Public Trustee Act 1978 (Qld)
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Public Trustee Act 1978
An Act about the public trustee
Part 1 Preliminary
1 Short title
This Act may be cited as the Public Trustee Act 1978.
2 Commencement
This Act shall commence on a day to be fixed by proclamation.
3 [Repealed]
4 Crown to be bound
This Act, except where otherwise provided, binds the Crown not only in right of the State but also, as far as the legislative power of Parliament permits, the Crown in all its other capacities.
5 Provision about the Child Protection (International Measures) Act 2003
The Child Protection (International Measures) Act 2003 includes provisions about the exercise of jurisdiction under this Act.
6 Definitions
In this Act—appointed board member, for part 8A, see section 117V.benefit, in relation to a person, includes insurance on the life of that person and the education and advancement of that person.board, for part 8A, see section 117V.board meeting, for part 8A, see section 117ZO(1).board member, for part 8A, see section 117ZB.body includes a corporation, unincorporated body or association including a partnership or association of persons.chief executive (corrective services) ...common fund means a common fund established under section 19.corporation means the corporate sole constituted by the public trustee under the name The Public Trustee of Queensland.court means the Supreme Court.deputy public trustee ...election to administer means an election filed pursuant to section 30 or 31.employer, in relation to an amount of unpaid wages, for part 8, division 1, see section 98.estate under administration means any property held, administered, managed or controlled by the public trustee in any capacity (including, for example, as personal representative, trustee, administrator, guardian, committee, manager, liquidator or receiver), and includes—(a)an estate under management as defined in section 64; and(b)an estate under administration that is administered jointly with someone else.former employee, for part 8, division 1, see section 98.grant of administration means—(a)probate of the will of a deceased person; or(b)letters of administration of the estate of a deceased person, with or without the will annexed, for general, special or limited purposes; or(c)an order to administer; or(d)an election to administer;and a reference to the making of a grant of administration includes the filing of an election to administer.incapacitated person means an incapacitated person as defined in section 64.instrument includes any deed, will, agreement for a settlement, Act of Parliament or order of a court or any number of such instruments, whether made or passed before or after, or partly before and partly after, the commencement of this Act.land ...Minister ...mortgage ...mortgagee ...mortgagor ...official solicitor means the official solicitor to the public trustee provided for in section 16.order to administer means an order of the court made pursuant to part 3 authorising the public trustee, either solely or jointly with someone else to administer the estate of a deceased person, whether general or special or limited in any way.owner, in relation to property, includes any person having an estate or interest in the property.permanent board member, for part 8A, see section 117V.personal information means information or a document about an individual’s affairs, but does not include—(a)information or a document that is publicly available; or(b)criminal history information within the meaning of section 117ZM(5); or(c)statistical or other information, or a document containing statistical or other information, that could not reasonably be expected to result in the identification of the individual to whom the information or document relates.personal representative means a person having a grant of administration.person under a legal disability—(a)for section 59—see section 59(1A); and(b)otherwise—means a child.proceedings includes any action, cause or matter and any other procedure, in court or otherwise, whether formal or informal, (including criminal proceedings as to property, the submission to arbitration or the lodging of a caveat) directed to the assertion, enforcement or protection of any right.property includes real and personal property of every description or kind and wherever situated, any estate or interest therein, any debt, any thing in action and any other right or interest whether legal or equitable (including, without prejudice to the generality of the foregoing, rights as to rescission, avoidance or restitution).public trustee means—(a)as an individual—the Public Trustee of Queensland; or(b)in any other case—the corporation.Real Property Acts ...registering authority means the registrar of titles or anyone else required or permitted to record interests in property.spent conviction ...stock includes stock (whether debenture, inscribed or otherwise), shares, debentures, units and notes (secured or otherwise) and other like investments.trust includes—(a)implied and constructive trusts; and(b)cases where the trustee has a beneficial interest in the trust property; and(c)the duties incidental to a personal representative’s office;but does not include the duties incidental to a mortgaged interest.trustee means a person who administers a trust.unclaimed moneys fund means the account maintained pursuant to section 25.under a legal disability ...unpaid wages, for part 8, division 1, see section 98B.will ...
Part 2 The public trustee and Public Trust Office
7 Public trustee and Public Trust Office
(1)There is a Public Trustee of Queensland and an office called the Public Trust Office.(2)The Public Trust Office consists of the public trustee and the office’s staff.
8 Corporation sole of public trustee
(1)The corporation sole constituted by the public trustee is continued under the name The Public Trustee of Queensland (the corporation).(2)The corporation—(a)is a body corporate with perpetual succession; and(b)has a seal; and(c)may sue and be sued in its corporate name.(3)The corporation represents the State.(4)Without limiting subsection (3), the corporation has all the State’s privileges and immunities.(5)The corporation has all the powers of an individual and may, for example—(a)enter into contracts; and(b)acquire, hold, dispose of, and deal with, property; and(c)appoint agents and attorneys; and(d)engage consultants; and(e)fix charges, and other terms, for services it supplies; and(f)do anything necessary or convenient to be done in the performance of the public trustee’s functions under this or another Act.(6)The corporation also has the powers conferred on it by this or another Act.(7)The corporation may exercise its powers inside and outside Queensland.(8)Without limiting subsection (7), the corporation may exercise its powers outside Australia.(9)The corporation is declared to be an excluded matter for the Corporations Act, section 5F, in relation to the whole of the Corporations Legislation.
9 Provisions about public trustee
(1)The public trustee is to be appointed by the Governor in Council.(2)The public trustee is to be appointed for a term of not longer than 5 years.(3)The public trustee is subject to the Minister, but is not subject to any officer or employee of the department.(4)The public trustee is entitled to be paid the remuneration and allowances decided by the Governor in Council.(5)The public trustee ceases to hold office if the public trustee—(a)resigns by signed notice given to the Minister; or(b)finishes a term and is not reappointed; or(c)is removed from office by the Governor in Council under subsection (6).(6)The Governor in Council may remove the public trustee if the public trustee—(a)is found guilty of an indictable offence or an offence against this Act; or(b)engages in misbehaviour; or(c)becomes incapable of performing the duties of the public trustee because of physical or mental incapacity; or(d)is incompetent; or(e)contravenes subsection (7); or(f)without the Minister’s leave and without reasonable excuse, is absent for 14 consecutive days or 28 days in a year.(7)The public trustee must give written notice to the Minister of all direct or indirect financial interests that the public trustee has or acquires in a business or in an entity carrying on a business.(8)The public trustee holds office on the terms not provided for by this Act as are decided by the Governor in Council.(9)The public trustee is to be appointed under this Act, and not under the Public Sector Act 2022.
10 Acting public trustee
The Governor in Council may appoint a person to act as public trustee during—(a)a vacancy, or all vacancies, in the office; or(b)a period, or all periods, when the public trustee is absent from duty or is, for another reason, unable to perform the functions of the office.
11 Staff of Public Trust Office
The staff of the Public Trust Office are to be employed under the Public Sector Act 2022.
11A Delegation by public trustee
(1)The public trustee may delegate the public trustee’s powers under this Act to any person.(2)A power may be subdelegated if the delegation expressly allows the subdelegation of the power.(3)Without limiting subsections (1) and (2), the following powers may be delegated (and subdelegated)—(a)making an affidavit or statutory declaration required or permitted to be made by the public trustee, signing a document to be filed in a court, verifying an account or personally attending a court instead of the public trustee;(b)executing a transfer of property for the public trustee;(c)giving or signing a notice, consent, certificate, instrument or other document the public trustee is required or permitted to give or sign.(4)If, when exercising a power under a delegation or subdelegation under this section, the delegatee signs a document, the delegatee may add after the delegatee’s signature the following statement or a statement to the following effect—‘Signed as delegate for the public trustee under section 11A of the Public Trustee Act 1978’.
(5)A document purporting to be a document mentioned in subsection (4) is taken to have been properly signed by a delegatee of the public trustee under a delegation made under this section unless the contrary is proved.(6)Subsections (4) and (5) do not limit section 27A of the Acts Interpretation Act 1954.
11B Public trustee’s seal
(1)The public trustee’s seal may be kept in as many facsimiles as the public trustee considers are necessary for the Public Trust Office’s business.(2)The seal and any facsimile are to be kept in the custody directed by the public trustee and may be used only as authorised by the public trustee.
11C Contracts and transactions of public trustee not under seal
Despite the Property Law Act 2023, section 223(1)(b), section 223 applies to the public trustee as if the public trustee were a corporation to which that section applies.
11D Evidentiary provisions
(1)Judicial notice must be taken of the appointment and signature of the public trustee.(2)Judicial notice must be taken of the imprint of the public trustee’s seal appearing on a document and the document must be presumed to have been properly sealed unless the contrary intention is proved.(3)In any proceeding, anything done, or omitted to be done, by or purportedly by the public trustee, or someone else for or purportedly for the public trustee, must be taken to have been properly done, or omitted to be done, in the absence of evidence to the contrary.
11E Bond or other security not to be required
A bond or other security must not be required from the public trustee for appointment to or acting in an office or capacity under this Act.
12 Sale of property by auction by authorised persons
(1)Where the public trustee wishes to sell by auction land or goods in an estate under administration and such land or goods is or are situated at a distance of more than 20km from the usual place of business of a holder of a relevant auctioneer’s licence, such land or goods may be offered for sale by auction at a time and place directed by the public trustee by a person authorised in writing by the public trustee and such person for the purpose of such auction shall not be required to take out an auctioneer’s licence.(2)In this section—auctioneer’s licence means—(a)an auctioneer licence under the Property Occupations Act 2014; or(b)a chattel auctioneer licence under the Motor Dealers and Chattel Auctioneers Act 2014.relevant auctioneer’s licence means an auctioneer’s licence under which the sale by auction of the land or goods would be authorised.
13 [Repealed]
14 [Repealed]
15 Declaration of secrecy
Every member of the staff of the Public Trust Office, every agent of the public trustee and every member of The Public Trust Office Investment Board constituted pursuant to section 21 shall be bound to secrecy by declaration in the form approved by the public trustee.
