One of an executor’s duties is to obtain probate. But what is probate and how does it work?

Probate is the process by which a Court officially recognises a deceased person’s will and the executors of that will.

Probate is required to ensure that:

  • The will being relied on is actually the last valid will created by the deceased;
  • Those applying for probate are the executors named in the will; and
  • The executors will carry out the deceased’s wishes in line with the law.

Once the High Court grants probate, the executors are legally authorised to deal with the deceased’s property.

Is probate required?

Probate is required for an executor to deal with any asset which exceeds $15,000. If the deceased person did not have any assets in excess of $15,000, the executors do not need to apply for probate. If you are not sure whether an estate is in that category, we are happy to discuss this with you.

If the person died without a will, they are referred to as dying “intestate”. A different process, called seeking letters of administration, is required in that situation.

Have you got the right will?

  • The first step is to locate the deceased’s last will. A will is often held by the deceased’s lawyer or another entity like the Public Trust.
  • If you suspect that there is a will but cannot locate it, it is possible to ‘advertise’ for a will. This alerts lawyers and similar entities who will then check their records to see if they hold the will.
  • There are various legal requirements for making a valid will, including that it be in writing, signed by the will-maker and signed by two or more witnesses.
  • There is a process by which the Court can validate a document that does not meet the legal requirements but nevertheless sets out the deceased’s testamentary intentions.
  • A probate application generally requires the original will. However, there are some exceptions to this if the original will has been lost or destroyed.
  • You must also be confident that the deceased had sufficient mental capacity to make the will.
  • If you think any of these situations may apply in your situation, please contact us so we can help you work through your options.

Making the application

Once you have the correct will, one or more of the executors named in that will can apply for probate.

You will need to make an affidavit (a statement sworn before a lawyer, registrar or JP) which:

Contains evidence that the will-maker has died (such as a death certificate or an affidavit from someone who went to the funeral);

Contains evidence of where the deceased was living just before they died; and

States that the will is the deceased’s last will.

You may need to file an affidavit that deals with the physical condition of the will, for example if the will has a mark, is crumpled, or has staple holes. The Court will be concerned that the document has been tampered with or previously had something else attached to it. The lawyer who looked after the will can swear an affidavit about the original condition of the will.

Other evidence may be required in some situations, such as where the will-maker had a visual impairment or a shaky signature.

Time frames

Once all the necessary documents have been filed, the High Court will review them. The Court aims to process a standard application within 6-8 weeks, but this may take longer if the Court is busy or the application is complex.

If the Court has any concerns about the application, it may ask for further information or an amended application. This will impact the time it takes to receive probate.

Receiving the grant of probate

Once you have obtained probate, you can proceed to gather in the estate’s assets and act out the will’s directions. For more information about the duties of an executor, see this article.

The grant of probate is important for starting off the timeframe for potential claimants to bring various claims against the estate, such as those under the Family Protection Act or the Property (Relationships) Act, testamentary promises claims and claims by creditors.

We have assisted many people obtain probate and to manage their responsibilities as executors and are happy to talk with you about how we could help you.


This article is general in nature and is not a substitute for legal advice. You should talk to a lawyer about your specific situation. Reproduction is permitted with prior approval and credit being given back to the source. 


We often get asked by trustees if they can just delegate their powers to someone else who will step into their shoes.  The basic principle is no, because the role of being a trustee is personal to an individual.  This means that generally a trustee cannot delegate their duties or powers to others. There are very few exceptions to this well-established rule, and we want to talk about one of the key ones in this article.  

Permitted delegation under section 70 of the Trusts Act 2019

Under section 70 of the Trusts Act 2019, a trustee may delegate any or all of their powers and functions under the trust to a qualified person by way of power of attorney.  This section applies to both charitable trusts and private trusts.

However, under section 70(2) this power to delegate can only be exercised in the circumstances are necessary because the trustee is:

  1. absent from New Zealand; or
  2. temporarily unable to be contacted; or
  3. temporarily physically incapacitated; or
  4. temporarily does not have capacity to perform the functions of a trustee.

The period of delegation begins when the section 70(2) circumstance occurs, and continues for the shorter of:

  • the duration of the section 70(2) circumstances; and
  • 12 months.

