Feature Article: Trustee Investing: Homes and Hedges
AbstractWithin the last five years all Australian jurisdictions, following a New Zealand lead, have abolished the old statutory list of authorised trustee investments and have given trustees an unlimited investment power. In England s 3 of the Trustee Act 2000 provides that “a trustee may make any kind of investment that he could make if he were absolutely entitled to the assets of the trust”. The power is made subject to duties of care.The new Australasian legislation provides that: A trustee may, unless expressly prohibited by the instrument creating the trust (a) invest trust funds in any form of investment; and at any time, vary an investment.In New Zealand the wording of (a) is “in any property”.There is also a specific power enabling trustees to purchase a dwelling house as a residence for a beneficiary. As well as liberating trustees with respect to their investment powers the legislation places significant constraints upon them.
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