16 Employment of solicitors etc.
(1)The public trustee may, subject to the regulations, consult with and employ such solicitors, counsel, financial institutions, accountants and brokers or other persons as the public trustee considers necessary and may remunerate such persons and shall be entitled to be allowed and paid all charges and expenses so incurred.(2)Where, in the case of an estate under administration, the settlor or testator by the trust instrument has directed that a solicitor, accountant, broker or financial institution shall conduct the legal or other business of the estate, such person shall be entitled to act therein accordingly, but, in such case, the public trustee shall not be liable for the default of such person except to the extent to which the public trustee is entitled to be indemnified out of the estate under administration.(2A)Such person may be removed by order of the court upon the application of the public trustee or of any person interested in the estate upon cause shown, and, in such case, the court may appoint the public trustee or any other person to conduct such business or may make such other order as it thinks fit.(3)There may be an official solicitor to the public trustee, who shall be a barrister or solicitor of the Supreme Court.(4)The official solicitor shall be entitled to act as solicitor in any court or in any proceedings under the title of ‘official solicitor to the public trustee’ without the necessity of showing the official solicitor’s own personal name and, on any change in the holder of the office of official solicitor, it shall not be necessary to give any notice of change of solicitor or otherwise formally to record such change.(5)Notwithstanding subsections (1) to (4), it shall not be necessary, when a solicitor other than a solicitor in private practice acts for the public trustee in any proceedings, for the proceedings to be conducted on behalf of the public trustee in the name of such solicitor or for documents filed or delivered on behalf of the public trustee in the proceedings to be endorsed with the name or place of business or address for service of the solicitor filing or delivering such documents, but only the corporate name of the public trustee and, where an address or place of business is required to be shown, the solicitor’s address for service need be shown thereon.(6)Notwithstanding that the name of a solicitor does not appear on the record of any proceedings as acting for the public trustee, the public trustee shall be entitled to the same costs and expenses and in the same manner as if the name of a solicitor did appear on the record of the proceedings.(7)To remove any doubt, nothing in this section prevents the official solicitor from acting as barrister or solicitor for a person other than the public trustee.
17 Public trustee may fix fees and charges
(1)The public trustee may, by gazette notice, fix fees and charges for services the public trustee performs or provides.(2)The fees and charges have effect from the day the notice is gazetted or a later day stated in the notice.(3)The fees and charges must be reasonable having regard to the circumstances in which the service is provided.(4)In particular, and without limiting subsection (3), the amount of a fee or charge must be decided having regard to the following—(a)the type and complexity of the service performed;(b)the degree of care, responsibility, skill or special knowledge required to perform the service.(5)Also, the gazette notice may provide that a fee or charge for a service is to be worked out according to—(a)a stated hourly, daily or other rate; or(b)the number or type of documents perused.(6)A gazette notice under this section is subordinate legislation and exempt subordinate legislation.
17A Priority etc. of fees and charges
(1)The public trustee may retain or pay out of an estate the public trustee is administering, in priority to any other claims—(a)expenses (including liabilities) a trustee may retain or pay out of trust property, or that the public trustee considers are necessary or expedient for the management of the estate; and(b)fees payable for a service the public trustee provides.(2)The public trustee is to decide whether the fees and expenses payable under this section are to be paid from capital or income.(3)The public trustee has a general lien on all property comprised in an estate the public trustee is administering for the payment of—(a)fees and expenses payable, including fees and expenses payable under this section for the administration of the estate; and(b)costs, fees and allowances and charges earned by the official solicitor or another lawyer who is a public service officer for the public trustee in connection with a proceeding relating to the estate.(4)The public trustee’s interest under subsection (1) or (3) in relation to personal property is declared to be a statutory interest to which section 73(2) of the Personal Property Securities Act 2009 (Cwlth) applies.(5)The public trustee has the same rights of lien a lawyer who is not a public service officer would have for costs and charges for work of a legal nature—(a)done by the public trustee or the official solicitor; or(b)done for the public trustee by a lawyer who is a public service officer.(6)In this section—personal property see the Personal Property Securities Act 2009 (Cwlth), section 10.
17B Costs etc. for proceedings
(1)This section applies to a proceeding—(a)in which the public trustee is a party or is in any way interested; and(b)in relation to which the official solicitor or another lawyer who is a public service officer acts on behalf of, or otherwise represents, the public trustee.(2)The public trustee is entitled to costs and allowances for the acting or representation as if the official solicitor or lawyer were a lawyer in private practice and not a public service officer.(3)For taxing any bill of costs, fees for a barrister are to be allowed the public trustee and no item is to be disallowed (whether for barristers’ fees or otherwise) merely because the fees were not paid before taxation.(4)The rules relating to costs in any court apply subject to this section.
18 Accounting
If because of any act or omission on the part of the public trustee or any of the public trustee’s officers or agents any money loss is incurred or any extra payment has been made, the amount involved may, with the approval of the Minister, be charged to profit and loss or any reserve fund of the Public Trust Office without further appropriation than this Act.
19 Common fund and investment thereof and of other moneys
(1)Subject to this Act—(a)all moneys vested in or coming into the hands of the public trustee, howsoever arising, and whether directed to be invested or not, shall be held in 1 or more common funds (the common fund) and shall be invested by the public trustee; and(b)income earned by such investments shall be paid into the common fund; and(c)interest, at a rate to be from time to time prescribed, shall be credited at least annually, on a date to be from time to time fixed by the public trustee, to the respective estates having moneys in the common fund; and
(d)investments may be made from the common fund in any of the investments in which under the Trusts Act 1973 trustees are authorised to invest trust funds and also in any class of investments from time to time approved for the purposes of this Act by regulation; and(e)investments made from the common fund by virtue of this subsection shall not be made on account of or belong to any particular estate under administration.(2)The public trustee may—(a)invest moneys belonging to an estate under administration in any investment which is authorised by the provisions of a governing trust instrument and, subject to the provisions of any such trust instrument, retain in the form in which it then is any investment existing when the trust becomes vested in the public trustee; and(b)invest moneys held by the public trustee on trust for any person under a legal disability or, when for special reason the public trustee considers it desirable that moneys should be separately invested, moneys belonging to any other estate under administration, in any investment in which trustees are authorised by law to invest trust funds; and(c)when the public trustee is the committee or manager of an estate under management or the manager of the estate of a prisoner under part 7 continue investments in the form in which they are when the public trustee becomes authorised to manage that estate, reinvest from time to time in similar investments and exercise, as fully and effectually as that person could do if the person were not under a legal disability or a prisoner to whom part 7 applies and if the person’s estate was not being managed by the public trustee, all rights of that person as the holder of any stock or other investment, including the exercise, in whole or in part, of any rights arising thereout to acquire in the name of that person any stock, and for such purpose apply moneys belonging to that person, or sell or dispose of any of such last mentioned rights.(3)When an investment is made or retained in accordance with the provisions of subsection (2)—(a)it shall not form part of the common fund but shall belong to the particular estate under administration to which the moneys invested or the investments retained belong; and(b)income earned by it shall be credited to the particular estate under administration; and(c)any loss or deficiency in respect of it or of the moneys received therefrom or realised thereby shall be borne by the estate under administration.
19A Application of particular amounts
(1)This section applies to—(a)fees and charges received by the public trustee; and(b)interest earned on amounts invested under section 19 and paid into the common fund.(2)The public trustee must apply the amounts—(a)first, to pay interest to the estates whose funds formed part of the amounts invested; and(b)after paying the interest, towards operating and capital expenses of the public trust office.
20 Advances in course of administration
(1)The public trustee may make advances out of moneys standing to the credit of the common fund for the purposes of any estate under administration or about to be administered by the public trustee.(2)Where an estate is under administration and there is not sufficient money available to make payments required to be made on account of such estate, whether to the persons entitled thereto or to a share or interest therein or otherwise, the public trustee may advance and pay for or on account of such estate any sum of money (not exceeding in the whole one-half the total value of the property in the estate) which the public trustee is authorised or required to pay.(3)Where a person entitled to a share in an estate under administration desires an advance against the person’s share, the public trustee may make advances to that person not exceeding in the whole one-half of the value of the share as estimated by the public trustee.(4)All amounts owing in respect of sums so advanced, with all interest thereon, shall be a first charge upon the estate under administration or the share advanced against, as the case may be, and shall bear interest compounded on quarterly rests at the rate of 12% per annum or such other rate as may from time to time be prescribed in substitution therefor or at such lesser rate as may be fixed by the public trustee in the particular case.(5)All interest received under this provision shall be paid into the common fund.(6)A certificate signed by the public trustee stating the amount owing for advances and interest on a specified date by the estate under administration or person to whom the advances were made and the share (if any) against which they were made shall be sufficient evidence of the facts until the contrary is proved.
21 Public Trust Office Investment Board
(1)All investments of the common fund shall be controlled and managed by a board to be called The Public Trust Office Investment Board (the board).(2)The board shall consist of at least 3 members 1 of whom shall be the public trustee and the others of whom shall be appointed by the Governor in Council for such term as the Governor in Council shall specify in the appointment in each case and 1 of whom shall be an officer of the department administered by the Treasurer.(3)At a meeting of the board 2 members thereof shall form a quorum.(4)The chairperson of the board shall be appointed by the Governor in Council from among the members thereof and shall preside at all meetings of the board at which the chairperson is present and in the chairperson’s absence or during any vacancy in the office of chairperson such 1 of those present shall preside as they shall choose between them.(5)Subject to subsection (6), the public trustee shall—(a)not invest funds from the common fund without the approval of the board first had and obtained; and(b)satisfy the board that every proposed such investment of funds by the public trustee is legally authorised and that the public trustee has done and executed or caused to be done and executed all such acts, matters, and things as the public trustee is, by this Act or by any other Act or law or by any relevant instrument, required to do and execute preliminary to such investment; and(c)account to the board continuously for every such investment made by the public trustee and produce to the board from time to time and at all times all such accounts, securities, and other documents, and all such information and reports as will enable the board to examine the then state of any such investment made by the public trustee or as may be required by the board; and(d)in the case of any such investment upon the security of a mortgage or other charge over property—report to the board any breach of any term or condition of such mortgage or charge and exercise against a defaulting mortgagor all such rights and remedies had and possessed by the public trustee as the board shall direct, and account to the board for the due and proper exercise by the public trustee of all such rights and remedies.(6)Notwithstanding anything hereinbefore contained this section shall not apply to the following matters, namely—(a)any advance made or to be made by the public trustee under and pursuant to the provisions of section 20 from moneys standing to the credit of the common fund in respect of any estate under administration or about to be administered by the public trustee;(b)any investment from time to time made by the public trustee—(i)in debentures issued by a Crown corporation or State instrumentality, which corporation or instrumentality is specially authorised to issue such debentures by the Act constituting such corporation or instrumentality, or in any loan issued by the Government of the Commonwealth or of any State; or(ii)on account of a particular estate, whether made pursuant to the provisions of section 19(2) or otherwise in exercise of the public trustee’s powers; or(iii)of a portion of the unclaimed moneys fund as and when directed by the Governor in Council so to invest the same under and in accordance with the provisions of section 25; or(v)on interest bearing deposit with a financial institution; or(vi)with a dealer in the short-term money market, approved by the Reserve Bank of Australia as an authorised dealer, who has established lines of credit with that bank as a lender of last resort; or(vii)prescribed by regulation.
22 Temporary advances to the public trustee
(1)In order to admit of the moneys in the common fund being kept closely invested or to provide moneys wherewith to make advances in connection with estates under administration, the public trustee may, with the approval of the Minister in each case, obtain advances from the Treasurer or other source by hypothecating securities held by the public trustee in respect of investments in the common fund.(2)Every such advance shall be for such period and at such rate of interest as are approved by the Minister.(2A)However, on the expiration of such period the advance may be renewed for the same or any other period, and so on from time to time.(3)The total amount of advances to the public trustee under this section outstanding at any 1 time shall not exceed $1,000,000.