If the delegation has been in place for 12 months and the section 70(2) circumstances continue, the delegation may be extended by the delegating trustee (or the trustee’s delegate where subsection 70(2)(d) applies) for the shorter of:

  • the remaining duration of the section 70(2) circumstances; and
  • a further 12 months.

In this situation the person who is delegated the trustee’s powers can exercise all of their duties and powers, including the power to resign.

Delegation by way of power of attorney must be executed as a deed. A trustee may delegate their powers to a sole co-trustee only where that sole co-trustee is a body corporate that is authorised under the Trusts Act 2019 to act as executor or administrator of a deceased person’s estate and includes a trustee corporation. This means a trustee could not delegate their powers to a sole co-trustee who is a natural person.

These limits reflect the fact that trustees cannot delegate their duties or powers, except where absolutely necessary in the circumstances. A power of attorney cannot be used to delegate or hand over the duties of the trustee to another, but may only be used in very particular circumstances and for a limited period.


Trustees cannot delegate their duties or powers, except where absolutely necessary in the circumstances as set out in section 70. We have helped many trusts over the years and would be happy to discuss your situation with you. You can contact us any time by email or phone.

This article is not a substitute for legal advice and you should consult your lawyer about your specific situation. Please feel free to contact Steven Moe –, or Michael Belay – at Parry Field Lawyers.

Further helpful resources

Charities and the New Trusts Act 2019: Any Impact?

Update on Trusts 2020




Trustees frequently ask us whether they would be personally liable if someone is injured on a course run by a trust where they are a trustee. For example, imagine a youth focussed trust and they employ Jane, she takes a group of children on a hiking trip. During this a child is injured in an accident. Could the parents of the child make a claim against the trust or even the trustees personally? Let’s look at what could happen in New Zealand.

The role of ACC

The accident to the child would most likely be covered by the Accident and Compensation Act 2001 as a personal injury. This means that the parents would be prohibited from bringing independent proceedings against the trust and the trustees. Therefore, trustees are protected from third party claims relating to accidental personal injury where ACC would cover the accident. For more on this see ACC’s guidance here. This would not be the case in other countries where a claim might be possible.

What about WorkSafe?

Trustees may have proceeding brought against them by WorkSafe New Zealand if they find that the trustees breached the Health and Safety at Work Act 2015. This is because the trustees are ultimately in control. WorkSafe may pursue action against trustees if they find the trust failed to ensure, so far as was reasonably practicable, the health and safety of workers and others, such as those attending courses they organise. For example, in 2017, WorkSafe accepted an enforceable undertaking from a Trust Board following its investigation into an accident in which students were injured during a school production. The accident occurred during Saint Kentigern School’s performance of Sweeney Todd when two students were hospitalized after their necks were slit with a sharp shaving razor which was wrapped in duct tape. Despite the numerous incidents there was a failure to report and investigate these incidents. WorkSafe launched an investigation into the incident and concluded that the school failed in its duty to students and the school Trust Board accepted these findings.


Trustees may be liable if they are found to have breached their duties to ensure the health and safety of those they are responsible for. For more on these issues and the Health and Safety at Work Act 2015, as it applied to PCBU’s (a person conducting a business or undertaking) see our article here. Ultimately it may be wise for trusts to get a specialist Health and Safety advisor to provide guidance in this area.

This article is not a substitute for legal advice and you should contact your lawyer about your specific situation. We would be happy to assist you, please feel free to contact Steven Moe

The New Trusts Act 2019 has implications for all trustees and their obligations whether private trusts or charitable trusts. In this article we discuss the impacts it will have on charitable trusts. The Act came into force on the 30 January 2021 so trustees need to understand the changes now in place.

What are key changes to duties?

The Trusts Act 2019 imposes some key changes to the duties of trustees. These duties are set out in Sections 21 to 38 of the Act and are separated into 5 mandatory duties and 10 default duties. Mandatory duties cannot be modified or excluded by the terms of the trust. However the default duties can be modified.

