Which A&I form to complete and who should sign
There are 3 different A&I forms:
- private individual,
- private corporate, and
- public corporate.
The A&I form you need, and who should sign, depends on the type of entity you are acting for. The most common trust examples are included below.
| Trusts | A&I form to complete | Who signs |
|---|---|---|
| Trustee (individuals) | Private Individual | All private individual trustees |
| Trustee (trustee company) | Private Corporate | Director(s) and/or authorised signatory |
| Charitable trust (not incorporated under s7 Charitable Trusts Act 1957) | Private Individual | All private individual trustees |
| Incorporated charitable trust | Private Corporate | Authorised signatory(s) in line with the trust’s governing statute |
| Large trustee company (e.g. Public Trust, Guardian Trust, Trustees Executors Limited) | Public Corporate | Authorised signatory |
Definitions of private and public corporate
The Authority and Identity Requirements for E-Dealing Guideline 2018 – LINZG20775 includes definitions of private corporate and public corporate. If you are in doubt as to whether the entity you are dealing with is a private corporate or a public corporate, you should use the Private Corporate A&I form.
Signing under a power of attorney
A trustee may delegate, by power of attorney, all or any of the trustee’s powers or functions under s70 of the Trusts Act 2019 when they are outside of NZ, temporarily unable to be contacted or temporarily incapacitated.
By contrast, an attorney appointed under an enduring power of attorney in relation to property represents the donor in their personal capacity only and does not have powers to act in a trustee capacity. An enduring power of attorney can only be used to remove a trustee in the limited circumstances described in s92(1)(c) of the Trusts Act 2019.
In all cases:
- the power of attorney must be clear in terms of the powers conferred on the attorney and the attorney’s authority to act in relation to the specific transaction; and
- a certificate of non-revocation of power of attorney (dated the same date or later than the power of attorney) must be held with the A&I form.
Verifying the identity of the signatories
You must verify the identity of each of the individual trustees who sign the A&I form.
For private corporate bodies, you must verify the identity of the directors or authorised signatories of the company, the office they hold in the company and their authority to sign on behalf of the company in accordance with the Companies Act 1993.
If an A&I form is signed by an attorney under a power of attorney (whether for a private individual or a private corporate body), you must verify the identity of the attorney.
For further guidance on public and private corporates see section 3 of the:
Authority & Identity Requirements for E-Dealing Guideline 2018 - LINZG20775
Transferring trust property
In every transaction involving transfers by trustees of a trust, you will need every trustee who is a registered owner of the land to sign an A & I form (or have an A&I signed on their behalf if using the s117 Trusts Act 2019 process for removed trustees). Each trustee must also provide a land transfer tax statement.
If the trustees of a trust include both private individuals and a trustee company, you’ll need authorisation from all of the individuals who are trustees and the trustee company. As the confirmation statements in section 4 of the three different A&I forms are different, separate A&I forms must be used for an individual and a private or public corporate.
If a trustee ceases to act as trustee
Where land is held by the registered owners in a trust, and a trustee retires or a new trustee is appointed, any change in the legal ownership is usually dealt with by registering a transfer from all the existing registered owners to the new or continuing trustees.
Supporting A&I forms must be signed by all transferors and transferees, including an outgoing trustee. One A&I form can be used for a trustee who is both a transferor and transferee as long as it lists both roles.
If outgoing trustee can’t or won’t sign an A & I form to transfer
Trustee Act 1956
If a person is removed as trustee and it is not possible to obtain an A&I form from them to complete the transfer of a title, a Court Order vesting the property in the remaining/new trustees will usually be required. If a Court Order is obtained, this must be lodged for registration with LINZ using the CO code. A Court Order vesting trust property cannot be used as evidence to support a transfer. A trust deed cannot generally be used as a deed of delegation for an outgoing trustee.
Trusts Act 2019
The Trusts Act 2019 came into force on 30 January 2021. Under the Trusts Act 2019, a trustee who has retired or been removed must do all things necessary to assist in a divestment of land owned by the trust. If the removed trustee has lost the capacity to perform trustee functions, or fails or refuses to assist in the transfer, then the new and continuing trustees may complete any formal requirements necessary to transfer the land.
This means that they can execute an A&I form on behalf of the removed trustee. The form of A&I to be signed will be an A&I form which would have been used by the removed trustee. For example, if the removed trustee is a private individual, the private individual A&I form is used (even if one of the new or continuing trustees signing is a corporate themselves). The following evidence must be retained with the A&I form:
- A copy of the executed document(s) of appointment, removal or discharge of trustees (signed on or after 30 January 2021); and
- A statutory declaration by a continuing or new trustee under s117(1)(c) of the Trusts Act 2019 that the document was validly executed. You can find an example of a suitable statutory declaration here in the File Attachments section at the bottom of the page.
Each of the transferors and transferees, including the retired or removed trustee, must also provide a land transfer tax statement. The land transfer tax statement for the retired or removed trustee must be signed by all of the new and continuing trustees.
If it is not possible for the new and continuing trustees to complete the transfer of trust property, or the document which removed the trustee was signed before the commencement of the Trusts Act 2019, then a Court Order vesting the property in new trustees will be necessary. If a Court Order is obtained, this must be lodged for registration with LINZ using the CO code. A Court Order vesting trust property cannot be used as evidence to support a transfer.
Transmissions where a trustee has died
If a trustee dies, trust property vests in the surviving trustees by survivorship. A transmission instrument should be used to record this in the register. All of the surviving trustees must authorise the transmission and A&I forms will be required from them.
If a surviving trustee is incapable of performing their functions and has been removed as a trustee, the capable trustee/s can use the same provisions in the Trusts Act 2019 to register a transmission by survivorship as they would for a transfer.
The remaining trustee/s can sign the A&I form on behalf of the former trustee and for themselves. The following evidence must be retained with the A&I form:
Supporting both the transmission by survivorship and a following transfer:
- A copy of the executed document of appointment, removal or discharge of trustees (signed on or after 30 January 2021); and
- A statutory declaration by the continuing and new trustees that the document was validly executed. You can find an example of a suitable statutory declaration at the bottom of this page.
Supporting the transmission by survivorship:
- A certified copy of the entry in the Register of Deaths, for the deceased trustee.
- A statutory declaration for transmission by survivorship by the capable surviving trustee/s covering the usual statements, and also stating that the other surviving trustee is incapable.
A single statutory declaration by the remaining trustee covering both the execution of the document removing the incapable trustee and the death of the other trustee will also be acceptable.