23 Deficiency in common fund
If the common fund is insufficient to meet the lawful claims thereon, the Treasurer shall, without further appropriation than this Act, pay such sums out of the consolidated fund as are necessary to meet the deficiency.
24 Inspection and audit of books of public trustee
(1)The Minister, and any officer of the Minister’s department authorised by the Minister in writing, shall have at all times access to all the books, accounts, documents, and papers in the Public Trust Office, and the public trustee shall at all times furnish to the Minister all such information as the Minister requires.(2)The Auditor-General Act 2009 shall apply to the public trustee and the Public Trust Office.
25 Unclaimed moneys fund
(1)The public trustee must continue to keep the account called the Unclaimed Moneys Fund (the fund).(2)As soon as reasonably practicable after the end of each financial year, the public trustee must pay to the consolidated fund all amounts that, as at the end of the financial year, have been credited to the unclaimed moneys fund for 6 years or more.(3)The Minister may direct that the whole or part of amounts credited to the fund that have not been paid to the consolidated fund be invested in the following investments—(a)investments mentioned in section 21(6)(b)(i);(b)investments that may be prescribed by regulation.(4)Interest on the investments must be paid to the consolidated fund.
25A Budget and performance
(1)For each financial year, the public trustee must develop and submit to the Minister a budget not later than the day the Minister directs.(2)During a financial year the public trustee may develop and submit to the Minister amendments of its budget.(3)The public trustee must not spend in a financial year more than the amount allowed in its budget for the financial year, unless the Minister approves a higher amount.
26 Balance sheet and accounts to be laid before Parliament
The public trustee shall in every year not later than 31 August or the later day the Minister, by written notice, specifies transmit to the Minister, to be laid before Parliament—(a)a profit and loss account setting forth the total revenue and expenditure of the Public Trust Office during the year ended on 30 June last preceding or such other date as may be prescribed; and(b)a balance sheet setting forth the assets and liabilities as at 30 June last preceding or such other date as may be prescribed; and(c)a statement showing the position and investment of the unclaimed moneys fund.
Part 3 Appointment as trustee or personal representative
27 Rights and duties to which public trustee may be appointed
(1)Where any person or corporation may be appointed or act as a trustee, executor, administrator, next friend, guardian, committee, agent, attorney, liquidator, receiver, manager or director or to or in any other office of a fiduciary nature the public trustee may be so appointed or may so act.(2)Where an official liquidator may be appointed liquidator by a court or judge, such appointment may be made of the public trustee where, in the opinion of the court or judge, there are special reasons for so doing.(3)Notwithstanding subsections (1) and (2), the public trustee’s appointment to any office or capacity shall, except where by this or any other Act it is otherwise provided, be subject to the public trustee consenting thereto.(4)The public trustee may charge and receive such fees and remuneration as are fixed under this Act, or if not fixed under this Act, as may be allowed by law, for acting in any capacity to which the public trustee may be appointed under this section.
27A Joint administration etc. by public trustee
(1)The public trustee may apply under section 29 or 31(1) for an order to administer an estate, and may be granted the order, jointly with someone else.(2)The public trustee may file an election under section 30 to administer an estate jointly with someone else.(3)The court may, with the public trustee’s agreement, consent under section 31(2) to the appointment of the public trustee to administer an estate jointly with someone else.(4)If the public trustee is appointed under section 31(2) to administer an estate and the consent of the court is unnecessary, the public trustee may, when filing in the court an election to administer, elect to administer the estate jointly with someone else.(5)The court may, with the public trustee’s agreement, appoint the public trustee under section 31(3) to administer an estate jointly with someone else.(6)The public trustee may act under section 35 jointly with someone else.(7)This section does not limit the application of this Act when the public trustee acts alone.(8)If the public trustee jointly administers an estate or otherwise acts with someone else, this Act applies with all necessary changes and any changes prescribed by regulation.
28 The public trustee may hold as trustee for the Crown
(1)If in the opinion of the Minister it is expedient that any moveable or immoveable property within or outside Queensland, which is wholly or partly used or held, or which it is proposed shall be wholly or partly used or held, by the Government of the State for governmental, administrative or departmental purposes, should be held by the public trustee for and on behalf of Her Majesty in right of the State, the Minister may authorise and direct the public trustee to purchase, accept, hold or take that property to be held upon trust for Her Majesty in right of the State.(2)It shall not be necessary for the public trustee to take or hold any such property outside the State in or by any name, style, title, or description other than The Public Trustee of Queensland.(3)Any person desirous of surrendering to the Crown any freehold land in Queensland which is under the Land Title Act 1994 may, with the approval of the Minister, in lieu of transferring the land to Her Majesty, transfer such land to the public trustee to be held upon trust as set forth in this section.(4)Freehold land under the Land Title Act 1994 accepted or taken by the public trustee under subsection (1) may be transferred under the Land Title Act 1994 to the public trustee as trustee under this section.(5)If in the opinion of the Minister it is desirable that the legal estate in any Crown land held or used for governmental, administrative or departmental purposes should be held by the public trustee, the Minister may grant such land to the public trustee in fee simple to be held upon trust as set forth in this section, and issue the deed of grant thereof in the name of the public trustee as trustee under this section.(6)The public trustee may execute all such deeds, conveyances, assurances, transfers, documents and other writings as may be necessary or expedient for the due execution by the public trustee of any trust declared by this section, and no person dealing with the public trustee in relation to the execution of any such trust shall be bound to inquire whether the public trustee is acting in the proper execution of the public trustee’s powers hereunder.(7)The Minister may give to the public trustee such authorities and directions to purchase, accept, hold and deal with property to which this section applies as the Minister shall think fit, including either general directions as to the manner in which the public trustee shall exercise powers and perform duties as trustee in relation to any class or classes of matters or property, or directions, either specific or general, as to the manner in which the public trustee shall exercise powers or perform duties in respect of any particular matter or property, including a direction that the public trustee shall deal with such property in accordance with the direction of a specified Minister or other public authority, and the public trustee shall hold and deal with such property in accordance with such authorities and directions.(8)When acting as trustee under this section the public trustee shall represent the Crown and shall be a Crown instrumentality, and shall have and may exercise all the powers, privileges, rights and remedies of the Crown.
29 Circumstances in which public trustee may apply for order to administer
(1)Where any person has died, whether before or after the commencement of this Act, being at the time of the person’s death domiciled in Queensland or leaving property situated in Queensland and a grant of administration has not been made in Queensland to any other person, the public trustee may apply for and be granted an order to administer the estate of such person—(a)where the deceased is intestate; or(b)where the deceased left a will and—(i)the public trustee was appointed executor thereby; or(ii)the executors appointed thereby have renounced; or(iii)there is no executor willing and capable of acting in the execution of the will resident in Queensland; or(iv)every executor appointed by the will has died; or(v)no person has applied for probate or letters of administration with the will annexed within a period of 3 months from the death of the deceased; or(vi)the property or any portion thereof is liable to waste, and the executor is not known or can not be found.(2)Where part of an estate of a deceased person in respect of which a grant of administration has been made in Queensland is unadministered and the executor or administrator—(a)has died; or(b)has become bankrupt or incapable; or(c)is absent from Queensland or can not be found;the public trustee may apply for and be granted an order to administer the estate left unadministered.
(3)On an application under subsection (1)(a) no further proof of the death and intestacy of the deceased shall be required than an affidavit that, after due inquiries, the public trustee is satisfied of the death and intestacy.(4)On an application under subsection (1) or (2)(a) the public trustee shall be entitled as of right to an order to administer.(4A)However, if some person who would be entitled to a grant of administration applies therefor the court may make a grant of administration to such person.(5)It shall not be necessary or required, unless the court for special reason in a particular case so directs, that the public trustee give notice of such application generally or to any person, except in the case of an application under subsection (1)(b)(v) or an application under subsection (2)(b).(5A)However, the court may in either of such last mentioned cases dispense with any notice which would otherwise be required.(6)Notwithstanding any other provisions of this section—(a)the court may, in any case where it might make a limited grant of administration to any other person, grant to the public trustee an order to administer similarly limited; and(b)the public trustee may, in any case in which the public trustee is entitled to an order to administer, apply for and obtain a grant of probate or of letters of administration as the case may be, or may propound a will in solemn form of law.
(7)Where the public trustee is granted an order to administer with a will whereby any other person was appointed both executor thereof and a trustee thereunder, the public trustee shall, while the order to administer remains in force, by virtue thereof and without further appointment, be deemed to be appointed a trustee under the will in the place of such person.(8)In any case where the public trustee, pursuant to the provisions of this Act, applies for an order to administer or for a grant of probate or of letters of administration, or propounds a will in solemn form of law, the public trustee shall, unless the court otherwise orders in exceptional circumstances, be entitled to the public trustee’s costs out of the estate and not be liable for the costs of any other person.
30 Election to administer estates under $150,000 without grant of administration
(1)Where any person dies (whether before or after the commencement of this Act) domiciled in Queensland or leaving property situated in Queensland, and the gross value of the person’s property in Queensland which would pass to the person’s personal representative is estimated by the public trustee at the time of the election hereinafter mentioned not to exceed $150,000, and there is no grant of administration in force in Queensland, the public trustee may, in all cases where the public trustee is entitled to obtain an order to administer, in lieu thereof file in the court an election, in the form approved by the public trustee, to administer the estate with the will or on intestacy as may be the case.(2)Where a grant of administration has been made in respect of the estate of a deceased person and the person to whom such grant was made has died, whether before or after the commencement of this Act, leaving part of the estate unadministered in Queensland, and the gross value of such part of the estate so left unadministered in Queensland is estimated by the public trustee at the time of the election hereinafter in this subsection mentioned not to exceed the sum of $150,000, and no person has since the death of the last executor or administrator obtained a grant of administration de bonis non in respect of the estate, the public trustee may, in all cases where the public trustee would be entitled to obtain an order to administer, in lieu thereof, file in the court an election, in the form approved by the public trustee, to administer the estate so left unadministered.