Trustees should become familiar with the duties imposed on them by the new rules. The mandatory duties to be performed by the trustee include that trustees must: know the terms of the trust; act in accordance with the terms of the trust; act honestly and in good faith; act for the benefit of the beneficiaries or to further the purpose of the trust and exercise their powers for a proper purpose. The latter is very important for charities as a trustees duty should always be performed in the light of bringing about the charitable purpose of the charitable trust.

The default duties, that may be excluded or modified by the trust deed, are that trustees must: exercise reasonable skill and care; invest prudently; not exercise trustee powers for their own benefit; consider their exercise of power; not bind trustees to a future exercise of discretion; avoid conflicts of interest; act impartially; not profit from their position; not act for reward; act unanimously. If a trust deed is not clear on these duties then trustees could consider modifying their rules. For example, it may be appropriate to be clear that decisions do not need to be unanimous. In our view some of these duties are expressed with private family trusts in mind so modifying for a charitable trust context will often be important to do.

The new Trusts Act 2019 also sets out a list of ‘core documents’ the trustees must keep. These include:

  • The trust deed and any other document that contains terms of the trust
  • Any variations to the trust deed or the trust
  • Records of the trust property that identify assets, liabilities, income and expenses
  • Any records of trustee decisions
  • Any written contracts entered into during the trusteeship
  • Any accounting records and financial statements
  • Documents of appointment, removal and discharge of trustees
  • Any letter or memorandum of wishes from the settlor
  • Any other documents necessary for the administration of the trust
  • Any documents referred to above that were kept by a former trustee during their trusteeship

While all trustees must have a copy of the trust deeds and its variations, the core documents may be held by one trustee on behalf of all of them. The documents should be made available to the other trustees upon request.

How else will this impact on Trustees of Charitable Trusts?

The Trusts Act applies to Charitable Trusts and in turn its trustees are bound by the mandatory and default duties set out in the Act. This will impact trustees of charitable trusts as it imposes more onerous duties on trustees, increases their responsibilities, while also providing more guidance as to their obligations. The one duty that will not impact trustees of Charitable Trusts is provided for by Sections 51 to 55 of the Trusts Act 2019. This is the duty of trustees to disclose information to the beneficiaries which does not apply to Charitable Trusts or its trustees.

Is this an opportunity?

Maybe the glass is half full here. This is an opportunity for trustees to revisit the terms of their trust deed to determine what duties must be complied with and what duties may be excluded or modified. For example, the decision making duty should be varied to ensure decisions made by the charitable trust can be decided by a majority. The trustees should make sure they hold all the core documents required by the Act.

Other resources?

The following resources may help!

  • See the new Trusts Act 2019 here
  • To see a Charities Services Guidance on what the new Trusts Act means for registered charities click here
  • Hui E website has good resources here
  • Here is an article we did on liability of Trustees
  • An article on governance for faith based organisations
  • An article we did on governance for trustees here
  • We also did an article on the reporting obligations of charities click here

This article is not a substitute for legal advice and you should contact your lawyer about your specific situation. We would be happy to assist in your journey. Please feel free to contact Steven

The Trusts Act 2019 was passed on 30 July 2019 and replaces the Trustee Act 1956. It comes into effect on 30 January 2021.

The 2019 Act modernizes existing trust law, provides better guidance for trustees and beneficiaries, and makes it easier to resolve disputes.

So what are the key changes?

1. A description of the key features of a trust to help people understand their rights and obligations.

That includes:

  • Defining a trust as: a structure where a trustee holds and deals with trust property for the benefit of people who are described as beneficiaries for a permitted purpose and the trustees are required to act in the best interests of the beneficiaries;
  • Stating that a sole trustee cannot be a sole beneficiary of a trust;
  • Increasing the maximum life of a trust from 80 years to 125 years;
  • Setting the minimum age you have to be in order to hold a formal trust role as 18 years of age.

2. A list of mandatory and default trustee duties to help trustees understand their obligations.

Mandatory duties

Mandatory trustee duties cannot be modified or excluded by the terms of a trust and include:

  •  The duty to know the terms of a trust;
  •  The duty to act in accordance with the terms of a trust;
  •      The duty to act honestly and in good faith;
  •       The duty to act for the benefit of beneficiaries or to further the permitted purpose of a trust;
  •  The duty to exercise powers for a proper purpose;

Default duties

Default trustee duties can be modified or excluded by the terms of a trust and these duties include:

  •  The general duty of care;
  •  The duty to invest prudently;
  •      The duty not to exercise a power for a trustee’s own benefit;
  •      The duty to consider the exercise of a power;
  •      The duty not to bind or commit trustees to future exercise of discretion;
  •      The duty to avoid a conflict of interest;
  •       The duty of impartiality;
  •       The duty not to profit;
  •      The duty of a trustee to act for no reward;
  •      The duty to act unanimously.

