Trust Law - Charitable Trusts

To be registered under the Act, a trust must exist principally or exclusively for a charitable purpose according to the law of New Zealand, or for any purpose that is religious or educational whether or not such purpose is charitable according to New Zealand law.

The following purposes may be the basis of registration as a charitable trust:

• the promotion of education,
• the promotion of religion,
• the relief of poverty;
• other purposes of benefit to the community.

It is also charitable to establish facilities for recreation and other leisure-time activities if those facilities are provided in the interests of social welfare and are of public benefit. A charitable purpose may be the object of a trust or the purpose a society is formed. The trustees of the trust or society, as the case may be, may apply to the Registrar of Incorporated Societies for incorporation as a trust board.

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No trustees or society may be incorporated as a charitable trust board under a name which is identical, or almost identical to, the name of another board, company or body corporate, unless consent is given to the use of that name.

The Registrar of Incorporated Societies must also be satisfied that the name chosen will not be contrary to public interest.

You may wish to check existing names at the Companies Office.

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1. An application by trustees for incorporation of the trustees as a Board must be on the prescribed form (Form 1 in the Second Schedule to the Act), OR

2. An application by a society for incorporation of the society as a Board must be on the prescribed form (Form 2 in the Second Schedule to the Act).

All applications using either Form 1 or Form 2 in the Second Schedule to the Act must contain original applicant and witness signatures ) and are available from the "Forms" section of the Information Library at the Companies Office, or your regional Companies Office (see the "Contact Business & Registries" section of the Information Library at the Companies Office).

Incorporation of Trustees as a Board - Form 1

Trustees must be authorised to incorporate as a Board by the society to which they belong (but if there is no such society, this must be stated in the application).

The application for incorporation must be signed by the majority of the trustees. There must be more than one trustee.

An application cannot be made by trustees if they are already incorporated under another Act or if the society to which the trustees belong is itself incorporated under another Act.

Incorporation of a Society as a Board - Form 2

An application for incorporation cannot be made by a society unless the application is authorised by the majority of that society's members.

The application must be signed by at least five members of the society or by a majority of the trustees of that society.

An application is deemed to be authorised by a society if:

it is authorised by a majority of the members of that society at a meeting, reasonable notice was given to members of that society of the intention to hold that meeting and its purpose, the application is authorised by the rules of that society.

An application cannot be made by a society if it is already incorporated under another Act or if the trustees of the society are already incorporated under another Act.

Each applicant must provide his or her occupation, address and signature on the application form. Each signature must also be attested by a witness who is not a subscriber to the application. The witness must also add his or her occupation and address.

If a company is the applicant, it will sign in the manner provided by section 180 of the Companies Act 1993. If a corporate body other than a company is the applicant, its seal must be affixed to the application.

Registered Office
Both application Forms 1 and 2 require the registered office of the Board to be stated. This address should be an actual location and include the street number of a town or city. If the address is a named building, this name should be provided. If the building has more than one floor, or is made up of a suite of offices, then the floor or suite number should also be shown.

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A deed of trust or a document setting out the aims of the trust and how it will be run must be drawn up. There must be a clear intention to devote property to a charitable purpose, the property must be clearly defined and the purpose must be of a public nature, that is, for the benefit of the community or a section of the community. The purpose of the trust must either comply with the meaning of the term `charitable' as defined in the Act or be religious or educational in character.

A copy of the trust deed must be certified as being a `true and correct copy' by one of the trustees and attached to the registration documents for incorporation. The date of certification must be after the date on which the application was completed. Original documents may accompany an application instead of copies.

The Registrar of Incorporated Societies must be satisfied that the trust's activities are lawful and that the trustees will not gain any personal advantage or pecuniary gain from the assets of the trust before the application is approved.

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The application and deed of trust must be accompanied by a statutory declaration from one of the trustee applicants. The declaration must be made under the Oaths and Declarations Act 1957 and must either describe any additional trusts on which applicants hold property or state that there are no other trusts. This declaration must be dated on either the same day as the application or a date following this.

If a society is applying for incorporation, two additional documents are required:

• A copy of its rules or other constitutional documents certified by one of the applicants or trustees as a true copy of its current rules, or if there are no rules, a statutory declaration by one of the applicants describing the purpose of the society, how it operates, and how persons become members or cease to be members.
• A statutory declaration by one of the applicants that the society has authorised the application and the way in which this authorisation was obtained.

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In summary, to register as a charitable trust you will need:

• an application for registration a statutory declaration your trust deed.

There are no printed application forms or other documents available for the registration of a charitable trust. The application should be in either Form 1 or Form 2 in the Second Schedule to the Act (whichever is relevant) and the trust deed should be drafted specifically to meet the purposes of your particular trust. Staff in the office at which you are filing your documents may be able to provide you with assistance when completing your application.

When the above documents have been prepared they should be presented for registration by the Registrar of Incorporated Societies at your nearest Companies Office.

There is no fee for the registration of a charitable trust.

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The name of a registered charitable trust may be changed. You can apply to the Registrar of Incorporated Societies for the name to be changed.

Any alteration to the rules in the constitution of the board or any variation in the trusts on which the board holds property must be notified to the Registrar of Incorporated Societies within one month from the date of variation.

Where an alteration is made in the latter instance, notification to the Registrar of Incorporated Societies must be made in the form of a certified copy of the relevant new part of the trust, accompanied by a statutory declaration from a trustee setting forth the variation of the trust on which the additional property is held.

The information contained in this document is for guidance only. We recommend you seek professional advice if you intend to register a charitable trust under the Charitable Trusts Act 1957.

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