31 Appointment of public trustee in the place of existing personal representative
(1)Where a grant of probate or of letters of administration has been made to any person and part of the estate the subject of such grant is unadministered, the public trustee or any person interested may apply to the court, on the ground that it is for the benefit of any person who is or may be found to be interested in such estate that the existing executor or administrator be removed and that the estate be administered by the public trustee, for the granting of an order to administer to the public trustee and the court may make such order on the application as it thinks fit.(1A)The applicant, before making any such application, shall give 7 days notice thereof to the existing executor or administrator.(1B)However, for any reason which it considers sufficient the court may hear the application notwithstanding that such notice has not been given.(2)With the consent of the court, executors or administrators (with or without a will annexed) may, unless expressly prohibited, appoint the public trustee respectively executor or administrator, notwithstanding that any consent which would otherwise be requisite has not been obtained.(2A)However, if the gross value of the assets requiring administration, as estimated by the public trustee, does not exceed $150,000 and, should the consent of any person to the appointment of an executor or administrator be requisite, that such consent has been obtained, it shall not be necessary to obtain the consent of the court.(3)Where there are more executors or administrators than 1, the court may, on the application of any of such executors or administrators, appoint the public trustee respectively executor or administrator, notwithstanding that any consent which would otherwise be requisite has not been obtained.(4)When the court consents to an appointment pursuant to subsection (2) or makes an appointment pursuant to subsection (3), an order to administer shall be made in favour of the public trustee.(4A)When an appointment is made, pursuant to subsection (2), without the consent of the court, the public trustee shall file in the court an election to administer, in the form approved by the public trustee.(5)This section applies whether or not the date of the will (if any) or of the death of the deceased person or of the grant of probate (if any) or of the letters of administration is before or after the commencement of this Act.(5A)Subsections (2) to (3) apply to an executor whether or not the executor has obtained a grant of probate.(6)Whenever under this section any executor or administrator with the will annexed appoints the public trustee executor or administrator, the public trustee shall, by virtue of the appointment, be also the trustee in respect of any trust created by the will—(a)where the executor or administrator was trustee; or(b)where there was no trustee in existence;at the date of the appointment of the public trustee.
(7)On any application under this section the court may make such order or orders as it thinks fit.
32 Effect of order to administer
(1)Subject to this Act, when an order to administer is made the public trustee shall have the same powers over the property of the deceased as the public trustee would have had if probate or letters of administration of such property had been granted to the public trustee in the like case and the same consequences shall follow in other respects, and any reference in any other Act or law to probate or letters of administration or a grant of administration or representation or other like expression shall, unless the context otherwise requires, be construed to include a reference to an order to administer.(2)Upon obtaining an order to administer, the title of the public trustee to any property in the estate and to the rents and profits thereof, shall relate back to and be deemed to have arisen upon the death of the owner of such property as if there had been no interval of time between such death and appointment.(3)However, any acts lawfully done by a prior administrator shall be as valid and effectual as if they had been done by the public trustee, and any rights exercisable by such prior administrator shall vest in and be exercisable by the public trustee.
33 Consequences of election
(1)On an election to administer being filed the public trustee shall be—(a)the administrator in intestacy or with the will;(b)the administrator of the estate or of the estate left unadministered;as the case may be, and the filing of an election shall, for the purposes of any Act or law, have the same effect as the making by the court of an order to administer.
(2)If, after filing an election to administer, the gross value of the property to be administered is found to exceed the sum of $180,000, the public trustee shall, as soon as practicable thereafter, file in the court a memorandum under the public trustee’s hand stating the fact, and proceed in the ordinary manner to obtain an order to administer.(3)If, after filing an election to administer, the public trustee finds—(a)that the deceased person who was supposed to have died intestate has died testate; or(b)that the document annexed to the election as the testator’s last will is not the last will or is not the sole last will of the testator, but has been superseded by a later will which is believed to be the testator’s last will; or(c)that the deceased person who was supposed to have died testate has died intestate, and that the document annexed to the election as the testator’s last will has no testamentary validity or effect; or(d)that the said election is invalid, ineffective or for any other reason ought not to have been filed;the public trustee shall, as soon as practicable, file in the court a memorandum under the public trustee’s hand stating the facts and revoking the election, whereupon the election shall be revoked accordingly and the public trustee shall be at liberty to file a fresh election to administer under this section or otherwise proceed in accordance with the facts and the provisions of this section shall apply to any such fresh election as if it had been the election which had originally been filed.
34 Court may order administration of estate by public trustee instead of by court
Where proceedings have been instituted in the court for the administration of an estate, and by reason of the small value of the estate it appears to the court that the estate can be more economically administered by the public trustee than by the court, or that for any other reason it is expedient that the estate should be administered by the public trustee instead of the court, the court may order that the estate shall be administered by the public trustee, and thereupon (subject to any directions by the court) this section shall apply as if an order to administer had been granted to the public trustee.
35 Administration of small estates
Where the value of the assets of the estate of a deceased person coming into the hands or under the control of the public trustee in respect of which estate the public trustee would be entitled to file an election does not, apart from the value of any interest in land, exceed $75,000, the public trustee may apply such assets in or towards the payment of any claim of which the public trustee has knowledge or to the persons entitled thereto, without filing an election to administer and it shall not be necessary for the public trustee to cause advertisements to be published calling on creditors to prove their debts.
36 Powers of public trustee pending grant
(1)When any person dies or has heretofore died, whether testate or intestate, and whether the public trustee is entitled to a grant of an order to administer or some person other than the public trustee is appointed executor or is entitled to letters of administration, the public trustee may, until administration is granted, exercise with respect to the estate of the deceased person all such powers and authorities and do all such acts and things, other than the distribution of any part of the estate to the person beneficially entitled, as the public trustee would have or could exercise or do if the deceased had died intestate and the public trustee had obtained an order to administer.(1A)However, the public trustee may only sell, exchange, mortgage or partition a part of the property, or let or lease a part of the property (other than under a periodic tenancy from year to year or for a shorter period or a fixed period of not longer than 1 year), with the court’s leave.(1B)In subsection (1)—acts and things includes withdrawing an amount from an account of the deceased person with a financial institution.(2)Despite subsection (1A), the public trustee may sell, without the court’s leave, a part of the personal estate if the public trustee considers—(a)that the property is perishable, likely to deteriorate or likely to decrease substantially in value if kept; or(b)that, for another reason, it is in the estate’s interest that the public trustee immediately dispose of the property.(3)Before the public trustee first acts under this section, the public trustee shall give notice in writing to any person in Queensland known to the public trustee, who (not being under a legal disability) would be entitled to obtain probate or letters of administration, informing such person that the public trustee intends to so act unless such person forthwith proceeds to apply for probate or letters of administration.(4)If such person does not, within 21 days after the posting of such notice, give notice, in writing, to the public trustee that the person intends to apply for probate or letters of administration, or if such person gives such notice but fails for 14 days thereafter to apply therefor, or makes such application and it is refused, then, unless the court otherwise orders, the public trustee may proceed to exercise any of the powers and authorities given by this section.(5)If more persons than 1 are entitled to take out probate or letters of administration, it shall be sufficient to give notice to 1 of such persons only.(6)Where it is not actually known to the public trustee that there is in Queensland any person entitled to obtain probate or letters of administration or where, in the opinion of the public trustee, there are circumstances of emergency, the public trustee may exercise the powers and authorities given by this section without giving such notice.(7)When the public trustee is acting under this section—(a)the public trustee is not to be deemed to be or be liable as an executor de son tort; and(b)the public trustee shall have the same rights to be paid or to retain commission and other charges out of the estate of the deceased as if an order to administer had been granted to the public trustee; and(c)all expenses incurred by and all payments due to the public trustee shall be a first charge upon the property of the deceased person; and(d)it shall not be necessary for the public trustee to register with any registering authority the public trustee’s authority so to act, and the recital by the public trustee in any instrument that the public trustee is acting pursuant to this section shall be sufficient evidence of the public trustee’s authority to execute that instrument.
37 Power of public trustee in relation to devises in certain cases
Where the public trustee is, pursuant to any provision of this Act, administering the estate or part of the estate of a deceased testator, and the testator has by the testator’s will devised land and—(a)the public trustee is satisfied that the debts and liabilities of the testator or the funeral expenses of the testator or the expenses of administration for which the land is liable could not be fully satisfied without recourse to the land; or(b)the devise is (absolutely or subject to any condition and whether such devise takes effect immediately or subject to any prior interest) to an infant, or a person residing beyond the State, or whose whereabouts are unknown, or as to whom it is not known whether the person is alive or dead, or who has died and who has no person acting in the administration of the person’s estate; or(c)the testator had before the testator’s death sold or disposed of the land but had not transferred the land in pursuance of such sale or disposition;the public trustee shall, notwithstanding the provisions of any law to the contrary, be entitled to have transmission of the said land entered up to the public trustee as trustee in the proper register, and shall have the same powers and authority to deal with that land as though the same had by the will of such testator been devised to the public trustee upon trust and, without limiting the powers of the public trustee in other respects, the public trustee shall, notwithstanding any provision of the testator’s will to the contrary, have power to raise such sum or sums of money as the public trustee considers sufficient for the purpose of discharging any debts or liabilities charged upon the testator’s estate or for the payment of which such estate may be made available, by mortgage or by sale or by lease, at the best rent obtainable and for such duration as the public trustee thinks proper, of the land so devised or any part thereof.
38 Public trustee may be appointed new or additional trustee
(1)The public trustee may be appointed as a new trustee or as an additional trustee in the same cases, in the same manner and by the same persons or court as if the public trustee were a private person.(1A)However, the public trustee shall not be appointed as a new or additional trustee otherwise than by a court, or pursuant to the order of a court, where the trust instrument contains a direction to the contrary.(2)When the public trustee is appointed under this section as a new or additional trustee, the public trustee shall, subject to this Act, have the same powers, authorities and discretions and act as if the public trustee had been originally appointed a trustee.
39 Appointment of public trustee as sole trustee
(1)Notwithstanding the fact that any governing instrument may provide for or direct the appointment of 2 or more trustees, trustees appointed under such instrument, including personal representatives whose duties continue in the nature of a trusteeship after their administration is closed, or any other person or persons having the power to appoint new trustees thereof may, unless expressly prohibited, appoint the public trustee as sole trustee under the instrument without obtaining the consent of the court, and the public trustee may in any such case lawfully act as sole trustee.(2)Where there are more trustees, or persons having power to appoint a trustee, than 1, any 1 trustee, or any 1 of those persons having power to appoint a trustee, may apply to the court to have the public trustee appointed sole trustee.(3)Where to the appointment of a trustee the consent of any person is requisite, and such person refuses to consent to the public trustee being appointed, or where the person to consent is a person under a legal disability, or is absent from Queensland, an appointment of the public trustee may be made without such consent if the court consents thereto.(4)On any application under this section the court may make such order or orders as it thinks fit.
40 When public trustee being custodian trustee or statutory trustee may act as general trustee
(1)Where by reason of any of the events enumerated in section 12(1)(a) to (h) of the Trusts Act 1973 there is no managing trustee capable of acting in the execution of a trust of which the public trustee has been appointed custodian trustee under the provisions of section 19 of that Act, the public trustee may act as managing trustee and shall have all the powers given to managing trustees by section 19 of the Trusts Act 1973 until such time as new managing trustees are appointed, but it shall not be obligatory for the public trustee to so act.(2)Nothing in this section affects the power of any court or person to appoint new managing trustees, but no such appointment shall take effect until notice thereof in writing is given to the public trustee.(3)Where the public trustee, apart from the provisions of this subsection, is a statutory trustee within the meaning of the Trusts Act 1973, the public trustee shall, until some other person becomes trustee, have all the powers given to and may in every respect act as a trustee who is not a statutory trustee.
