Page 43
Authorised by the Parliamentary Counsel
[s 39]
Trusts Bill 2025
Part 3 Appointment, discharge and removal of trustees and devolution of trusts
(2) However, it is not necessary for the public trustee to notify,
register or record the vesting of the trust property under
section 35, as applied by subsection (1), if—
(a) the public trustee does not act in relation to the trust; or
(b) the only action taken by the public trustee is the
appointment of a new trustee.
(3) The trust property remains vested in the public trustee until it
is divested from the public trustee under section 40 or 41.
39 Powers etc. of public trustee
(1) While the trust property is vested in the public trustee under
section 38, the public trustee has all the powers, authorities
and discretions of, and may in all matters act as, a person who
had originally been appointed as a trustee of the trust property
under the trust instrument.
(2) However, unless the court, in special circumstances, otherwise
directs, the public trustee is not required to exercise any of the
powers, authorities or discretions or act in the administration
of the trust.
(3) This section does not limit any power of the public trustee
under the Public Trustee Act 1978, section 61 or 62.
40 Vesting of trust property in new trustee
(1) This section applies if—
(a) a new trustee is appointed to replace the last continuing
trustee; and
(b) for an appointment made other than by the public
trustee—the new trustee gives the public trustee written
notice of the appointment.
(2) The trust property—
(a) is divested from the public trustee; and
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
Page 44
Authorised by the Parliamentary Counsel
[s 41]
Trusts Bill 2025
Part 3 Appointment, discharge and removal of trustees and devolution of trusts
(b) devolves to and vests in the new trustee in the same way,
and subject to the same provisions, as trust property
vests in a post-change trustee under division 5.
41 Vesting of trust property in holder of grant
(1) This section applies if—
(a) a new trustee has not been appointed to replace the last
continuing trustee; and
(b) a grant of probate of the will, or letters of administration
of the estate, of the last continuing trustee is made to a
person, other than the public trustee; and
(c) the holder of the grant gives the public trustee written
notice of—
(i) the making of the grant; and
(ii) the holder’s intention to assume the trust of the
trust property.
(2) The trust property—
(a) is divested from the public trustee; and
(b) devolves to and vests in the holder of the grant in the
same way, and subject to the same provisions, as trust
property vests in a post-change trustee under division 5.
42 Powers etc. of holder of grant
If the trust property vests in the holder of a grant under section
41, the holder—
(a) is taken to be a person appointed as a new trustee by an
appointor for the trust; and
(b) has all the powers, authorities and discretions of, and
may in all matters act as, a person who had originally
been appointed as a trustee of the trust property under
the trust instrument.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
Page 45
Authorised by the Parliamentary Counsel
[s 43]
Trusts Bill 2025
Part 3 Appointment, discharge and removal of trustees and devolution of trusts
43 Liability of public trustee
(1) This section applies if, before the trust property is divested
from the public trustee under section 40 or 41, the public
trustee—
(a) is liable for any action taken by the public trustee in
relation to the trust; and
(b) is entitled to be indemnified out of the trust property for
the liability.
(2) On the divesting of the trust property from the public trustee
under section 40 or 41—
(a) the public trustee’s liability ends; and
(b) a person who would, apart from paragraph (a), have had
a remedy against the public trustee is taken to have the
same remedy against the person in whom the trust
property vests under section 40 or 41.
Division 8 Disclaimer of trusts of wills and
related matters
44 Disclaimer of trust of will on renunciation of probate or
failure to apply
(1) This section applies if—
(a) a person is appointed as both executor and trustee of a
will; and
(b) the person—
(i) renounces probate of the will; or
(ii) fails to apply for probate of the will after being
properly cited or summoned to apply.
(2) The person’s renunciation or failure is taken to be a disclaimer
by the person of the trust of the will.
(3) To remove any doubt, it is declared that subsection (2) does
not affect any express trust established under the will.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
Page 46
Authorised by the Parliamentary Counsel
[s 45]
Trusts Bill 2025
Part 4 Custodian trustees
45 When grantee under letters of administration is taken to
be trustee of will
(1) This section applies if—
(a) a person is appointed as both executor and trustee of a
will; and
(b) the person—
(i) renounces probate of the will; or
(ii) fails to apply for probate of the will after being
properly cited or summoned to apply; or
(iii) dies before probate of the will is granted to the
person; and
(c) letters of administration with the will are granted to
another person (the grantee).
(2) The grantee is taken to have been appointed trustee of the will
instead of the person.
Part 4 Custodian trustees
46 Meaning of managing trustee
If a custodian trustee of trust property is appointed, each
trustee of the trust, other than the custodian trustee, is a
managing trustee of the trust.
47 Appointment of custodian trustee
(1) A corporation may be appointed, in a way provided under
subsection (2), as the custodian trustee of trust property.
