Trustee Act 1958 (Vic)

Version No. 127

Trustee Act 1958

No. 6401 of 1958

Version incorporating amendments as at

1 September 2023

TABLE OF PROVISIONS

Section  Page

Part IA—Preliminary

1Short title and commencement

2Repeals, savings and application of Act

3Definitions

Part I—Investments

4Application of Part

5Investments of trust funds

6Duties of trustee in respect of power of investment

7Law and equity preserved

8Matters to which trustee must have regard in exercising power of investment

9Powers of trustee in relation to securities

9AInvestment in securities under RITS system

10Power of trustee as to calls on shares

11Power to purchase dwelling house as residence for beneficiary

12Power of trustee to retain investments

12ALoans and investments by trustees not breaches of trust in certain circumstances

12BLimitation of liability of trustee for loss on improper investments

12CFactors Court may take into account in action for breach of trust

12DPower of Court to set off gains and losses arising from investment

12EHousing loans by trustees

12FTransitional provision

Part II—General powers of trustees and personal representatives

Division 1—General powers

13Power of trustees to sell by auction etc.

14Duration of trust or power to sell

15Power to sell subject to depreciatory conditions

16Mortgage on sale of land

17Deferred payment on sale of land

18Power to trustees to give receipts

19Power to compound liabilities

20Power to raise money by sale, mortgage etc.

21Protection to purchasers and mortgagees dealing with trustees

22Devolution of powers or trusts

23Power to insure

24Application of insurance money where policy kept up under any trust power or obligation

25Deposit of documents with bankers for safe custody

26Reversionary interests and valuations

27Audit

28Power to employ agents

29Power to concur with others

30Power to delegate trusts during absence abroad

31Trustee's power of appropriation

Division 2—Indemnities

32Protection against liability in respect of rents and covenants

33Protection by means of advertisements

34Personal representatives relieved from personal liability in respect of calls made after transfer of shares

35Protection in regard to notice when a person is trustee etc. of more than one estate or trust

36Implied indemnity of trustees

Division 3—Maintenance advancement and protective trusts

37Power to apply income for maintenance etc. and to accumulate surplus income during a minority

38Use of capital for maintenance education advancement and benefit of beneficiaries

39Protective trusts

Part III—Appointment and discharge of trustees

40Limitation of the number of trustees

41Power of appointing new or additional trustees

42Supplemental provisions as to appointment of trustees

43Evidence as to vacancy in a trust

44Retirement of trustee without a new appointment

45Vesting of trust property in new trustee or continuing trustees

46Disclaimer of trusts on renunciation of probate

47Trustee company obtaining grant to become trustee

Part IV—Powers of the Court

Division 1—Appointment of new trustees

48Power of Court to appoint new trustees

49Effect of order under the preceding section

50Powers of new trustee appointed by the Court

Division 2—Vesting orders

51Vesting orders

52In whom property to be vested etc.

53Orders as to contingent rights of unborn persons

54Vesting order in place of conveyance by minor or mortgagee with mental illness

55Vesting orders in relation to minor's beneficial interests

56Vesting order consequential on order for sale or mortgage of land

57Vesting order consequential on judgment for specific performance etc.

58Effect of vesting order

59Directions etc. as to manner of transferring stock etc.

60Power to appoint person to convey

61Vesting orders of charity property

62Commission concerning persons of unsound mind

Division 3—Jurisdiction to make other orders

63Power of Court to authorize dealings with trust property

63APower of Court to vary trusts

64Persons entitled to apply for orders

65Persons entitled to apply for trustee

66Power to charge costs or to order payment

67Power to relieve trustee from personal liability

68Indemnity for breach of trust

Division 4—Payment into Court

69Payment into court by trustees

Part V—General provisions

70Application of Act to Settled Land Act trustees

71Appointment of certain corporations as custodian trustees

72Trust estates not affected by trustee becoming a convict

74Application of income of settled residuary estate

75Certain periodical payments to be applied as income

76Payment to representative official on behalf of residents or subjects of countries outside Australia

77Commission allowable to trustee of a settlement

78Indemnity to banks etc.