41 Advisory trustees
(1)In the administration as trustee of any estate under administration the public trustee may act with an advisory trustee or advisory trustees as herein provided.(2)An advisory trustee or advisory trustees may be appointed—(a)by order of the court made on the application of any beneficiary or of any person on whose application the court would have power to appoint a new trustee; or(b)by the trust instrument; or(c)by any person having power to appoint new trustees.(3)Where the public trustee acts with an advisory trustee, the trust property shall be vested in the public trustee and the public trustee shall have the sole management and administration thereof as fully and effectually as if the public trustee were the sole trustee.(3A)However—(a)the public trustee may consult the advisory trustee on any matter relating to the estate under administration; and(b)the advisory trustee may advise the public trustee on any matter relating to the estate under administration.
(4)In cases of difference between the public trustee and an advisory trustee, either the public trustee or the advisory trustee may apply to the court for directions and the directions shall be final, and shall bind both the public trustee and the advisory trustee.(5)No person dealing with the public trustee shall be concerned to inquire as to the concurrence or otherwise of the advisory trustee or be affected by notice of the fact that any advisory trustee has not concurred.(6)The power of appointing a new advisory trustee when exercisable by the continuing advisory trustee shall be exercised by the public trustee alone, but the public trustee shall have the same power of applying to the court for the appointment of a new advisory trustee as is possessed by any other person.(7)In determining the number of trustees for the purposes of the Trusts Act 1973, an advisory trustee shall not be reckoned as a trustee.(8)A regulation may provide, subject to any provisions of the trust instrument, for the remuneration of advisory trustees out of the estate under administration; but notwithstanding any provisions of the trust instrument or of a regulation, the court may in a particular case make such order as it thinks just, as to what (if any) remuneration any advisory trustee shall receive.
42 Delegation of powers of trustees to public trustee
(1)Where a trustee is empowered to delegate all or any of the trustee’s powers and functions to any person, the trustee may delegate them to the public trustee with the public trustee’s consent and in such case the public trustee may exercise all the powers and functions so delegated.(2)The charges of the public trustee shall be such as are prescribed, or, if not prescribed, as are agreed on by the delegating trustee and the public trustee and, in default of agreement, as are fixed by the court.
43 Legacies or shares of person under a disability etc. may be paid to public trustee
(1)A trustee may, with the consent of the public trustee, pay any moneys or transfer any investment held by the trustee on trust for any infant, whether the interest of the infant therein be vested or contingent, to the public trustee and by writing direct the public trustee to hold such moneys or investments and account therefor according to law.(2)A trustee who is holding any moneys or investment, not exceeding in the aggregate, in the opinion of the public trustee, $75,000 in value, for any person (other than an infant) who, in the opinion of the public trustee, on evidence produced to the public trustee by such trustee or otherwise, is incapable of giving a discharge therefor or whose whereabouts or whether the person is alive or dead are unknown to such trustee may, with the consent of the public trustee, pay such moneys or transfer such investment to the public trustee and furnish such writing as is referred to in subsection (1).(3)The trustee shall furnish the public trustee with a copy of any relevant trust instrument.(4)The writing shall declare whether the moneys or investment is the whole amount or the whole remaining amount or part only of the amount to which such infant or other person is entitled, and how much of the amount is capital and how much is income and, in the case of moneys or investment to which an infant is contingently entitled, the person or persons who will become solely entitled thereto, or so much thereof as remains, in the event of the infant failing to attain a vested interest therein, and the shares and interests of these persons; and such other matters as the public trustee may require.(5)The writing shall be certified correct by the trustee and the public trustee shall not be under any obligation to inquire into the accuracy of the certificate nor shall the public trustee incur any liability through acting upon any statement contained in the writing.(6)Upon subsections (1) to (5) being complied with, the writing shall vest in the public trustee all the powers of the trustee in respect of the moneys or investment, whether conferred by the trust instrument or by statute or in any other manner, in addition to the powers conferred upon the public trustee by this Act (including, in a case to which it is applicable, the provisions of section 19).(7)The public trustee when acting under this section shall be liable only in respect of moneys or investments actually received by the public trustee, and shall not be liable for any act, omission or payment done or made by the public trustee on the faith of the facts stated in the written direction referred to in this section.
44 Public trustee may receive and hold moneys of person under a disability
(1)If any amount of money becomes payable to any person under a legal disability (whether such person is entitled thereto absolutely or is a beneficiary under a discretionary trust for the person’s benefit or the benefit of a number of persons) by the Crown or any person or instrumentality representing the Crown or out of any fund or money, including any provident, superannuation, or benefit fund, by any person or body who or which has control of such fund or moneys, such amount may be paid to the public trustee.(2)The receipt of the public trustee for such amount of money shall be a full discharge as to the amount paid, and such person, instrumentality or body so paying shall not thereafter be accountable therefor or be concerned to see to the application thereof.(3)The public trustee shall hold such amount of money on trust for the person under a legal disability.
45 Administration of benefit funds
(1)Moneys (whether invested or not) in or belonging to any fund raised for the benefit or relief of any person or class of persons, may be paid or transferred to the public trustee to be administered by the public trustee.(2)The public trustee may recognise as a committee any persons whom the public trustee believes to have been appointed or authorised in that capacity by the contributors of a substantial part of the fund, and the public trustee may, if the public trustee thinks it reasonable to do so, accept the terms of the trust as declared by such committee.(3)The public trustee, after conferring with such committee (if any) may apply to the court for directions as to the administration of the fund, including the terms of the trusts thereof, and for that purpose may submit a scheme.(4)The court may approve the scheme with or without modifications as the court thinks fit, or otherwise give directions as to the trusts upon which the fund shall be held and administered.(5)The public trustee may settle a scheme of administration if—(a)where there is a committee—the majority of the members thereof consent and the fund does not exceed $75,000; or(b)where there is no committee—the fund does not exceed $40,000.(5A)The scheme so settled may be incorporated in a declaration of trust by the public trustee, who, for the purpose of such trust instrument, shall be deemed to be the settlor of such trust.(5B)Subject to subsections (5D) to (6) every statement or recital in any such trust instrument shall be sufficient evidence of the truth thereof and the provisions of such declaration of trust shall be final and binding on all persons whether beneficially interested thereunder or otherwise.(5C)The public trustee may modify such scheme if the public trustee thinks fit to do so at any time, but, if there are then, to the public trustee’s knowledge, surviving members of the committee in Queensland, only with the consent of a majority of such members and, upon any such modification being made, the declaration of trust shall be amended accordingly.(5D)The public trustee may revoke any such trust instrument if the public trustee is satisfied that the scheme incorporated therein is affected by fraud, mistake, or misrepresentation by, or by any member of, the committee or by any agent, servant, or representative of the committee or of any member thereof and upon such revocation may settle another scheme of administration in respect of the fund in question and incorporate such scheme in a declaration of trust.(5E)However, on the application of the committee, the court may review any action of the public trustee pursuant to subsection (5D) and may make such order as it considers desirable in the circumstances.(6)On the application of the public trustee, or of the Attorney-General on the relation of any person appearing to have a reasonable interest in the manner in which the fund is applied or administered, the court may, at any time, vary the scheme or give directions on any point or question relating to the scheme or the fund.
46 Consequences regarding previous personal representatives or trustees on public trustee becoming authorised
(1)Where, pursuant to the provisions of this part, the public trustee becomes executor, administrator or trustee in place of another person, such person shall, if the person has not previously done so, thereupon cease to hold such office.(2)Notwithstanding the provisions of any other Act, or rule, or law to the contrary, the public trustee upon becoming executor, administrator or trustee pursuant to the provisions of this part shall not be obliged to inquire into or to institute any proceedings in respect of any acts or omissions or distributions done or omitted or made by any other person whether as executor, administrator, trustee or otherwise at any time before the public trustee became the executor, administrator or trustee as aforesaid.
Part 4 Powers as personal representative, trustee etc.
47 Application of part
This part shall apply whether or not a contrary intention is expressed in any instrument creating or governing the trust.
48 General powers
Notwithstanding the provisions of any other Act, the public trustee when acting as a trustee, may at the public trustee’s discretion, in addition to the powers which the public trustee has under any other Act—(a)enter into any sharefarming agreement for any period not exceeding 3 years and renew any such sharefarming agreement; and(b)subject, where the sum to be expended exceeds $75,000 in the aggregate, to the sanction of the court, from time to time expend from the capital of any estate under administration such sum as may reasonably be required—(i)in the purchase of livestock, machinery, plant, implements and other chattels; or(ii)in any undertaking or venture for the benefit or better management of the property, alone or in conjunction with others; and(c)open any separate account at a financial institution and of such nature for the purposes of any estate under administration as the public trustee thinks convenient; and(d)surrender or concur in surrendering any lease, and accept a lease; and(e)exercise, in whole or in part, as fully and effectually as if the public trustee were the absolute owner thereof, all rights arising out of any investment, including rights to acquire any stock, and for that purpose apply funds belonging to the estate under administration; and(f)grant powers of attorney to any person in or out of Queensland to do anything which the public trustee, if personally present, could do; and(h)with the approval of the Minister sell or otherwise deal with land forming part of the estate of a person in respect of which the Crown has any right by way of escheat or devolution or as bona vacantia; and(i)appropriate any part of the property in or towards satisfaction of any legacy payable thereout, or in or towards satisfaction of any share thereof (whether settled, contingent or absolute), to which any person is entitled, but so that—(i)the appropriation shall not be made so as to affect adversely any specific gift; and(ii)before any such appropriation is effectual, notice thereof shall be given to—(A)all persons, not under a legal disability, who are interested in the appropriation and whose whereabouts are known to the public trustee; and(B)a parent or guardian of any infant who is interested in the appropriation; and(C)any person, other than the public trustee, having the care and management of the estate of any person who is not of full mental capacity and who is interested in the appropriation; and(iii)the public trustee may alter or amend such appropriation and notice within 1 month from the giving of notice; and(iv)any such person to whom such notice has been given may—(A)within 1 month after receipt of the notice or of the notice of amendment where amendment is notified; or(B)upon the person’s application to the court within that month, within such extended period as the court may allow;apply to the court to vary the appropriation, and the appropriation shall be conclusive save as varied by the court; and
(v)when the whereabouts of any person interested are unknown to the public trustee—the period of 1 month within which such person may apply for the variation of the appropriation may be extended by the court for such period as the court thinks fit on the application of the public trustee or of any person interested; and(vi)where the court is satisfied there are exceptional circumstances, it may, on the application of the public trustee, vary the appropriation at any other time.
