Perpetuities and Accumulations Act 1985 (ACT)
Perpetuities and Accumulations Act 1985
A1985-65
Republication No 7
Effective: 1 May 2017
Republication date: 1 May 2017
Last amendment made by A2017‑8
About this republication
The republished law
This is a republication of the Perpetuities and Accumulations Act 1985 (including any amendment made under the Legislation Act 2001, part 11.3 (Editorial changes)) as in force on 1 May 2017. It also includes any commencement, amendment, repeal or expiry affecting this republished law to 1 May 2017.
The legislation history and amendment history of the republished law are set out in endnotes 3 and 4.
Kinds of republications
The Parliamentary Counsel’s Office prepares 2 kinds of republications of ACT laws (see the ACT legislation register at type="disc">
authorised republications to which the Legislation Act 2001 applies
unauthorised republications.
The status of this republication appears on the bottom of each page.
Editorial changes
The Legislation Act 2001, part 11.3 authorises the Parliamentary Counsel to make editorial amendments and other changes of a formal nature when preparing a law for republication. Editorial changes do not change the effect of the law, but have effect as if they had been made by an Act commencing on the republication date (see Legislation Act 2001, s 115 and s 117). The changes are made if the Parliamentary Counsel considers they are desirable to bring the law into line, or more closely into line, with current legislative drafting practice.
This republication does not include amendments made under part 11.3 (see endnote 1).
Uncommenced provisions and amendments
If a provision of the republished law has not commenced, the symbol U appears immediately before the provision heading. Any uncommenced amendments that affect this republished law are accessible on the ACT legislation register ( For more information, see the home page for this law on the register.
Modifications
If a provision of the republished law is affected by a current modification, the symbol M appears immediately before the provision heading. The text of the modifying provision appears in the endnotes. For the legal status of modifications, see the Legislation Act 2001, section 95.
Penalties
At the republication date, the value of a penalty unit for an offence against this law is $150 for an individual and $750 for a corporation (see Legislation Act 2001, s 133).
Perpetuities and Accumulations Act 1985
Contents
Page
1 Name of Act 2
2 Dictionary 2
2A Notes 2
3 Application of Act 2
4 Application of Act to Territory 3
5 Time of effect of will 3
6 Member of class 3
7 Powers of appointment 4
8 Perpetuity period 4
9 Wait and see 5
10 Reduction of age and exclusion of class members 6
11 Death of potential class member 7
12 Administrative power of trustees 8
13 Remuneration of trustees 8
14 Superannuation and other funds 9
15 Determinable interests 10
16 Options 11
17 Trusts for purposes which are not charitable 11
18 Dependent interests 12
19 Accumulation of income 12
20 Savings and transitional provisions 13
Dictionary14
Endnotes
1 About the endnotes 16
2 Abbreviation key 16
3 Legislation history 17
4 Amendment history 19
5 Earlier republications 20
Perpetuities and Accumulations Act 1985
An Act to effect reforms in the rules of law relating to perpetuities and accumulations
Name of Act
This Act is the Perpetuities and Accumulations Act 1985.
Dictionary
The dictionary at the end of this Act is part of this Act.
Note 1The dictionary at the end of this Act defines certain terms used in this Act, and includes references (signpost definitions) to other terms defined elsewhere.
For example, the signpost definition ‘trustee—see the Trustee Act 1925, dictionary.’ means that the term ‘trustee’ is defined in that dictionary and the definition applies to this Act.
Note 2A definition in the dictionary (including a signpost definition) applies to the entire Act unless the definition, or another provision of the Act, provides otherwise or the contrary intention otherwise appears (see Legislation Act, s 155 and s 156 (1)).
2ANotes
A note included in this Act is explanatory and is not part of this Act.
NoteSee the Legislation Act, s 127 (1), (4) and (5) for the legal status of notes.
Application of Act
(1)Except as provided by sections 12, 13 and 14, this Act does not apply in relation to a settlement taking effect before the commencement date.
(2)This Act applies in relation to a settlement exercising a power of appointment, whether general or special, and taking effect on or after the commencement date, whether or not it applies in relation to the settlement creating the power of appointment.
