Find out which A&I form to complete and who should sign when your dealing involves a trust.
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.
A&I form to complete
All private individual trustees
Trustee (trustee company)
Director(s) and/or authorised signatory
Charitable trust (not incorporated under s7 Charitable Trusts Act 1957)
All private individual trustees
Incorporated charitable trust
Authorised signatory(s) in line with the trust’s governing statute
Large trustee company (e.g. Public Trust, Guardian Trust, Trustees Executors Limited)
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.
Verify the identity of the signatories
You must verify the identity of each of the individual trustees who sign the A&I form. For trustee companies, 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 corporate body), you must verify the identity of the attorney.
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. 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
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 comes 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 transfer 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 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 [link to new stat dec template]
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.
Transmission 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 the surviving trustees are unable or unwilling to provide the necessary statutory declaration to support a transmission, an application to the court may have to be made for an order vesting the property in the new trustees.
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.