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Can trustees of a family trust treat beneficiaries unequally?

Many family assets in New Zealand are owned by a family trust. The trustees of such trusts must comply with a wide range of duties and obligations. This article considers one of those duties, the trustee duty of impartiality, and what this duty means in practice, particularly when trustees want to distribute trust assets unequally amongst trust beneficiaries.

Most trustees have wide ranging powers to distribute trust assets amongst trust beneficiaries. Trustees may also by subject to the default duty to act impartially, imposed by s35 of the Trusts Act 2019, unless the duty has been modified by the terms of their trust deed.  However, many trust deeds contain no restrictions or guidelines for the trustees to distinguish between different beneficiaries when considering distributions of trust assets. This ensures that trusts can be flexible and meet the changing needs of beneficiaries over time but can also create real challenges for trustees in balancing competing beneficiary demands while complying with their duty of impartiality.

The general duty of impartiality imposed on trustees was not created by the Trusts Act 2019 (Trusts Act).  The duty of impartiality has been a fundamental duty of trustees for hundreds of years.  It is one of a range of general duties relevant for trustees when making decisions.  Other duties relevant to trustee decision making are the duties to consider all relevant information, exclude irrelevant information and avoid making perverse or capricious decisions.A common question from our trustee clients is whether the duty of impartiality requires, or creates a presumption, that distributions of trust assets should be made equally to all beneficiaries. Does the duty of impartiality mean that all beneficiaries of a family trust need to receive exactly the same benefits from the trust? Can trustees be impartial but still distribute trust assets unequally? What is the difference between impartiality and equality?

To answer these questions, the first thing that needs to be considered is the relevant trust deed. The general duty of impartiality can be limited and modified by the terms of a trust deed. Most trust deeds in New Zealand will include:

  1. A list of the beneficiaries of the trust;
  2. Details about whether any beneficiaries should take priority over other beneficiaries (such beneficiaries are often referred to as “primary” or “principal” beneficiaries); and
  3. Powers for the trustees to distribute the trust assets to the beneficiaries “in such proportions as the trustees in their sole, absolute and uncontrolled discretion think fit” (or similar wording).

Consequently, most trust deeds in New Zealand empower trustees to give preference to some beneficiaries (i.e. “primary” or “principal” beneficiaries) and also confirm that trustees have absolute discretion when making distribution decisions. However, these reasonably common provisions do not exclude the trustees’ duty of impartiality. The duty of impartiality imposed by the general law of trusts still needs to be considered.

The second thing to be considered is section 35 of the Trusts Act. It provides:

(1)       A trustee must act impartially in relation to the beneficiaries, and must not be unfairly partial to one beneficiary or group of beneficiaries to the detriment of the others.

(2)       This section does not require a trustee to treat all beneficiaries equally (but all beneficiaries must be treated in accordance with the terms of the trust).

This section of the Trusts Act  specifically confirms that the duty of impartiality does not mean that trustees must distribute trust assets equally to beneficiaries.

However, it can still be unclear what the duty of impartiality means in practice and trustees can still be concerned, when considering making unequal distributions to trust beneficiaries, that the unequal distribution will be a breach of their duty of impartiality.

When considering the duty of impartiality, it can be useful to distinguish between:

  1. Managing trust assets within the trust; and
  2. Distributing assets out of the trust to beneficiaries.

The duty to act impartially is clearly relevant when managing trust assets before distribution decisions are made. Trustees must actively manage the trust assets on behalf of all the trust’s beneficiaries. Individual beneficiaries have no rights to assets until the trustees exercise a discretion in their favour. Consequently, an obligation for trustees to act impartially while managing trust assets for the benefit of all beneficiaries is reasonable and appropriate.

In this context, the duty of impartiality provides useful guidance for trustees about balancing the potential interests of various beneficiaries, particularly when there are different classes of beneficiaries. For example, some trusts have beneficiaries that benefit from trust income and other beneficiaries that benefit from trust capital. In this situation, the duty of impartiality means that the trustees need to fairly and even-handedly balance the interests of both the income and the capital beneficiaries. In the case of Re Mulligan (deceased) [1998] 1 NZLR 481, the trustees were found to have breached their duty of impartiality because they invested the trust assets in income earning assets that benefited the income beneficiary but resulted in no capital gain for the capital beneficiaries. In other words, in their management of the trust fund the trustees failed to treat the income and capital beneficiaries impartially and had clearly favoured the interests of the income beneficiary.

The duty of impartiality is therefore useful for trustees (and protects beneficiaries) while trustees are managing trust assets on behalf of the beneficiaries as a whole. The duty creates an obligation for trustees to follow processes that respect the rights and interests of all beneficiaries. However, although the duty of impartiality affects how trustees manage assets within the trust, it does not dictate how trustees must exercise discretionary powers to distribute those assets out of the trust.

This issue was discussed in the English case of Edge v Pension Ombudsman [1999] EWCA Civ 2013, which involved distribution decisions by the trustees of a pension fund. The Court stated that:

The so-called duty to act impartially … is no more than the ordinary duty which the law imposes on a person who is entrusted with the exercise of a discretionary power: that he exercises the power for the purpose for which it is given, giving proper consideration to the matters which are relevant and excluding from consideration matters which are irrelevant. If pension fund trustees do that they cannot be criticised if they reach a decision which appears to prefer the claims of one interest … over others. The preference will be the result of a proper exercise of the discretionary power (emphasis added).

This decision confirms that when trustees make a decision to distribute trust they must follow a fair and impartial process (i.e. obtain relevant information and exclude irrelevant information) before making any distribution decision but, provided they do so, any subsequent distribution decision will be accepted as a proper exercise of their discretionary powers, even if it treats beneficiaries unequally.

In summary, when managing a trust, trustees must treat the beneficiaries of the trust impartially and even-handedly. However, when it comes time to exercise powers to allocate trust funds amongst the beneficiaries, trustees can exercise those powers to distribute the trust’s assets amongst beneficiaries unequally, even to the extent of excluding beneficiaries, provided that they have followed fair and impartial processes of management, investment and information gathering before making their distribution decisions.

With any trust holding valuable trust assets, any major distribution decisions by trustees are vulnerable to challenge by disgruntled beneficiaries. Although such challenges can only succeed if a Court accepts that the trustees breached their duties, a significant amount of time, cost and stress can be incurred by trustees defending any claim. To minimise the risks where major distributions or transactions are involved, we recommend that the arrangements be approved in writing by the beneficiaries of the trust. That is not always possible (particularly when some beneficiaries are young and unable to consent). In such cases, the trustees may want to consider obtaining the consent of the Court to the distribution on behalf of those beneficiaries or seeking directions from the Court about the best way to proceed. These processes can be expensive, but they minimise the risk of future challenge against the trustees.

This article provides some general guidelines for trustees. If you are a trustee considering your obligations for management or your powers of distribution, you need to carefully consider the specific terms of your trust deed (which could override these general guidelines) and obtain specialist legal advice if required. Please contact us if you would like to discuss any of these issues in more detail or if you would like more specific advice about your trust.



This article is current as at the date of publication and is only intended to provide general comments about the law. Harkness Henry accepts no responsibility for reliance by any person or organisation on the content of the article. Please contact the author of the article if you require specific advice about how the law applies to you.

For further information

Matthew Peploe - Harkness Henry Partner

Matthew Peploe

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