(3)For subsection (2), a gift over in default of an appointment under a power, whether general or special, shall be treated as a settlement exercising a power of appointment.
(4)Where a provision of a will executed before the commencement date but taking effect on or after that date creates an interest—
(a)if that provision would not have infringed the rule against perpetuities if this Act had not been made—the provision shall take effect as if this Act had not been made; or
(b)if that provision would have infringed the rule against perpetuities if this Act had not been made—this Act applies to the provision.
Application of Act to Territory
(1)The rule against perpetuities and the rule against perpetual trusts bind the Territory.
(2)However, nothing in the rule against perpetuities, in the rule against perpetual trusts or in this Act affects any settlement made by the Territory.
(3)Subsection (1) has effect except so far as another Territory law otherwise provides.
(4)Subsection (2) has effect despite the Legislation Act 2001, section 121 (Binding effect of Acts).
Time of effect of will
For this Act, a will shall, in relation to a disposition contained in it, be deemed to take effect on the death of the testator.
Member of class
For this Act, a person shall be treated as a member of a class if in the person’s case each and every condition identifying a member of the class is satisfied.
Powers of appointment
(1)For the purposes of the rule against perpetuities, a power of appointment shall be treated as a special power unless—
(a)in the settlement creating the power it is expressed to be exercisable by 1 person only; and
(b)the power could at all times during its currency when that person is of full age and capacity be exercised immediately by him or her to transfer to, or otherwise vest in, himself or herself the whole of the interest governed by the power without the consent of any person or compliance with any other condition, not being a formal condition relating only to the mode of the exercise of the power.
(2)Notwithstanding subsection (1), a power of appointment that would, but for the fact that it was made exercisable only by will, have been a general power shall be treated as a general power for the purpose of determining whether an appointment under the power infringes the rule against perpetuities.
(3)For this section, an authority shall be taken to be unconditional notwithstanding any formal condition relating to the mode of exercise of the power.
Perpetuity period
(1)For the purposes of the rule against perpetuities, the perpetuity period applicable to an interest created by a settlement shall, subject to this section, be 80 years from the date on which the settlement takes effect.
(2)Where an appointment of an interest is made under a special power of appointment, the perpetuity period shall be reckoned from the date on which the settlement creating the power takes effect.
(3)Where a child who is en ventre sa mère at the time when the perpetuity period applicable to an interest created by a settlement would, but for this subsection, have expired would, if that child had been born before that time, have taken that interest, that perpetuity period shall be extended until—
(a)the expiry of the date on which the child is born; or
(b)it becomes apparent that the child will not be born;
as the case requires.
(4)Subsection (3) does not apply unless, before the expiry of the perpetuity period that would, but for that subsection, be applicable to the interest created by the relevant settlement, the trustees under that settlement have received notice, supported by a certificate signed by a duly qualified medical practitioner who has examined the woman carrying the child in question, that the child is en ventre sa mère.
Wait and see
(1)Where a provision of a settlement which creates an interest would, but for this section or this section and section 10, infringe the rule against perpetuities, the interest shall be treated, until such time (if any) as it becomes certain that, notwithstanding section 10, it must vest, if at all, after the end of the perpetuity period, as if the provision did not infringe that rule, and its so becoming certain does not affect the validity of any thing previously done in relation to the interest.
(2)Where a provision of a settlement which creates an interest consisting of the conferring of a general power of appointment would, but for this section or this section and section 10, infringe the rule against perpetuities, the interest shall be treated, until such time (if any) as it becomes certain that, notwithstanding section 10, the power will not be exercisable within the perpetuity period, as if the provision did not infringe that rule.
(3)Where a provision of a settlement which creates an interest consisting of the conferring of any power or right (except a general power of appointment) would, but for this section or this section and section 10, infringe the rule against perpetuities, the interest shall be treated as regards any exercise of the power or right within the perpetuity period as if the provision did not infringe that rule, and the provision shall be treated as infringing that rule only if and so far as the power or right is not fully exercised within the perpetuity period.