(2) The appointment may be made by—
(a) the trust instrument; or
(b) if there is an appointor for the trust—the appointor, by
instrument; or
(c) the trustees of the trust, by instrument; or
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Page 47
Authorised by the Parliamentary Counsel
[s 48]
Trusts Bill 2025
Part 4 Custodian trustees
(d) the court, by order.
(3) Subsection (2)(b) and (c) applies subject to a contrary
intention in the trust instrument.
48 Vesting of trust property in custodian trustee
(1) On the appointment of a custodian trustee of trust property,
the trust property vests in the custodian trustee as if the
custodian trustee were the sole trustee.
(2) The instrument of appointment of a custodian trustee—
(a) is taken to be a conveyance of the trust property from the
managing trustees to the custodian trustee; but
(b) does not have effect as a breach of covenant or
condition, or give rise to the forfeiture, of any lease or
agreement for lease or other property.
(3) Section 34(2) applies to the divesting and vesting of the trust
property under this section as if—
(a) the reference in section 34(2)(b) to the instrument of
change were a reference to the instrument of
appointment of the custodian trustee; and
(b) the reference in section 34(2)(b)(i) to the post-change
trustee were a reference to the custodian trustee.
(4) The court may, on application, make vesting orders to give
effect to subsection (1).
Note—
See section 163 in relation to the persons who may apply to the court
for particular orders.
(5) Subsection (1) applies subject to an express contrary intention
in the trust instrument.
(6) In this section—
instrument of appointment, of a custodian trustee, means the
trust instrument, other instrument or court order by which the
custodian trustee is appointed.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
Page 48
Authorised by the Parliamentary Counsel
[s 49]
Trusts Bill 2025
Part 4 Custodian trustees
49 Trust powers, authorities and discretions of managing
trustees not affected
(1) This section applies if trust property vests in a custodian
trustee under section 48.
(2) The exercise of all powers, authorities and discretions
exercisable by trustees under the trust, including the
management of the trust property, remains vested in the
managing trustees of the trust as fully and effectively as if
there were no custodian trustee.
(3) Without limiting subsection (2), the custodian trustee does not
have the power to appoint a new trustee of the trust.
Note—
See, however, section 163(3) in relation to a custodian trustee’s power
to apply to the court for an order appointing a new trustee of the trust.
(4) This section applies subject to an express contrary intention in
the trust instrument.
50 Function of custodian trustee
(1) A custodian trustee’s function is to do the following, as the
managing trustees, by instrument, direct—
(a) get in and hold the trust property;
(b) invest the trust property;
(c) dispose of the trust property.
(2) For performing the custodian trustee’s function under
subsection (1), the custodian trustee must perform all acts and
execute all documents as the managing trustees, by
instrument, direct.
(3) This section applies subject to an express contrary intention in
the trust instrument.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Page 49
Authorised by the Parliamentary Counsel
[s 51]
Trusts Bill 2025
Part 4 Custodian trustees
51 Protection from liability for custodian trustee
(1) A custodian trustee is not personally liable for an act done, or
an omission made, under a direction of the managing trustees
mentioned in section 50(1) or (2).
(2) Also, a custodian trustee is not personally liable for an act
done, or an omission made, by any of the managing trustees.
(3) This section applies subject to an express contrary intention in
the trust instrument.
52 Liability of managing trustees for acts and omissions of
custodian trustee
(1) This section applies if a custodian trustee does an act, or
makes an omission, under a direction of the managing trustees
mentioned in section 50(1) or (2).
(2) The managing trustees are liable for the act done, or the
omission made, as if it were the managing trustees’ own act or
omission.
(3) This section applies subject to an express contrary intention in
the trust instrument.
53 Application by custodian trustee for directions
(1) A custodian trustee may apply to the court for directions if the
custodian trustee believes a direction of the managing trustees
mentioned in section 50(1) or (2)—
(a) conflicts with the trust instrument or the law; or
(b) exposes, or would expose, the custodian trustee to a
personal liability; or
(c) is otherwise objectionable.
(2) The court may, on an application under subsection (1), make
the orders and give the directions the court considers
appropriate, including an order about the costs of the
application.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
Page 50
Authorised by the Parliamentary Counsel
[s 54]
Trusts Bill 2025
Part 4 Custodian trustees
(3) An order made under subsection (2) giving directions binds
the custodian trustee and the managing trustees.
54 Proceedings to be in name of custodian trustee
(1) A proceeding in relation to trust property that is vested in a
custodian trustee must be brought or defended, in the name of
the custodian trustee, as the managing trustees, by instrument,
direct.
(2) If a custodian trustee brings or defends a proceeding under a
direction of the managing trustees mentioned in subsection
(1)—
(a) the custodian trustee is not personally liable for the costs
of bringing or defending the proceeding; but
(b) the managing trustees are personally liable for the costs
of bringing or defending the proceeding, as if it had
been brought or defended by the managing trustees.
(3) This section applies subject to an express contrary intention in
the trust instrument.