49 Provision of dwelling house
(1)The public trustee may expend from the capital of an estate under administration such sum or sums as the public trustee thinks necessary for any 1 or more of the following purposes—(a)the purchase of a dwelling house in Queensland or elsewhere;(b)the purchase of land in Queensland or elsewhere and for the erection thereupon of a dwelling house;(c)the erection of a dwelling house;(d)effecting such alterations and repairs to a dwelling house as the public trustee thinks fit;(e)the purchase for a dwelling house of such furnishings and fittings as the public trustee thinks fit;for the use of any beneficiary in the estate or of any person having a personal licence to reside (whether for life or any lesser period) on land comprised in the estate; and may permit the beneficiary or that person to reside therein upon such terms and conditions consistent with the trusts on which the estate is held and the extent of the interest of the beneficiary or that person as the public trustee thinks fit.
(2)When the public trustee purchases a dwelling house or other land in exercise of the power conferred by subsection (1), the public trustee shall not be chargeable with breach of trust by reason only of the relation borne by the purchase price to the value of the property at the time when the purchase was made if it appears to the court that—(a)in making the purchase the public trustee was acting upon a report as to the value of the property made by a registered valuer instructed and employed independently of any owner of the property, whether that valuer carried on business in the locality where the property is situated or elsewhere; and(b)the purchase price did not exceed the value of the property as stated in the report or the purchase was otherwise reasonable in all the circumstances; and(c)the purchase was made under the advice of the valuer expressed in the report.(3)The public trustee may retain as an asset of the estate any property purchased under subsection (1), notwithstanding that no beneficiary under the trust is residing in or on the property.(4)In this section—dwelling house includes a home unit, town house or other like residence whether the subject of a lease or of a freehold title or otherwise; and also the curtilage of any such dwelling house.
50 Maintenance of infant beneficiary out of capital
(1)Where an infant is entitled to the capital of an estate under administration or any share thereof, the public trustee may, in such manner as the public trustee in the public trustee’s absolute discretion thinks fit, from time to time out of that capital or share pay or apply for the maintenance, education (including past maintenance or education) or benefit of that infant the whole or any part of that capital or share.(2)Money so paid or applied shall be brought into account as part of the share in the estate to which the infant is or becomes absolutely or indefeasibly entitled.(2A)However, no payment or application pursuant to this section shall be made so as to prejudice any person entitled to any prior life or other interest, whether vested or contingent, in the money paid or applied unless that person is in existence and of full age and consents in writing to the payment or application, or unless the court, on the application of the public trustee, so orders.(3)The power conferred by this section may be exercised—(a)whether the infant is entitled absolutely or contingently on the infant attaining a specified age or on the occurrence of any other event; and(b)notwithstanding that the interest of such infant is liable to be defeated by the exercise of a power of appointment or revocation, or to be diminished by the increase of the class to which the infant belongs; and(c)whether the infant is entitled in possession or in remainder or in reversion.(4)For the purpose of this section the trustee may raise money by sale, mortgage or exchange of the trust property.
51 Public trustee may hold property to which mentally incapable beneficiary is entitled
Where it appears to the public trustee on reasonable grounds that a person who is beneficially entitled to property that is held by the public trustee, including an interest in an estate under administration, is not mentally capable of giving a good discharge for the property and the value of such property as estimated by the public trustee does not exceed $75,000, the public trustee may, subject to any order of the court, retain the property on trust for that person, with power to apply it for his or her maintenance, education and advancement.
52 Co-trustee may receive income
The public trustee may, if the special circumstances of the case appear to the public trustee to render it desirable, pay to the public trustee’s co-trustee or allow the public trustee to receive the income of the estate or any part thereof, on such co-trustee undertaking to apply it in the manner directed by the instrument creating the trust.
53 Priority in insolvent estates
Where the assets available for payment of debts in the estate of a deceased person are insufficient to pay the liabilities in full, the public trustee shall apply the assets in the following priority—(a)the public trustee shall pay all proper expenses attending the due administration of the estate;(b)the public trustee shall pay such funeral expenses as the public trustee considers properly payable out of the estate;(c)the public trustee shall apply the assets available for payment of debts in the same way as if an order had been made for the administration of the estate in bankruptcy at the date of death of the deceased person;(d)the public trustee shall distribute the remaining assets among the persons beneficially entitled thereto.
54 Where residue may be paid to spouse
(1)Where the net residue of an intestate estate under administration does not exceed $30,000 in money or in value as estimated by the public trustee, and the intestate is survived by a spouse, the public trustee may, if the public trustee thinks fit, pay, deliver or transfer the whole of such residue to the spouse.(2)Where, in the case of an intestate estate under administration—(a)the intestate is survived by a spouse; and(b)after a lapse of 3 years from the death of the intestate the public trustee does not know of, and has not by reasonable efforts been able to establish, the existence of any person entitled to share as next of kin in the balance of the residuary estate;the public trustee may pay or transfer to the spouse the share in question but nothing in this subsection shall prejudice the right of any person entitled to such share or any part thereof to recover the same from the spouse.
(3)For subsections (1) and (2), the spouse of the intestate includes a de facto partner of the intestate only if the intestate and the de facto partner had lived together as a couple on a genuine domestic basis within the meaning of the Acts Interpretation Act 1954, section 32DA for a continuous period of at least 2 years ending on the intestate’s death.
(2)If the public trustee makes a submission under subsection (1), the board must—(a)have regard to the submission before finalising the advice or recommendation; and(b)include the public trustee’s submission, or a fair summary of it, with the advice or recommendation.
117ZW Advice or recommendations to Minister if decision not unanimous
(1)This section applies if—(a)the board gives advice or makes a recommendation about a matter to the Minister under this part; and(b)the board’s decision on the matter is not unanimous.(2)The board must include with the advice or recommendation a fair summary of the views of the board members who did not agree with the decision.
117ZX Confidentiality
(1)This section applies to a person who—(a)is or has been—(i)a board member; or(ii)a person assisting the board in the performance of its functions; and(b)in that capacity, has acquired or has access to personal information.(2)The person must not disclose the personal information to anyone else, or use the information, other than under this section.Maximum penalty—200 penalty units.
(3)The person may disclose or use the personal information to the extent the disclosure or use is—(a)necessary to perform the person’s functions under or relating to this part; or(b)otherwise required or permitted under this Act or another law.(4)In this section—disclose includes give access to.
117ZY Protection from liability for giving information
(1)This section applies if a person gives information to the board under section 117ZT.(2)The person is not liable, civilly, criminally or under an administrative process, for giving the information.(3)Also, merely because the person gives the information, the person can not be held to have—(a)breached any code of professional etiquette or ethics; or(b)departed from accepted standards of professional conduct.(4)Without limiting subsections (2) and (3), if the person would otherwise be required to maintain confidentiality about the information under this or another Act, an oath, or a rule of law or practice, the person—(a)does not contravene the Act, oath, or rule of law or practice by giving the information; and(b)is not liable to disciplinary action for giving the information.
117ZZ Protection from liability for board members
(1)A board member does not incur civil liability for an act done, or omission made, honestly and without negligence under this part.(2)If subsection (1) prevents civil liability attaching to a board member, the liability attaches instead to the State.(3)This section does not apply to a board member who is a prescribed person under the Public Sector Act 2022, section 267.Note—
For protection from civil liability in relation to State employees, see the Public Sector Act 2022, section 269.
117ZZA Annual report
(1)As soon as practicable after the end of each financial year, the board must prepare and give to the Minister a written report about the performance of the board’s functions during the year.(2)The report must include details of the following for the financial year—(a)advice given or recommendations made to the Minister under this part;(b)recommendations made to the public trustee under this part.(3)The board must ensure that information included in the report does not disclose personal information.(4)The Minister must table a copy of the report in the Legislative Assembly within 14 sitting days after receiving the report.
Part 9 General
Division 1 Notice and consequences of appointment
118 Notice to be given to public trustee of appointment as trustee
(1)Notice in writing of any appointment of the public trustee as trustee shall, as soon as possible after the trust comes into effect, be given to the public trustee by—(a)any person having possession of the trust instrument or any of the trust property; and(b)any person appointed by a testator to be co-trustee with the public trustee and not renouncing or disclaiming the trust.(2)When a court, except upon the application of the public trustee, makes an order under this Act or having any relation to the public trustee, the person who obtains such order shall forthwith serve upon the public trustee a court office copy (however described) thereof, and shall deliver to the public trustee a statement of the property affected by the order, where that property is situated and by whom it is held, so far as the same is known to that person, and such other information as the public trustee requires.(3)Upon receiving a notice pursuant to subsection (1) or being served with an office copy of a court order pursuant to subsection (2), the public trustee may—(a)require any person in possession of any instrument governing or affecting any property subject to the trust or affected by the court order to produce such instrument to the public trustee and to supply the public trustee with a copy thereof;(b)require any person who appears to the public trustee to be in a position to do so to supply the public trustee with any information in regard to the trust or the property affected by the order, or as to any trustees or persons beneficially interested, or as to any other matters that the public trustee considers it desirable to obtain.(4)Any person who is registered as proprietor or owner (either beneficially or as a trustee) of any property of which the public trustee becomes trustee shall execute any documents and do anything which the public trustee may reasonably require of the person to facilitate the public trustee’s becoming registered as proprietor or owner of or as entitled to deal with any such property.
119 Rejection of appointment
(1)The public trustee may decline, either absolutely or except upon conditions, to accept any trust or to act in any capacity to which the public trustee may be appointed under this Act.(2)If any appointment of the public trustee to any such capacity is not accepted by the public trustee, the public trustee shall give notice thereof to such persons as the public trustee thinks fit.(3)If any property has become vested in the public trustee by virtue of an appointment which is rejected, such property, by virtue of such rejection, shall cease to be vested in the public trustee and be deemed not to have become vested in the public trustee who may execute and do any instruments and things to give effect to such rejection.(4)A notice or certificate of acceptance or rejection of any appointment, in writing signed by the public trustee, shall be conclusive evidence of such acceptance or rejection.
120 Effect of appointment
(1)Subject to this Act, the public trustee, when acting in any capacity under or for the purposes of this Act, shall have the same powers, duties and liabilities and be entitled to the same indemnities and protections as any other person acting in the same capacity and to the powers, indemnities and protections of a trustee and the provisions of all laws in force relating to any such matters, so far as the same do not conflict with this Act, shall apply accordingly.(2)Upon any appointment or other authority of the public trustee as a trustee (other than pursuant to part 6, 7 or 8) taking effect, all the estate in respect of which the public trustee is so appointed or authorised shall, by virtue of such appointment and without other assurances in law, become vested in the public trustee (or, if there is a co-trustee, in the public trustee and the co-trustee), subject to the trusts thereof, and upon the production of a request in writing by the public trustee any registering authority shall register or record such vesting accordingly.
Division 2 Notice, transfer and registration of assets
121 Notice to be given to public trustee of property
When in an estate under administration there is comprised any property which is—(a)in the possession of any person or body; or(b)entered in the books or accounts or otherwise of any person or body; or(c)an interest in the assets of any body, or a right to receive any payments in respect thereof; or(d)stock registered in the books of any body; or(e)a debt owing by any person or body;such person or body shall forthwith give notice to the public trustee of the extent, nature and situation of such property.