Schedules

First Schedule

Second Schedule

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Endnotes

1      General information

2      Table of Amendments

3      Explanatory details

Version No. 127

Trustee Act 1958

No. 6401 of 1958

Version incorporating amendments as at

1 September 2023

An Act to consolidate the Law relating to Trustees.

BE IT ENACTED by the Queen's Most Excellent Majesty by and with the advice and consent of the Legislative Council and the Legislative Assembly of Victoria in this present Parliament assembled and by the authority of the same as follows (that is to say):

PART IA—PRELIMINARY

1Short title and commencement

This Act may be cited as the Trustee Act 1958, and shall come into operation on a day to be fixed by proclamation of the Governor in Council published in the Government Gazette.

2Repeals, savings and application of Act

(1)The Acts mentioned in the First Schedule to this Act to the extent thereby expressed to be repealed are hereby repealed accordingly.

(2)Except as in this Act expressly or by necessary implication provided—

(a)all persons things and circumstances appointed or created by or under any of the repealed Acts or existing or continuing under any of the repealed Acts immediately before the commencement of this Act shall under and subject to this Act continue to have the same status operation and effect as they respectively would have had under the repealed Acts if they had not been so repealed; and

(b)in particular and without affecting the generality of the last preceding paragraph, such repeal shall not affect any debenture or stock issued or any vesting order or appointment made or other thing done under any of such Acts and any order or appointment so made may be revoked or varied in like manner as if it had been made under this Act, and such repeal shall not affect any limitation imposed in respect of instruments executed before the passing of the Statute of Trusts 1864 if such limitation is operative at the commencement of this Act, and the provisions of the Trustee Act 1931 in relation to converted securities and the discretions authorities immunities protections rights powers and obligations of trustees shall continue in operation as though the said Act had not been repealed.

(3)This Act, except where otherwise expressly provided shall apply to trusts including, so far as this Act applies thereto, executorships and administratorships constituted or created either before or after the commencement of this Act.

The powers and discretions conferred and the duties imposed on, and the directions given and indemnities immunities and protection allowed to, trustees and other persons by this Act shall be in addition to the powers discretions duties directions indemnities immunities and protection set out in the instrument (if any) creating the trust, but the powers discretions duties and directions provided for in this Act, unless otherwise stated, shall apply if and so far only as a contrary intention is not expressed in the instrument (if any) creating the trust, and shall have effect subject to the terms of that instrument.

This Act shall not affect the legality or validity of anything done before the commencement of this Act, except as otherwise hereinafter expressly provided.

Nothing in this Act shall affect the operation of section 8 of the State Trustee (State Owned Company) Act 1994.

3Definitions

(1)In this Act unless inconsistent with the context or subject-matter—

authorised deposit-taking institution has the same meaning as in the Banking Act 1959 of the Commonwealth;

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bankrupt includes insolvent;

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contingent right as applied to land includes a contingent or executory interest, a possibility coupled with an interest, whether the object of the gift or limitation of the interest or possibility is or is not ascertained, also a right of entry, whether immediate or future, and whether vested or contingent;

convey and conveyance, applied to any person, include the execution or doing by that person of every necessary or suitable assurance act and thing for conveying, assigning, appointing, surrendering or otherwise transferring or disposing of property;

Court means the Supreme Court and, in relation to property or an estate or interest in property the value of which property does not exceed the jurisdictional limit of the County Court, the Supreme Court or the County Court;

execute includes the doing of all acts and things necessary for a conveyance, and with reference to an instrument not under seal means sign, and derivatives of execute have corresponding meanings;

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incomeincludes rents and profits;

instrument includes Act of Parliament;

land includes land of any tenure buildings or parts of buildings, whether the division is horizontal, vertical or made in any other way, and other corporeal hereditaments; also a rent and other incorporeal hereditaments, and an easement, right, privilege or benefit in, over or derived from land, and also an undivided share in land; and hereditaments means real property which under an intestacy might formerly have devolved on an heir;

legal practitioner means an Australian legal practitioner;

mortgage and mortgagee include and relate to every estate and interest regarded in equity as merely a security for money, and every person deriving title under the original mortgagee;

