Asia PacificCook Islands
Governing law
Cook Islands
ITA 1984
Must name
Licensed trustee
At least one
Must include
Anti-duress clause
If protection is the goal
Cannot bind
Letter of wishes
Defeats independence
What the deed is
As the founding document, the trust deed identifies the parties, sets who the beneficiaries are, lays out what the trustee can and must do, and declares the governing law. Its authority derives from the International Trusts Act 1984 and it cannot be overridden by anything else. In every Cook Islands trust that has come apart, the outcome hinged, at least partly, on the wording the deed contained or omitted.
What must be in it
There are three baseline requirements: the deed must name at least one licensed Cook Islands trustee; no beneficiary can be resident in the Cook Islands; and Cook Islands land cannot form part of the trust property. Past those limits, the Act leaves wide latitude for drafting, which cuts both ways as opportunity and hazard.
The five clauses that carry the most weight
The anti-duress clause. Instructs the trustee to ignore any directions extracted under coercion. Leave it out and the trust has no core device for defending assets against pressure from abroad. See duress clause.
Protector provisions. Set out who occupies the role, what authority they wield, and how the office passes on. The structural collapse in FTC v Affordable Media.
The beneficiary class. Which people may receive benefit and how far the trustee's discretion over payouts extends. See beneficiary class.
The governing law clause. Has to spell out Cook Islands law directly. Registration does not confer it by default.
Reserved powers. The things you retain, set down in plain terms. See reserved powers.
What it cannot contain
A letter of wishes that binds strips the trustee of any real discretion. When the settlor holds the ability to revoke the trust or dismiss the trustee whenever they please, that is an ownership power, and courts read it that way. A truly independent protector can safely hold either one; the settlor can safely hold neither.
Who drafts it
Drafting the deed falls to the trustee's counsel when the settlement is accepted. You are free to look over the draft and suggest changes. The point is that the five clauses above should never be left to some boilerplate default written for a trust that was never meant to be litigated.
See duress clause, reserved powers and trustee requirements.
(Review & sourcing)
Written by
Connor Steens
BBus, business development
Reviewed by
John Evans
20+ years, offshore structuring
Last updated
General information
Sourced from
Primary statute
ITA 1984 and trustee practice
01International Trusts Act 1984 — consolidated text.
02Trustee Companies Act 2014 — licensing requirements.
(COMMON QUESTIONS)
Common questions about the trust deed used in the Cook Islands
One licensed trustee at minimum, a statement that no beneficiary lives in the Cook Islands, and the omission of Cook Islands land. Beyond that, every element is a matter of choice.
The anti-duress clause, since it lets the trustee turn down a repatriation order without falling short of its duties.
No. Drafting is done by the trustee's counsel. Your role is to review it and put forward amendments.
Making the letter of wishes binding, handing the settlor the ability to revoke or dismiss the trustee at will, and holding on to control that makes the trustee resemble an agent.
No. It has to be named outright in the governing law clause.
Yes, provided the five substantive clauses are drafted in properly rather than being left to generic defaults.
It can still be corrected while the trust is running, but any changes made once a dispute has begun get examined for the intent behind them.
The trustee does, assuming the duties the deed lays down. The settlor hands over the assets and keeps only whatever powers the deed reserves.
(MORE ON THE SETUP)
Further reading and source material on the Setup
References
In-depth reference pages on the Setup.
1 min
Cook Islands Trust Beneficiary Class
Who can benefit, why their discretionary interest is not attachable property, and the drafting choices that preserve flexibility.
1 min
Cook Islands Trust Letter Of Wishes
Non-binding guidance to the trustee. Why it must not be binding, what it should say, and how often to update it.
1 min
Cook Islands Trust Registration
What gets filed, what remains private, and why registration triggers the protective provisions rather than deed execution.
1 min
Funding A Cook Islands Trust
Which assets move easily, which need separate work, why staging is faster, and the timing question that decides whether it holds.
1 min
Reserved Powers In A Cook Islands Trust
What you can keep without undermining the structure, what you should not, and the audit question every power must pass.
1 min
The Cook Islands Trust Deed
What must be in the deed, the five provisions that matter under pressure, and what cannot be included.
1 min
The Cook Islands Trust Duress Clause
Authorises the trustee to refuse a repatriation order. What it protects and what it cannot, explained through Anderson.
1 min
The Cook Islands Trust Jones Clause
Names a known creditor and authorises payment. The counterintuitive tool that weakens the fraudulent intent argument.
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