122 Public trustee may require property to be transferred and may summon persons for examination
(1)The public trustee may require all persons to deliver, convey, or transfer to the public trustee or to the public trustee and the public trustee’s co-trustee (if any) all property to which the public trustee is or they are entitled.(2)For the purpose of ascertaining whether any person has in the person’s possession or under the person’s control any property which should be so delivered, conveyed, or transferred, the public trustee may institute such inquiries as the public trustee thinks proper and, in addition to any other rights the public trustee may have, shall have power—(a)to require any person to disclose any information on oath or by statutory declaration as the public trustee may decide; and(b)by summons under the public trustee’s hand to require any person to appear before the public trustee or before some person appointed in writing by the public trustee in that behalf at such time and place as is set out in the summons and answer all questions that may be put.(3)The public trustee shall pay or tender to the person so summoned the same amount as such person would have been entitled to had the person been summoned as a witness in proceedings before a Magistrates Court constituted under the Magistrates Courts Act 1921 at the place to which such person has been summoned.(4)Every such summons shall be served by delivering it to the person to whom it is directed or by leaving it at the person’s usual or last-known place of business or abode.(5)Every person served with such summons who, without reasonable justification or excuse, fails to appear according to the exigency of the summons or, being present, refuses to be sworn or to give evidence or to answer such questions as are put to the person by the public trustee or the person so appointed as aforesaid, or to produce any books or documents required by the summons to be produced, commits an offence against this Act.Maximum penalty—20 penalty units.
(6)Without prejudice to the provisions of subsection (5), if any person fails to deliver, convey or transfer all property as provided in subsection (1) or, if in the opinion of the public trustee the procedure in subsection (2) fails to elicit the particulars required, the court may, on the application ex parte of the public trustee, order any person who may be supposed to be in possession of information relevant to the matter under investigation to appear before the court or a Magistrates Court named for the purpose by the court in order to be examined on oath concerning the matter and to produce any documents or for either of such purposes.(7)The court or Magistrates Court may examine such person on oath concerning the matter and may require the person to produce any documents in the person’s custody or power relating thereto, but where the person claims any lien on books or papers the production shall be without prejudice to that lien.(8)If the court or Magistrates Court is of opinion that any such person is possessed of or entitled to any property that should be so delivered, conveyed or transferred to the public trustee or to the public trustee and the public trustee’s co-trustee, the court or Magistrates Court may make an order requiring such person to deliver, convey or transfer all such property within such time as shall be specified in the order.(9)If any person so ordered to appear, after being tendered the same amount as the person would have been entitled to had the person been summoned as a witness in proceedings before a Magistrates Court at the place to which the person has been summoned, fails or refuses to come before the court or Magistrates Court at the time appointed, not having a lawful excuse made known to the court or Magistrates Court at the time appointed and allowed by it, such person shall be guilty of contempt of the court and, in addition to any penalty for which the person may be liable in consequence, may be apprehended and brought before the court for examination.(10)Any person appearing before the court or a Magistrates Court pursuant to any of the preceding provisions, who, without valid excuse, refuses to be sworn or neglects to answer any relevant question put to the person by or on behalf of the public trustee, or who, having been ordered to produce any documents, fails to produce the same without sufficient excuse, or, if so required by the court, to hand such documents over to the public trustee, or who disobeys any order made by the court or Magistrates Court pursuant to subsection (8), shall be guilty of contempt of the court.(11)The court or Magistrates Court, on the application of the public trustee or any other person interested, may order that the costs of and incidental to anything done by the public trustee under this section shall be borne and paid by such person or out of such part of the estate as the court or Magistrates Court may consider just and, failing such order, such costs shall be paid out of the estate as part of the general costs of the public trustee.(12)In this section—documents includes books, papers, deeds, documents, and any writings whatsoever.
123 Moneys and assets of public trustee deemed Crown property
(1)Moneys paid or payable to the public trustee—(a)other than under an order under the Guardianship and Administration Act 2000 appointing an administrator or on behalf of an estate under administration; and(b)for or on behalf of the Crown;shall, for the purpose of all rights, remedies and procedure, be deemed to be property of Her Majesty, and shall be recoverable by the public trustee by action in any court.
(2)Every person into whose hands or under whose control any moneys come which are payable to the public trustee shall pay the same to the public trustee as soon as practicable after their receipt and, until such moneys are paid, that person shall be deemed to be a debtor to the Crown in respect of such moneys.(3)The public trustee shall be deemed to acquire and hold investments made from and assets purchased out of the common fund as the property of Her Majesty and moneys referred to in subsections (1) and (2) paid or payable to the public trustee in respect of such investments shall be deemed to be secured Crown debts and for this purpose the public trustee shall be deemed to be a Crown instrumentality.
124 Searches
(1)The registrar-general and the department within which the Land Act 1994 is administered and every officer of the court and every registrar of titles and other officer having the charge of records which are available for search by the public shall permit the public trustee and any person authorised by the public trustee in that behalf, free of charge, to make searches of and to make copies of or extracts from any documents of title, or records in the department, registry or office relating to any property or matter in which the public trustee is or may be interested.(2)In this section—registrar-general means the registrar under the Births, Deaths and Marriages Registration Act 2023.
125 Registration of stock in name of public trustee
(1)A body shall not be entitled to refuse to enter the public trustee in any register of ownership by reason only that the public trustee is a corporation.(2)Where any estate under administration by the public trustee includes stock in any body, or where, in the administration of any estate, the public trustee acquires stock in any body—(a)notwithstanding any law or provisions affecting the registration of persons holding stock as trustees or in any other representative capacity, the public trustee shall be entitled to be registered as the proprietor of such stock as trustee, or in any other representative capacity, as the public trustee may require; and(b)notwithstanding the provisions of any other Act or law, such body shall not be entitled by reason of its charter, memorandum or articles of association or rules to refuse to so register the public trustee in any such representative capacity; and(c)the liability of the public trustee in consequence of such registration shall be limited to the assets which, at the time when any demand is made for the satisfaction of any such liability, the public trustee holds on the same trusts; and(d)the public trustee, upon such registration, shall, subject to paragraph (c), be deemed to be the owner of any such stock.
126 Notice of trust not constituted only by entry of public trustee on any register of ownership
(1)The entry of the public trustee by that name in a register of members of a company or other register of ownership shall not constitute notice of the existence of a trust.(2)In dealing with property the fact that the person, or 1 of the persons, dealt with is the public trustee shall not, of itself, constitute notice of a trust.
127 Public trustee may bring land under the Land Title Act 1994
When freehold land not under the provisions of the Land Title Act 1994 is an asset in an estate under administration, the public trustee, notwithstanding that such land has not vested in the public trustee, may take proceedings to have such land brought under the provisions of the Land Title Act 1994.
Division 3 Indemnities etc.
128 Remedy against public trustee
(1)Subject to the provisions of this Act, where a person, by an act or thing done or omitted by the public trustee or by any other person acting or, in good faith and within the scope of an apparent authority as an officer or general agent, assuming to act for him or her, sustains any loss or injury which would have entitled such first mentioned person to a remedy in respect thereof if the same had been done or omitted by any other person, such person shall be entitled to the same remedy against the public trustee in the public trustee’s corporate capacity as the person would have been entitled to against any other person in like case, and shall be entitled to be indemnified under this Act.(2)The consolidated fund shall be liable to make good all sums required to discharge any liability of the public trustee in the public trustee’s corporate capacity.
129 Advertisement for claims and payment
(1)The public trustee may, at such times as the public trustee thinks fit, cause advertisements to be published in such newspapers as the public trustee considers suitable, requiring any person having any claim in regard to an estate under administration, whether as creditor or beneficiary or otherwise, to send to the public trustee particulars of such claim on or before a date to be fixed in such notice.(2)After the date fixed by the notice or the last of the notices to be published, the public trustee may distribute or otherwise deal with the estate under administration having regard only to the claims made, whether formally or not, of which the public trustee has notice at the time of distribution and the public trustee shall not, in regard to any part of an estate so distributed or disposed of, be liable to any person of whose claim the public trustee had no notice at the time of the distribution or disposal.
130 Allowance of claims
(1)Subject to the terms of any particular trust, the public trustee may, in the administration of any estate under administration or the performance of any power or duty under this Act, act on information which, though not admissible under any rule of evidence, appears to be credible as to matters of fact.(2)The public trustee may at any time require an affidavit, statutory declaration or other sufficient evidence in support of the claim of any person whether as creditor or as beneficially entitled or otherwise and may refuse payment or transfer until such affidavit, declaration or evidence is produced.(3)The public trustee may allow any claim which is made upon or before the public trustee upon the evidence of the claimant alone or, where the public trustee thinks fit to call for further evidence, upon such further evidence as the public trustee requires.
(4)Acting in good faith, the public trustee shall not be liable for accepting as correct and acting upon any written statement or declaration by any person whom the public trustee believes to be trustworthy, as to any birth, death, marriage or other matter of pedigree or relationship, or other matter of fact, upon which the title to any estate or any part thereof may depend.
131 Barring of claims
(1)Where—(a)the public trustee refuses to recognise, whether wholly or partially, a claim which has been made—(i)to or against an estate under administration or any part thereof; or(ii)against the public trustee on the ground of the public trustee being under any liability in respect of which the public trustee would be entitled to reimbursement out of an estate under administration; or(iii)to the ownership of, or of any interest in, any property which the public trustee has in the public trustee’s possession or under the public trustee’s control and which appears to the public trustee to be an asset in an estate under administration; or(b)any person who has been called upon by notice in writing to lodge such a claim fails for a period of 1 month so to lodge the person’s claim;the public trustee may give notice in writing to the claimant or the person called upon to claim of the public trustee’s refusal to recognise any such claim, in whole or in part, or of the public trustee’s non-receipt of such claim, whichever the case may be.
(2)If such claimant or person called upon does not, within 3 months after the service of such notice, either satisfy the public trustee of the validity of the person’s claim or institute legal proceedings to enforce such claim and serve the public trustee with the originating process, the public trustee may deal with the estate or property without taking into consideration the existence of any such claim, or taking into consideration only that portion of a claim of which the public trustee has not given notice of refusal to recognise, and thereupon the right of such claimant or person called upon to recover the amount of the claim or the portion thereof in respect of which such notice was given shall be absolutely barred as against so much of the estate or property as has been distributed.
