-mid 90’s trust deeds are typically more rigid than modern deeds put in place today and often have limited, if any, powers of amendment and powers to add and remove beneficiaries. They may form part of a mirror trust structure (common Estate Duty planning at the time) and often exclude the settlor from direct or indirect benefit.
Trust deeds put in place in the early 2000’s typically have very wide classes of discretionary beneficiaries from the outset which is not the usual practice today, in the age of disclosure and ever-increasing AML/CFT requirements.

The Trusts Act 2019 (TA2019) was a significant reform to trust law in New Zealand. Whilst the purpose of the reform and the TA2019 was not to completely re-write the rules on trusts, it did result in a number of changes, new terminology and new procedures.
This paper examines why you may want to vary a trust deed, how you go about it and issues that may arise in that process.
 

Content outline

• Variation of trusts
• Why you may want to vary
• How to vary
• Variation by trustees under the TA2019
• Variation by trustees with the approval of the court