3. Requirements for managing trust information and disclosing it to beneficiaries.

Information for Trustees to Keep

The Act sets out what information trustees must keep and how long documents must be kept.

Each trustee must keep the core trust documents which are:

  •  Copies of the trust deed and any variations to it;
  •      Records of the trust property that identify the assets, liabilities, income and expenses of the trust;
  •  Records of decisions made;
  •      Any written contracts entered into;
  •      Any accounting records and financial statements prepared;
  •      Documents of appointment, removal and discharge of trustees;
  •      Any letter or memorandum of wishes from the Settlor of the Trust.

The trust documents need to be kept for the duration of the trusteeship and must be passed on when a trusteeship changes.

Trustees will have to either keep their own copies of ‘core trust documents’ or ensure that at least one of the other trustees holds all of the core trust documents and will make them available on request. If a trustee is not confident in their fellow trustees’ ability with paperwork, they will need to keep these documents personally.


The Act favours keeping beneficiaries informed and clearly outlines that basic trust information is to be provided to every qualifying beneficiary. The basic information is:

  •  The fact that a person is a beneficiary of a trust;
  •      The name and contact details of the trustee;
  •       Details of changes in trustees;
  •      The right of the beneficiary to request a copy of the terms of the trust or trust information.

In addition to the basic information, there is a presumption that a trustee must, within a reasonable period of time, give a beneficiary or their representative the trust information that person has requested, unless there is a good reason to decline such a request. The Act outlines a number of factors trustees have to take into account in deciding whether it is reasonable to decline an information request.

Trustees may only refuse to provide information to beneficiaries after considering a series of factors set out in the legislation and the trustees must consider these factors when deciding whether these apply in the circumstances, including:

  •  The nature and interests of the beneficiary (including whether the beneficiary is likely to receive trust property in the future);
  •      The nature and interests of other beneficiaries;
  •      The intentions of the settlor when the trust was established;
  •      The age and circumstances of the beneficiary in question and the other beneficiaries of the trust;
  •      The effect of giving the beneficiary the information;
  •      The nature and context of any request for further information;
  •      Any other factor a trustee reasonably considers is relevant. Trustees will have to carefully consider any decision not to disclose information.

More Key Changes: 

4. Practical and flexible trustee powers, allowing trustees to manage and invest trust property in the most appropriate way;

5. Provisions to support cost-effective establishment and administration of trusts (such as clear rules on the variation and termination of trusts);

6. Options for removing and appointing trustees without having to go to Court to do so;

7. Modern dispute resolution procedures. In the interest of keeping trust related disputes out of Court where possible, the Act provides for alternatives such mediation or arbitration.

This article is not a substitute for legal advice and you should contact your lawyer about your specific situation. We would be happy to assist in your journey. Please feel free to contact Pat Rotherham at or Luke Hayward at should you require assistance.


Are you considering joining your first board and not sure where to begin or what you should be thinking about? Below are some key points to be considering (these reflections are a summary that came from an hour long discussion with a group of experienced board members Steven Moe helped facilitate recently – so is the collective wisdom of about 15 people):