132 Cases where estate may be distributed after inquiries
(1)When the public trustee is in doubt as to the existence of any person or any class of persons who, if in existence at some particular time, would be entitled to share in any estate under administration by the public trustee, or as to the identity of any person entitled to any estate or part of an estate, the public trustee may, after such inquiries, including newspaper advertisements, as the public trustee considers necessary, pay, deliver or distribute the assets in the estate having regard only to the persons whose claims have then been established to the public trustee’s satisfaction, or who then appear to the public trustee to have the best claim in law (including, in a case where the existence of a person at a particular time has not been established to the satisfaction of the public trustee, persons who would only have a lawful claim if such first mentioned person was not in existence at such particular time).(2)Nothing in this section shall affect the right of such person or persons to follow the estate or any part thereof into the hands of the persons who have received the same pursuant to such payment, delivery or distribution.
133 Payment of moneys etc. to persons abroad
(1)When any moneys or chattels are payable or deliverable by the public trustee to any person in any place beyond the Commonwealth of Australia, the public trustee may pay or deliver the same to the chief consular officer for that place in Queensland or in the Commonwealth, or to any other official (wherever located) of such place who appears to the public trustee to be a suitable person to receive the same on behalf of the person entitled, and the receipt of such consular officer or other official shall be a sufficient discharge to the public trustee, who shall not be further concerned to see to the application thereof.(2)Where any moneys or chattels are payable or deliverable by the public trustee to any person in any place beyond Queensland, the public trustee may pay or deliver the same to any person who is authorised by the law of that place to manage the estate or affairs of such first mentioned person on the ground of such first mentioned person’s lack of capacity to manage the person’s own affairs.
134 Public trustee may take opinion of court on question arising in course of duties
(1)The public trustee may, without instituting formal proceedings, take the opinion or obtain the direction of the court upon any question, whether of law or of fact, arising under this Act or in the course of the public trustee’s duties.(3)Any such question shall be submitted to a judge of the court in such manner and at such time as the public trustee may direct, and shall be accompanied by such statement of facts, affidavits, documents, and other information as the public trustee may require and the public trustee or anyone authorised by the public trustee shall, if the judge so desires, attend upon the judge at such time and place as the public trustee may appoint.(4)The judge may, before giving the judge’s opinion or direction, require the attendance of, or communication with, any person interested, but no such person shall have a right to be heard unless the judge so directs.(5)The judge shall give the judge’s opinion or direction to the public trustee and, subject to any order of the court in other proceedings formally instituted, the public trustee, acting in accordance with such opinion or direction, shall be fully indemnified.(6)The public trustee shall, upon the request in writing of any such interested person, communicate to the person the effect of such opinion or direction.
135 Validation of acts of public trustee under administration granted in error
(1)All things done or omitted by the public trustee under the bona fide belief, which shall be assumed until the contrary be proved, that a person has died testate or intestate shall, notwithstanding that it is afterwards found that such person had not died at the time in question, or did not die intestate, or that the will is not the valid last will of the deceased, be as valid and effectual as if the public trustee had been lawfully appointed or entitled to act as executor, administrator, or trustee.(2)The public trustee may retain out of the estate any commissions, charges, or expenses, including liabilities incurred, that could have been retained or claimed by the public trustee had there been no error in the grant of probate or administration or other basis on which the public trustee has claimed to administer the estate.(3)In any such case, nothing in this section shall affect or prejudice any right of any person against any other person to whom the public trustee has transferred any property or paid any moneys.
136 Protection of public trustee acting under court order
Where the public trustee acts in good faith under or in pursuance of any judgment, order, opinion or direction of any court or judge, the public trustee shall be deemed, so far as regards the public trustee’s own responsibility, to have discharged the public trustee’s duty in connection with the subject matter of the judgment, order, opinion or direction notwithstanding that the judgment, order, opinion or direction is subsequently invalidated, overruled, set aside, or otherwise rendered of no effect.
Division 4 Miscellaneous
137 Public trustee may sue himself or herself in different capacity
(1)Notwithstanding any rule of law or practice to the contrary, the public trustee, acting in 1 capacity, may maintain proceedings against himself or herself acting in another capacity.(2)However, in every such case the public trustee may apply for and shall in any case follow the directions of the court as to the manner in which the opposing interests are to be represented.
138 Certificate or recital of authority evidence
(1)A certificate under the hand of the public trustee, certifying the nature of the public trustee’s appointment or authority in relation to any estate, property or matter whatsoever, and whether pursuant to any Act or otherwise, and any facts or circumstances on the happening of which such appointment or authority was made or granted or arises, shall be accepted by all courts, officers and other persons, whether acting under any Act or not, as sufficient evidence of all the facts or circumstances therein set forth, without production of any other proof whatever.(2)Such certificate shall—(a)be sufficient for the purposes of bringing any land under the Land Title Act 1994, or of registering the public trustee as owner or proprietor of land under that Act or as lessee or licensee of any land held from the Crown under any lease or licence, or as proprietor of any stock in any body; and(b)be equivalent for registration purposes to a grant of administration or other order or document of appointment and it shall not be necessary to produce, deposit or register such grant of administration, will or other order or document of appointment or any copy thereof.(3)A recital contained in any assurance or instrument under the hand of the public trustee of any matter upon which the public trustee’s authority in relation to such assurance or instrument depends, including the purport of any will or any other document, shall be sufficient evidence thereof, and no-one shall be concerned to inquire beyond such recital.(4)If the public trustee is jointly administering an estate with someone else, the provisions of this section apply equally to matters done jointly with the other person.
139 Service of notices
(2)If a person is absent from the State, a notice may be given to the person’s agent in the State.(2A)If a person is deceased, a notice may be given to the person’s personal representative.(3)If a person to whom a notice is to be given is not known, or is absent from the State and has no known agent in the State or is deceased and has no personal representative, the notice may be given in the way directed by an order of the court.
140 Offences and penalties
(1)Save as is expressly provided by or under this Act, every person who contravenes or fails to comply with any provision of this Act, commits an offence against this Act and, if no penalty is expressly provided for that offence, shall be liable on conviction to a maximum penalty of 10 penalty units.(2)All offences against this Act may be prosecuted, except where otherwise indicated, in a summary way under the Justices Act 1886, upon the complaint of an officer appointed by the Minister either generally or in a particular case.
141 Relation to other Acts and instruments
(1)Save as by this Act is otherwise expressly provided, the provisions of this Act relating to trusts and wills and other trust instruments apply to those in existence at the commencement of this Act as well as to those hereafter created.(2)Nothing in this Act shall be construed so as to deprive the public trustee of, or to limit or restrict, any powers or authorities vested in or exercisable by the public trustee by or under any other Act, instrument or law and all powers and authorities conferred by this Act on the public trustee shall be in addition to and not in limitation or restriction of other powers or authorities vested in or exercisable by the public trustee by or under any other Act, instrument or law.(3)Except in so far as is inconsistent with the provisions of this Act, all rights, powers, and remedies conferred by any other Act or law upon any court or judge, or upon the public trustee by that style or as public curator or upon any other person shall remain unrestricted and the provisions of this Act shall be read and construed as conferring upon such court or judge, or upon the public trustee or upon such person the rights, powers and remedies hereby provided in addition to and not in derogation of any rights, powers and remedies conferred by the other Act or law and so that the rights, powers and remedies conferred by that other Act or law and by this Act shall be capable of being exercised separately, or in aid the 1 of the other but, nevertheless, the provisions of this Act shall not be restricted by any other Act or law.
141A Public trustee may approve forms
The public trustee may approve forms for use under this Act.
142 Regulation-making power
(1)The Governor in Council may make regulations under this Act.(2)A regulation may be made about the following matters—(a)the conduct of the business of the Public Trust Office and the services to be provided by it;(b)determining the powers and duties of the officers and other employees of the public trustee and of the public trustee’s agents;(c)the custody and disposal of accounts, documents and other records;(d)the receipt and payment of moneys under this Act;(e)keeping, rendering and auditing accounts under this Act;(h)providing for the fixing of fees for legal, conveyancing and other professional services rendered to the public trustee or the official solicitor, or by the public trustee or the public trustee’s officers to the public;(ha)the remission by the public trustee of all or part of any fees or other charges fixed or otherwise provided for under this Act;(i)the employment of counsel and solicitors in the Public Trust Office and their duties and authorities;(j)the provision of aid in legal proceedings and of other legal assistance for poor persons and others;(k)the substitution of other provisions as to modes of procedure in court proceedings for those prescribed by this Act.
Part 10 Transitional provisions
Division 1 Transitional provisions for Act No. 24 of 1994
143 References to public curator
A reference in an Act, instrument or other document to the public curator is taken to be a reference to the public trustee.
144 Public Curator Act 1915 references
In an Act or document, a reference to the Public Curator Act 1915 may, if the context permits, be taken to be a reference to this Act.
Division 2 Transitional provisions for Guardianship and Administration Act 2000
145 Definition for div 2
In this division—tribunal means the Guardianship and Administration Tribunal.Editor’s note—
The Guardianship and Administration Tribunal was abolished by the Queensland Civil and Administrative Tribunal Act 2009, section 247.
146 Public trustee becomes administrator if protection order or s 70 certificate of disability
(1)This section applies if, immediately before its commencement—(a)the public trustee managed the estate of a person who is 18 years or more under a protection order under part 6; or(b)a certificate of disability under section 70 is in force for a person who is 18 years or more and the certificate has been filed in the court.Editor’s note—
Section 70 (Where public trustee may file certificate of disability after notice) was omitted by 2000 No. 8 s 263 sch 3.(2)On the commencement of this section, the public trustee is taken to be appointed under the Guardianship and Administration Act 2000 by the tribunal as the person’s administrator for all financial matters.
147 Public trustee becomes attorney if s 71 certificate of disability
(1)This section applies if, immediately before its commencement, a certificate of disability under section 71 is in force for a person who is 18 years or more and the certificate has been filed in the court.Editor’s note—
Section 71 (Where public trustee may file certificate of disability after request) was omitted by 2000 No. 8 s 263 sch 3.(2)On the commencement of this section, the person is taken to have made an enduring power of attorney under the Powers of Attorney Act 1998 appointing the public trustee as attorney for all financial matters.
148 Completion by public trustee under previous s 85
(1)Section 85 as in force immediately before the commencement of this section continues to have effect to authorise completion of anything commenced by the public trustee before commencement of this section as if the following amendments had not been made by the Guardianship and Administration Act 2000—(a)the amendment of sections 64, 69 and 73 of this Act;Editor’s note—
Section 73 (Duration and variation of authority under certificate of disability) was omitted by 2000 No. 8 s 263 sch 3.(b)the repeal of the Mental Health Act 1974, schedule 5;(c)the repeal of the Intellectually Disabled Citizens Act 1985.(2)Subsection (1) does not limit the operation of section 85 as in force immediately after the commencement of this section.
Division 3 Transitional provision for Discrimination Law Amendment Act 2002
149 Application of amendments made by Discrimination Law Amendment Act 2002
The amendments of this Act and the Acts Interpretation Act 1954 made by the Discrimination Law Amendment Act 2002 do not apply in relation to this Act for—(a)a will executed before the amendments commenced; or(b)the estate of a person who died before the amendments commenced.
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Citations
Public Trustee Act 1978 (Qld)
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