Reduction of age and exclusion of class members
(1)Where—
(a)a provision of a settlement creates an interest and the vesting of the interest depends on the attainment by a person of a specified age or by persons of respective specified ages; and
(b)immediately before the expiration of the perpetuity period applicable to that interest—
(i)that person has not attained the specified age, or any of those persons has not attained the age specified in relation to that person, as the case may be; and
(ii)the interest has not vested; and
(c)the provision is, by reason of the operation of section 9, to be treated as if it did not infringe the rule against perpetuities;
the interest shall, for all purposes, be treated as if its vesting depended on the attainment by the person, or each of the persons referred to in paragraph (b) (i), as the case requires, of the age that he or she has attained immediately before the expiration of that perpetuity period.
(2)Where an interest to which subsection (1) applies is ulterior to any other interest created by the settlement, that other interest shall not be defeated or otherwise adversely affected by the operation of subsection (1).
(3)Subject to section 11, where—
(a)a provision of a settlement creates an interest which is to be taken by a class of persons; and
(b)immediately before the expiry of the perpetuity period applicable to that interest—
(i)the interest has not vested; and
(ii)there is a person who is, or there are persons each of whom is, a member of that class (whether under the operation of subsection (1) or otherwise); and
(iii)the provision is, by reason only of the operation of section 9, to be treated as if it did not infringe the rule against perpetuities;
in relation to that interest, that class shall be taken to comprise only that person or those persons.
(4)Where this section has effect in relation to a provision, the operation of this section does not affect the validity of any thing previously done in relation to the interest created by the provision.
Death of potential class member
Where—
(a)section 10 (1) applies to an interest that is to be taken by a class of persons; and
(b)a person would have been a member, or persons would have been members, of that class (whether under the operation of section 10 (1) or otherwise) if that person or those persons had survived to the expiry of the perpetuity period applicable to that interest; and
(c)that person has, or those persons have, any children who survive to the expiry of that perpetuity period;
those children will take, per stirpes, the interest that their parent, or the respective interests that their parents, would have taken had that parent or those parents survived to the expiry of that perpetuity period.
Administrative power of trustees
(1)The rule against perpetuities does not invalidate an administrative power in relation to trust property during the subsistence of a beneficial interest in the trust property.
(2)This section applies to an administrative power taking effect, and to any exercise of an administrative power, before, on or after the commencement date.
(3)In this section:
administrative power means any power of a trustee other than a power to appoint, pay, transfer, advance, apply, distribute or otherwise deal with trust property in or towards satisfaction of the interest of a beneficiary under the trust or in or towards satisfaction of a purpose of the trust.
Remuneration of trustees
(1)The rule against perpetuities does not invalidate a power or other provision for remunerating a trustee for the trustee’s services.
(2)This section applies to a power or other provision for remunerating a trustee taking effect before, on or after the commencement date.
Superannuation and other funds
(1)The rule against perpetuities does not invalidate a fund established by a settlement for the benefit of—
(a)employees; or
(b)self-employed persons; or
(c)domestic partners, children, grandchildren, parents, dependants or legal personal representatives of employees or self-employed persons; or
NoteFor the meaning of domestic partner, see Legislation Act, s 169.
(d)persons duly selected or nominated for that purpose by employees or self-employed persons pursuant to the provisions of the settlement.
(2)This section applies to settlements taking effect before, on or after the commencement date.
(3)In this section:
employees includes directors, officers, servants and employees of any employer.
fund means a provident, superannuation, sick, accident, assurance, unemployment, pension or co‑operative benefit fund, scheme, arrangement or provision or other like fund, scheme, arrangement or provision.
self-employed persons includes persons engaged on their own behalf in any lawful profession, trade, occupation or calling.
Determinable interests
(1)The rule against perpetuities operates to render invalid the provision for determination of a determinable interest in the same manner as the rule would operate to render invalid a condition subsequent in a settlement for defeasance of the determinable interest on the same contingency, and where that rule does so operate—
(a)the determinable interest shall not be so determinable; and
(b)a subsequent interest not itself rendered invalid by that rule shall be postponed or defeated to the extent necessary to allow the determinable interest to have effect free from the provision for determination.