  • Be clear on your motivation – if it’s about kudos or prestige then it is unlikely to result in being effective or be sustainable. One way to test your motivation is (for non profit boards) to consider whether or not you would actually give them money if they asked for that? If not, well…
  • Expectations are critical – so clarify what is expected of you (the number of meetings, number of committees, other work contributions) – it is not understanding what is expected of you that usually leads to issues.
  • People are key – talk with the CEO, meet with the other board members, get to know them first before committing.
  • Undertake due diligence – do at least some basic checking and ask to see the finances, understand why the last person left, ask questions about future strategy. If it is appropriate, ask to attend a board meeting just to see how they operate before agreeing to join – and pay particular attention to ‘board only time’ to see what is discussed and the style and approach of the chair.
  • Ask for an induction – make it an expectation that you will receive an induction to learn about the history, ways of decision making, explanation of future etc. Having a manual for new board members can be good too.
  • Mentors – Value and seek out mentors who can give you advice as you start a governance role.
  • Ask questions – don’t be afraid to ask things before you join, in fact that is often what a board is looking for in a new appointee because it shows the style and approach the person brings.
  • Culture rules – make sure you find out about the culture of the board and as part of that learn how the CEO relates to the Board.
  • Resources – Some good resources can be found at Sport New Zealand here as well as IOD resources here and BOMA directors programme courses here. For more information on governance, you can also check out our article “Good Governance” here.

Having posted the points above on Linked In there were a lot of comments added with some insights from others, such as:

  • Dorenda Britten: Listen
  • Sue McCabe: Make sure you are up for what can go wrong – not just business as usual governance – and realise the seriousness of the accountability you take on. My first governance role was for the childcare provider my kids were at. I wanted to ‘give back’ and get experience. We found out that the crèche building had friable, leaking asbestos (so had to consider whether we’d breached health and safety law), needed to manage understandable health worries from staff and parents (no risk in the end), then it led to the centre’s closure and we had to lay off the most wonderful staff and wind up the business. Thankfully the Board was strong and competently led by the Chair Kelvin Wong, so the issues were worked through as well as they could be. Good question Steven Moe – I look forward to more answers.
  • Camille Wrightson: Particularly as a young woman- you might be surprised what you can contribute! Don’t assume everyone in the room is necessarily smarter than you or that they’ve thought of everything.
  • Hannah McKnight: Make sure you truly have the time to commit to a Board role without spreading yourself too thin at mahi, at home, and with other commitments you value. Wellbeing comes first and while an amazing opportunity, you need to ensure you can give your full self to a Board. This is why I’m yet to go ahead with a formal Board position. Timing is everything.
  • Andrew Phillips: Read your rules document / deed very carefully or maybe advise myself of the outcome of the Cricket World Cup this year, a boundary count victory has got to pay out reasonably.
  • Barry Baker: Really good question , research the chair and their back ground. Meet with them and get a feel for them. The chair (and CEO relationship ) is a good indicator of how the board and org operate.
  • Dorenda Britten: Read your briefing/ board papers, learn all you can about the organisation concerned – its history, threats and the context for future opportunities. Listen and observe the characteristics of the existing board members and the leadership team. Figure out how best to use the skills you have been hired to contribute.
  • Phil Johnson: Temper your enthusiasm to “get involved” with your responsibility to govern. Mistake I made in my first role was to assume that operational involvement was an inherent element of governance.

We hope that these tips will be of use to you as you start on the journey of joining a board.  Please feel free to contact Steven Moe at or 021 761 292 should you require assistance – we have a lot of free resources for start-ups, boards and companies including “Start-ups Legal Toolkit” which covers the key issues we see people face when starting out (it’s a free PDF guide in the resources section of this site).

Are you a beneficiary wondering what trust information you are entitled to, or a trustee concerned with what information you may be required to provide to a beneficiary?  This article considers the current New Zealand legal position on the rights that beneficiaries have to trust information, and the changes that will result from the new Trusts Act, which was passed into law this year (2019).

In the past, it has often been the case that only the trustees knew about the family trust “secret”. The new Trusts Act dramatically changes this from 30 January 2021 by developing further the current legal principles established in the following 2 cases:

Erceg v Erceg

This 2016 Supreme Court case involved the estate of Michael Erceg, a beer magnate who died in a helicopter accident. The Court said that the trustees of a trust must give beneficiaries certain basic trust documents on request to ensure that a trust is administered properly and the trustees are held accountable for their actions. Ultimately, the ability to see trust information is based on the status and motives of the beneficiary applying to the Court. In this case, the Court refused to grant Ivan Erceg’s request for trust information because his conduct toward the other beneficiaries was confrontational and “he was on a fishing expedition”. However, as a primary beneficiary of the Accorn Foundation Trust, he would otherwise have had a good case for receiving basic trust documents, comprising:

  • The trust deed;
  • Any variations to the trust deed;
  • Financial statements; and
  • Potentially minutes of meetings/resolutions, but with reasons deleted.