55 Persons dealing with custodian trustee
A person dealing with a custodian trustee—
(a) is not required to inquire about—
(i) any direction of the managing trustees about the
dealing; or
(ii) whether the managing trustees have agreed to the
dealing; and
(b) is not affected by notice of the fact the managing
trustees have not agreed to the dealing.
56 Ending custodian trusteeship
(1) The following persons may apply to the court to end a
custodian trusteeship—
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
Page 51
Authorised by the Parliamentary Counsel
[s 57]
Trusts Bill 2025
Part 5 Trustees’ duties
(a) the custodian trustee;
(b) a managing trustee of the trust;
(c) a beneficiary of the trust.
(2) The court may order the ending of the custodian trusteeship if
satisfied that—
(a) it is the general wish of the beneficiaries of the trust; or
(b) it is expedient to end the custodian trusteeship on other
grounds.
(3) The court may, to give effect to the ending of the custodian
trusteeship—
(a) give the directions it considers appropriate; and
(b) make the vesting orders it considers necessary.
57 Right to indemnity not affected
Nothing in this part limits the right of the managing trustees of
a trust, or of a custodian trustee of trust property, to be
indemnified out of the trust property in relation to liabilities
incurred in the proper administration of the trust.
Part 5 Trustees’ duties
Division 1 Preliminary
58 Application of part
This part does not limit any other duty to which a trustee is
subject, whether under this Act or otherwise.
59 Definitions for part
In this part—
professional trustee means—
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Page 52
Authorised by the Parliamentary Counsel
[s 60]
Trusts Bill 2025
Part 5 Trustees’ duties
(a) a trustee whose profession, business or employment is,
or includes, acting as a trustee; or
(b) a custodian trustee whose profession, business or
employment is, or includes, acting as a custodian
trustee.
trustee includes a custodian trustee.
Division 2 General duty to exercise care,
diligence and skill in administering
trusts
60 Duty of professional trustees
(1) This section applies to a trustee if the trustee is a professional
trustee.
(2) The trustee has a duty, in administering a trust, to exercise the
care, diligence and skill that a prudent person engaged in the
trustee’s profession, business or employment would exercise
in managing the affairs of other persons.
61 Duty of particular non-professional trustees
(1) This section applies to a trustee if—
(a) the trustee is not a professional trustee; but
(b) the trustee has, or holds themself out as having, special
knowledge or experience relevant to administering trusts
or trusts of a particular type.
(2) The trustee has a duty, in administering a trust or a trust of the
particular type, to exercise the care, diligence and skill that a
prudent person having that special knowledge or experience
would exercise in managing the affairs of other persons.
62 Duty of other trustees
(1) This section applies to a trustee if—
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Page 53
Authorised by the Parliamentary Counsel
[s 63]
Trusts Bill 2025
Part 5 Trustees’ duties
(a) the trustee is not a professional trustee; and
(b) section 61 does not apply to the trustee.
(2) The trustee has a duty, in administering a trust, to exercise the
care, diligence and skill that a prudent person of business
would exercise in managing the affairs of other persons.
Division 3 Duty to act honestly and in good
faith
63 Duty to act honestly and in good faith
A trustee has a duty, in administering a trust, to act honestly
and in good faith—
(a) if the trust is a charitable trust—to further the purposes
of the trust; or
(b) otherwise—for the benefit of the beneficiaries of the
trust.
Division 4 Duties relating to accounts and
other records
64 Duty to keep accounts and other records
(1) A trustee has a duty, in administering a trust, to—
(a) keep accurate accounts and records for the trust; and
(b) keep the accounts and records for at least 3 years after
the termination of the trust.
(2) If a person is the trustee of more than 1 trust, the person must
keep separate accounts and records for each trust.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
Page 54
Authorised by the Parliamentary Counsel
[s 65]
Trusts Bill 2025
Part 6 Investments
65 Duty to make accounts available for inspection and to
provide copies
(1) A trustee has a duty, in administering a trust, to do the
following on request by a beneficiary of the trust—
(a) to make the accounts for the trust available for
inspection by the beneficiary within a reasonable period
after the request is made;
(b) to provide copies of the accounts for the trust to the
beneficiary, within a reasonable period after the request
is made, on payment of the reasonable costs of
providing the copies.
(2) However, subsection (1) does not apply if the request is
unreasonable in the circumstances.
Example of a request to provide copies of accounts that may be
unreasonable in the circumstances—
a request by a beneficiary who has been provided with copies of the
accounts to be provided with updated copies of the accounts at very
short intervals
(3) Subsection (1) does not limit any right of a beneficiary—
(a) to obtain other information from the trustee; or
(b) to apply to the court for an order that the trustee provide
other information.
(4) In this section—
beneficiary, of a trust, includes a person in whose favour a
power to distribute the trust property may be exercised.
Part 6 Investments
Division 1 Preliminary
66 Definitions for part
In this part—
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29