(2)For this section, an interest created by, or a provision of, an appointment or other exercise of a power in a settlement (except a general power of appointment) shall be treated as an interest created by, or a provision of, the settlement.
(3)Notwithstanding subsection (1), the rule against perpetuities shall not apply to—
(a)a gift over from 1 charity to another; or
(b)any provision for the determination of a lease for breach of a covenant or condition of the lease.
(4)In this section:
determinable interest means an interest created by a settlement, being an interest which is, by a provision of the settlement, determinable on a contingency.
subsequent interest, in relation to a determinable interest means an interest, whether vested or contingent—
(a)created by the settlement, or remaining undisposed of by the settlement, or taking effect by way of reverter, resulting trust, residuary gift or otherwise on a possibility arising under the settlement; and
(b)as regards which the determinable interest is a prior interest.
Options
(1)The rule against perpetuities does not apply to—
(a)any option to renew a lease; or
(b)an option to acquire for valuable consideration a reversionary interest in the property comprised in a lease if the option is exercisable only—
(i)by the lessee or the lessee’s successors in title; and
(ii)during the currency of the lease.
(2)Where the rule against perpetuities operates to render invalid an option, no action lies, in contract or otherwise, for giving effect to it or making restitution for its lack of effect.
Trusts for purposes which are not charitable
(1)Except as provided by this section, this Act shall not affect the operation of the rule against perpetual trusts.
(2)Where, by a settlement, there is a disposition for a purpose, the perpetuity period applicable to the disposition shall, for the purposes of the rule against perpetual trusts, be 80 years from the date on which the settlement takes effect.
(3)Where—
(a)by a settlement, a disposition creates a trust for a purpose; and
(b)the trust would, but for this section, infringe the rule against perpetual trusts; and
(c)the term of the trust is determined by reference to the occurrence or nonoccurrence of a contingency or contingencies specified in the settlement;
the trust shall be treated as if it did not infringe the rule until such time as it becomes certain that, by reason of the occurrence or nonoccurrence of such a contingency, the term of the trust specified in the settlement will exceed the perpetuity period, and its so becoming certain does not affect the validity of anything previously done in relation to the trust.
(4)This section does not apply to a disposition for a purpose which is charitable.
Dependent interests
(1)Where a provision of a settlement creates an interest, the provision is not rendered invalid by the rule against perpetuities or the rule against perpetual trusts by reason only that the interest is ulterior to and dependent upon an interest which is so invalid.
(2)Where a provision of a settlement creates an interest which is ulterior to another interest and the other interest is rendered invalid by the rule against perpetuities or the rule against perpetual trusts, the acceleration of the vesting of the ulterior interest shall not be affected by reason only that the other interest is so invalid.
Accumulation of income
(1)Where property is disposed of in such a manner that the income of the property may be or is directed to be accumulated wholly or in part, the power or direction to accumulate that income is valid if the disposition of the accumulated income is, or may be, valid, but not otherwise.
(2)This section does not affect the power of any person to terminate an accumulation that is for the person’s benefit, or any jurisdiction or power of a court to maintain or advance out of accumulations, or any power of a trustee under any law in force in the ACT or under any settlement.
Savings and transitional provisions
(1)Section 13 does not affect any rights arising under a judgment or an order which took effect before the commencement date or arising under any agreement made before that date.
(2)Notwithstanding section 21, the provisions of the Act referred to in that section continue to apply in relation to a settlement that took effect before the commencement date.
Dictionary
(see s 2)
Note 1The Legislation Act contains definitions and other provisions relevant to this Act.
Note 2For example, the Legislation Act, dict, pt 1 defines the following terms:
· ACT
· exercise
· interest
· the Territory.
commencement date means the date of commencement of this Act.
disposition includes—
(a)the conferring or exercising of a power of appointment or any other power or authority to dispose of property; and
(b)any alienation of property.
power of appointment includes any discretionary power to make a disposition.
property includes any interest in real or personal property and any thing in action.
settlement includes—
(a)a will; and
(b)an instrument, testamentary or otherwise, exercising a power of appointment, whether general or special; and
(c)any other instrument, transaction or dealing whereby a person makes a disposition;
but does not include a law in force in the ACT.
the rule against perpetual trusts means the common law rule that invalidates a trust for a purpose which is not charitable where the duration of the trust, if it were valid, would or might exceed the perpetuity period.
trust—see the Trustee Act 1925, section 4.
trustee—see the Trustee Act 1925, dictionary.
will includes a codicil.