Addleman v Lambie Trustee Limited

In this 2019 Court of Appeal case, Mrs Addleman was both a discretionary and a final beneficiary of her father’s Lambie Trust, along with her estranged sister, whose company Lambie Trustee Limited was the Trust’s sole trustee.  Mrs Addleman only became aware of the Trust’s existence when she received 4.25 million as a “full distribution of funds” from the Trust.  Wanting to know more, she initially requested comprehensive information about the Trust from its inception 12 years earlier.

Applying the principles established in Erceg above, the Court said that as a close beneficiary of the Trust Mrs Addleman was entitled to see trust documents, albeit within a narrower category than those she initially requested, and that she should receive the following:

  • Financial Statements;
  • Minutes of meetings, but without reasons for trustee decisions; and
  • Any legal opinions and other advice obtained by the trustees which was funded by the Trust.

New Trusts Act Changes

The new Trusts Act significantly changes the rights of beneficiaries to trust information.    While trusts were once allowed to more easily remain a secret, under the new Trusts Act trustees must disclose basic information to at least one beneficiary without a request being made.  This is the Presumption of Notification.

It is important to note that there is a second presumption created by the new Trusts Act, which requires a trustee to provide additional information within a reasonable time to a beneficiary who requests it.  This is the Presumption of Disclosure.

What is “basic trust information” under the new Trusts Act?

Basic trust information is the information that tells you about the trust – what its purpose is, who the parties to the trust are, etc. It includes:

  • The fact that you are a beneficiary;
  • The names and contact details of trustees;
  • Details of each appointment, removal and retirement of a trustee as it occurs; and
  • The right to request a copy of the trust deed and additional information about the trust’s administration and its assets (but not reasons for trustees’ decisions).

However, as can be seen from the following, these two presumptions may be totally or partially ignored.  Trustees can rely on numerous factors to deny beneficiaries this basic trust information, such as:

  • The nature and interests in the trust held by both the beneficiary applying for information and the other beneficiaries of the trust;
  • Confidentiality;
  • The age and circumstances of the applicant and the other beneficiaries;
  • The effect of giving the information on all related parties;
  • The practicality of giving the information;
  • The nature and context of the request;
  • Any other factor that the trustee reasonably considers.

Differences between the current Erceg Approach and the new Trusts Act

In the Erceg case, the Court said that although a primary or close beneficiary can ask for, and expect to receive, basic trust information on request, they’re not automatically entitled to it. Disclosure will depend on the wider interests of all beneficiaries as a whole. So currently, there is no Presumption of Disclosure.

However, the Trusts Act goes further than the Erceg case and ensures that at least one beneficiary must receive basic trust information on request (Presumption of Disclosure), but also, even if none has been requested (Presumption of Notification).  This is to ensure that the trustees are kept accountable and are discharging their obligations to the beneficiaries properly.

If the trustees believe that one or more of the above factors justifies their denying such information from all beneficiaries for more than 12 months, then they must apply to the High Court for directions.  The Court then decides if the trustees’ decision is reasonable and if so, how they can otherwise be held accountable for their actions if none of the beneficiaries are advised of their status or informed of basic trust information. Applying to the Court can be avoided if such information is disclosed to at least one beneficiary.

In summary, under the New Trusts Act, as a beneficiary, you can expect to see the trust deed, names of the current trustees and some financial information unless the trustees consider otherwise under the above list of factors.

When the new Act is fully operative, be aware that the obligations of trustees, and in particular the rights of beneficiaries, are set to dramatically change, as may the dynamics of some family relationships.

Every situation is unique, so please discuss your particular case with a professional advisor who can provide a tailored solution to you.