Endnotes
About the endnotes
Amending and modifying laws are annotated in the legislation history and the amendment history. Current modifications are not included in the republished law but are set out in the endnotes.
Not all editorial amendments made under the Legislation Act 2001, part 11.3 are annotated in the amendment history. Full details of any amendments can be obtained from the Parliamentary Counsel’s Office.
Uncommenced amending laws are not included in the republished law. The details of these laws are underlined in the legislation history. Uncommenced expiries are underlined in the legislation history and amendment history.
If all the provisions of the law have been renumbered, a table of renumbered provisions gives details of previous and current numbering.
The endnotes also include a table of earlier republications.
Abbreviation key
A = Act NI = Notifiable instrument AF = Approved form o = order am = amended om = omitted/repealed amdt = amendment ord = ordinance AR = Assembly resolution orig = original ch = chapter par = paragraph/subparagraph CN = Commencement notice pres = present def = definition prev = previous DI = Disallowable instrument (prev...) = previously dict = dictionary pt = part disallowed = disallowed by the Legislative r = rule/subrule Assembly reloc = relocated div = division renum = renumbered exp = expires/expired R[X] = Republication No Gaz = gazette RI = reissue hdg = heading s = section/subsection IA = Interpretation Act 1967 sch = schedule ins = inserted/added sdiv = subdivision LA = Legislation Act 2001 SL = Subordinate law LR = legislation register sub = substituted LRA = Legislation (Republication) Act 1996 underlining = whole or part not commenced mod = modified/modification or to be expired
Legislation history
This Act was originally a Commonwealth ordinance—the Perpetuities and Accumulations Ordinance 1985 Ord1985‑65 (Cwlth).
The Australian Capital Territory (Self-Government) Act 1988 (Cwlth), s 34 (4) converted most former Commonwealth ordinances in force in the ACT into ACT enactments. This allowed the ACT Legislative Assembly to amend and repeal the laws. This Act was converted into an ACT enactment on 11 May 1989 (self-government day).
As with most ordinances in force in the ACT, the name was changed from Ordinance to Act by the Self-Government (Citation of Laws) Act 1989 A1989‑21, s 5 on 11 May 1989 (self-government day).
Before 11 May 1989, ordinances commenced on their notification day unless otherwise stated (see Seat of Government (Administration) Act 1910 (Cwlth), s 12).
Commonwealth legislation
Perpetuities and Accumulations Act 1985 A1985‑65
notified 19 December 1985
commenced 19 December 1985
as amended by
Self-Government (Consequential Amendments) Ordinance 1989 Ord1989‑38 sch 1
notified 10 May 1989 (Cwlth Gaz 1989 No S160)
s 1, s 2 commenced 10 May 1989 (s 2 (1))sch 1 commenced 11 May 1989 (s 2 (2) and see Cwlth Gaz 1989 No S164)
Legislation after becoming Territory enactment
Acts Revision (Position of Crown) Act 1993 A1993‑44 sch 1
notified 27 August 1993 (Gaz 1993 No S165)
sch 1 commenced 27 August 1993 (s 2)
Legislation (Consequential Amendments) Act 2001 A2001‑44 pt 280
notified 26 July 2001 (Gaz 2001 No 30)
s 1, s 2 commenced 26 July 2001 (IA s 10B)pt 280 commenced 12 September 2001 (s 2 and see Gaz 2001 No S65)
Statute Law Amendment Act 2001 (No 2) 2001 No 56 pt 3.40
notified 5 September 2001 (Gaz 2001 No S65)
commenced 5 September 2001 (s 2 (1))
Legislation Amendment Act 2002 A2002‑11 pt 2.37
notified LR 27 May 2002
s 1, s 2 commenced 27 May 2002 (LA s 75)pt 2.37 commenced 28 May 2002 (s 2 (1))
Legislation (Gay, Lesbian and Transgender) Amendment Act 2003 A2003-14 sch 1 pt 1.27
notified LR 27 March 2003
s 1, s 2 commenced 27 March 2003 (LA s 75 (1))sch 1 pt 1.27 commenced 28 March 2003 (s 2)
Civil Unions Act 2006 A2006-22 sch 1 pt 1.24
notified LR 19 May 2006
s 1, s 2 commenced 19 May 2006 (LA s 75 (1))
sch 1 pt 1.24 never commencedNoteAct repealed by disallowance 14 June 2006 (see Cwlth Gaz 2006 No S93)
Statute Law Amendment Act 2007 A2007-3 sch 3 pt 3.75
notified LR 22 March 2007
s 1, s 2 taken to have commenced 1 July 2006 (LA s 75 (2))sch 3 pt 3.75 commenced 12 April 2007 (s 2 (1))
Civil Partnerships Act 2008 A2008-14 sch 1 pt 1.20
notified LR 15 May 2008
s 1, s 2 commenced 15 May 2008 (LA s 75 (1))
sch 1 pt 1.20 commenced 19 May 2008 (s 2 and CN2008-8)Co-operatives National Law (ACT) Act 2017 A2017-8 sch 2 pt 2.5
notified LR 4 April 2017
s 1, s 2 commenced 4 April 2017 (LA s 75 (1))
sch 2 pt 2.5 commenced 1 May 2017 (s 2)
Amendment history
Name of Act
s 1A2007‑3 amdt 3.402
Dictionary
s 2defs reloc to dict A2007‑3 amdt 3.404
sub A2007‑3 amdt 3.405
def interest om A2007‑3 amdt 3.403
Notes
s 2Ains A2007‑3 amdt 3.405
Application of Act to Territory
s 4am A1993‑44 sch 1
sub A2002‑11 amdt 2.77
Superannuation and other funds
s 14am A2003‑14 amdt 1.86, amdt 1.87; A2006‑22 amdt 1.104 (A2006‑22 rep before commenced by disallowance (see Cwlth Gaz 2006 No S93)); A2008‑14 amdt 1.72; A2017‑8 amdt 2.6
Repeal
s 21om A2001‑44 amdt 1.3119
Trustee Act 1957—amendment
s 22om A2001‑56 amdt 3.465 (see also A2001‑44 amdt 1.3119)
Seat of Government (Administration) Ordinance 1930—amendment
s 23om Ord1989‑38 sch 1
Dictionary
dictins A2007‑3 amdt 3.406
def commencement date reloc from s 2 A2007‑3 amdt 3.404
def disposition reloc from s 2 A2007‑3 amdt 3.404
def power of appointment reloc from s 2 A2007‑3 amdt 3.404
def property reloc from s 2 A2007‑3 amdt 3.404
def settlement reloc from s 2 A2007‑3 amdt 3.404
def the rule against perpetual trusts reloc from s 2 A2007‑3 amdt 3.404
def trust sub A2001‑56 amdt 3.464
reloc from s 2 A2007‑3 amdt 3.404
def trustee sub A2001‑56 amdt 3.464
reloc from s 2 A2007‑3 amdt 3.404
def will reloc from s 2 A2007‑3 amdt 3.404
Earlier republications
Some earlier republications were not numbered. The number in column 1 refers to the publication order.
Since 12 September 2001 every authorised republication has been published in electronic pdf format on the ACT legislation register. A selection of authorised republications have also been published in printed format. These republications are marked with an asterisk (*) in column 1. Electronic and printed versions of an authorised republication are identical.
Republication No Amendments to Republication date 1 Ord1989‑38 31 May 1991 2 A2001‑56 11 January 2002 3 A2002‑11 29 May 2002 4 A2003‑14 28 March 2003 5 A2007‑3 12 April 2007 6 A2008‑14 19 May 2008
© Australian Capital Territory 2017
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