Pat Rotherham –

Trustee Duties

The Trustees have certain duties and liabilities placed on them under the relevant Trust Deed, New Zealand Legislation and Common Law (decisions of the Courts in New Zealand and Overseas). These duties include:

– to know the trust deed, the trust assets and liabilities;
– to advance charitable purposes;
– fiduciary duties of honesty and loyalty and acting in the best interests of the trust;
– exercise care, skill and prudent diligence;
– act impartially amongst beneficiaries;
– to sell wasting property;
– to exercise reasonable care;
– to insure assets and keep property safe;
– to keep inventories;
– to invest within a reasonable time;
– to repair trust property;
– to invest prudently;
– to not delegate;
– to act jointly where there is more than one trustee;
– to not profit from trust property;
– to be accountable; and
– to be honest, loyal, diligent and prudent in carrying out the terms of the trust.

If you would like further explanation of any of these duties, please get in touch with us.

Generally a charitable trust will have between 3 to 7 trustees. Usually trustees are a mix of professional executives and non-executives. They will be held to the same standard of care in their actions as applies to directors of a business (there is not a lower standard due to it being a charitable trust).

Trustee Liability

Trustees are representatives of the Trust. As noted above when discussing duties, they act as fiduciaries who hold the trust property for the benefit of the charitable purpose set out in the deed. It is important that trustees clearly understand what those purposes are and do not overreach and act in a way that is further than what was set out in the deed. If trustees fail to perform their duties then they may be subject to proceedings taken out by interested persons. Ultimately the New Zealand Attorney General has certain rights as the ultimate power ensuring accountability. It is common for trust deeds to include some limits on trustee liability. However, as mentioned before it is possible that trustees will be jointly and severally liable where a trust fails to account for GST, ACC levies or PAYE payments.

Every situation is unique so please discuss your situation with a professional advisor who can provide tailored solutions to you. We offer advice on all aspects of charitable trusts and are happy to answer any questions that you might have. Contact Steven Moe at or 03-348-8480 for more information.

This article is the second in a series on charitable trusts. To have a look at our first article which sets out the advantages and disadvantages of charitable trusts, click here.


1. Govern don’t manage: Avoid getting into too much of the detail of how the trust operates. You shouldn’t be talking about minor issues at the Board level.
Yes! What is our strategic plan for the next 5 years?
No! Can we save $7 per month by purchasing paper in bulk?

Your rating out of 10?______

2. Have clear agendas: Don’t let meetings turn into a conversation that starts “what are we talking about again”? Have a clear defined standing agenda that then has key points added.
Yes! Circulate agenda in advance along with relevant pre-reading. Read it.
No! Show up late and try to remember what was discussed last time, with no agenda to guide the meeting (and ensure it finishes on time).

Your rating out of 10?______

3. Board Charters: This is a document that can provide overall guidance – set out role, relationships, how decisions made, procedures, inductions, committees.
Yes! Consider having a Board Charter and clearly set guidance out.
No! Continue without clear thinking and strategy behind what you are doing.

Your rating out of 10?______

4. Know your Trust purpose: It is surprising how many Trustees are unclear on the actual purpose and maybe have never even read the Trust Deed to see the original purposes.
Yes! Be clear on what the purpose is and let it guide decisions.
No! Put the Trust Deed in a drawer and not look at it for 10 years.

Your rating out of 10?______

5. Know the purpose behind the purpose: Think about and understand how the day to day and month to month work is of value – know your “why”. In many cases there are deep needs which are being met by each trust
Yes! Know your why (if you have not seen the Simon Sinek video, google it)
No! Don’t forget the real reason behind the activity and work being done.

Your rating out of 10?______

6. Plan ahead: Think long term not short term – discuss finances, properties, succession for your board, strategy, growth, is this Trust relevant …
Yes! In 5 years I think our landscape will have changed so here is what we need to do to prepare…
No! Where shall we hold our next meeting?

Your rating out of 10?______

7. Trust board size: I think optimum size is 4 to 6 Trustees. Many Trust Boards are more, but once you get above 8 the opportunity for participation drops. This results in a drop of enjoyment (less sense of contribution) and also reduces the quality of decision making because discussion is more limited.
Yes! Keep boards efficient by not growing them too large.
No! Don’t get too big – boards that have crept up above 10 are like a parliament and are also far more difficult to chair.

Your rating out of 10?______

8. Increasing need for professionalism as a Trustee: There is a growing need to create a culture of continuous improvement or learning within the Trusteeship itself. Have a view that you can never stop learning. Governance is a high calling.
Yes! Trustees ought to be encouraged to read material that takes them a bit further in their journey of understanding what it is to a Trustee and how to contribute.
No! Just wing it.

Your rating out of 10?______

9. Who should be on a Trust Board? In a small charity this may be a luxury but the ideal answer is someone who has both a strong belief in the vision and purpose of the Trust as well as a particular skill set that the Trust most needs.
Yes! Consider skill sets around tangible matters e.g. finances, property matters, operational issues but also the soft issues – the ability to think strategically, a high EQ and focus on building a great team.
No! Don’t focus on one set of skills instead aim for a diversity of thought.

Your rating out of 10?______

10. The right Chair? Good outcomes are largely the result of effective meetings and effective meetings are not possible if the Chair is not suited to the task. A good Chair creates an environment of respect, fair opportunity to speak, but without restricting candor and ensuring discussions do not go on any longer than necessary and a clear conclusion is reached. Also, if the organisation is large enough to have employed staff then the relationship between the Chair and the Chief Executive is a critical one.
Yes! Have those awkward conversations to ensure that the person most suitable to facilitate good meetings is the Chair.
No! Like all of these points, don’t continue on if change is needed.

Your rating out of 10?______

Some resources:

Simon Sinek, “The Power of Why – YouTube Video

“Joan Garry’s Guide to Non-profit Leadership (because non-profits are messy)”.

“Good to Great and the Social Sectors” – Jim Collins (speaker on commercial/corporate leadership, but has good things to say for charity leadership as well).

“Boards that Lead” – Charan, Carey and Useem.

In terms of podcasts there a number of great leaders who speak to the leadership area including Andy Stanley and Carey Nieuwhof.

Seeds is a podcast I have been doing each Tuesday interviewing people for an hour on what they do and why – often this includes people who have started or run charities


Should you need any assistance with these, or with any other Trust and Asset matters, please contact Steven Moe at  (+64 3 348 8480).

KiwiSaver is a superannuation scheme in New Zealand that is popular with many Kiwis not only for saving for retirement, but also for first home buyers saving for a deposit. But have you ever considered what happens if you pass away before you have withdrawn your KiwiSaver funds? What happens to the money in your KiwiSaver account when you die?

Where you have signed a Will, upon your death the full balance of your KiwiSaver will be paid to your estate. If the balance in your account is less than $15,000.00, it will be able to be paid automatically. If the balance is more than $15,000.00, however, probate (an order from the court allowing the distribution of your account funds) will need to be issued.

What happens if you don’t have a Will?

It is important to note that if you pass away without a Will (this is called “intestate”), the process will be more complicated and expensive. You should also be aware that without a Will, you cannot be assured that your assets will be distributed to those whom you intend. For more information on the importance of having a Will and what happens if you pass away intestate, see our article here.


Jane is in her early twenties and is saving up for a deposit for her first home. Jane currently has $16,000.00 in her KiwiSaver. She also has $12,000.00 in a savings account. She has never really considered signing a Will, and is planning to look into it once she has purchased her home and is all settled in. However, Jane is in a tragic car accident and is killed instantly. Because she passed away intestate, her assets were distributed in accordance with the Administration Act 1969. Several issues arose from Jane passing away without a Will that could have been avoided:

1. Jane had intended for her assets to be distributed to her niece upon her death. Because she had not expressly stated those wishes in a Will, her assets were instead distributed equally to her parents.

2. Secondly, because Jane’s assets exceeded the $15,000.00 threshold, her family had to apply to the court for probate. Because she had not signed a Will appointing an executor, her family also had to apply to the court for the appointment of an administrator – someone who is given authority by the court in the absence of a Will to deal with the estate. This was a costly process (both financially and time-wise) and caused a lot of stress for her family that could have been avoided if she had signed a Will.

How can we help you?

We would advise that you sign a Will if you are over 18 years old, even if you only have a few assets.

If you would like any assistance with drafting and signing a Will, reviewing your existing Will, or if you have any questions in relation the issues raised in this article, please feel free to get in touch. We have teams in our Riccarton, Rolleston and Hokitika offices that would be happy to assist you.

For more information, please feel free to contact Paul or Luke or give us a ring on 03 348 848