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pay and payment as applied in relation to stocks and securities and in connexion with the expression into court include the deposit or transfer of the same in or into court;

personal representative means the executor, original or by representation, or administrator for the time being of a deceased person;

possessionincludes receipt of rents and profits or the right to receive the same (if any); and possessed applies to receipt of income of and to any vested estate less than a life estate, legal or equitable, in possession or in expectancy in any land;

propertyincludes real and personal property, and any estate share and interest in any property, real or personal, and any debt, and any thing in action, and any other right or interest, whether in possession or not;

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rightsincludes estates and interests;

sale includes an exchange;

securities includes—

(a)stocks and shares;

(b)any debenture, debenture stock, bond, note or other security;

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stock includes fully paid up shares, and so far as relates to vesting orders made by the Court under this Act, includes any fund, annuity, or security transferable in books kept by any company or society, or by instrument of transfer either alone or accompanied by other formalities, and any share or interest therein;

tenant for life statutory owner settled land settlement trustees of the settlement and term of years absolute have the same meanings as in the Settled Land Act 1958;

transfer in relation to stock or securities includes the performance and execution of every deed, power of attorney, act, and thing on the part of the transferor to effect and complete the title in the transferee;

trustdoes not include the duties incident to an estate conveyed by way of mortgage, but with this exception the expressions trust and trustee extend to implied and constructive trusts and to cases where the trustee has a beneficial interest in the trust property, and to the duties incident to the office of a personal representative, and trustee where the context admits, includes a personal representative, and new trustee includes an additional trustee;

trust for sale in relation to land means an immediate binding trust for sale, whether or not exercisable at the request or with the consent of any person, and with or without power at discretion to postpone the sale; trustees for sale means the persons (including a personal representative) holding land on trust for sale;

trustee company means a trustee company under the Trustee Companies Act 1984.

(2)Any reference to the investment loan or advance of trust money by a trustee on the security of property shall be construed to include a reference to such investment loan or advance on the transfer of an existing security as well as on a new security.

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PART I—INVESTMENTS

4Application of Part

This Part applies to trusts created before or after the commencement of section 4 of the Trustee and Trustee Companies (Amendment) Act 1995.

5Investments of trust funds

A trustee may, unless expressly prohibited by the instrument creating the trust—

(a)invest trust funds in any form of investment; and

(b)at any time, vary an investment.

6Duties of trustee in respect of power of investment

(1)Subject to the instrument creating the trust, a trustee must, in exercising a power of investment—

(a)if the trustee's profession, business or employment is or includes acting as a trustee or investing money on behalf of other persons, exercise the care, diligence and skill that a prudent person engaged in that profession, business or employment would exercise in managing the affairs of other persons; or

(b)if the trustee is not engaged in such a profession, business or employment, exercise the care, diligence and skill that a prudent person would exercise in managing the affairs of other persons.

(2)A trustee must exercise a power of investment in accordance with any provision of the instrument creating the trust that is binding on the trustee and requires the obtaining of any consent or approval with respect to trust investments.

(3)Subject to the instrument creating the trust, a trustee must, at least once in each year, review the performance (individually and as a whole) of trust investments.

7Law and equity preserved

(1)Any rules and principles of law or equity that impose a duty on a trustee exercising a power of investment continue to apply except to the extent that they are inconsistent with this or any other Act or the instrument creating the trust.

(2)Without limiting the generality of subsection (1), a duty imposed by any rules and principles of law or equity includes—

(a)a duty to exercise the powers of a trustee in the best interests of all present and future beneficiaries of the trust;

(b)a duty to invest trust funds in investments that are not speculative;

(c)a duty to act impartially towards beneficiaries and between different classes of beneficiaries;

(d)a duty to take advice.

(3)Any rules and principles of law or equity that relate to a provision in an instrument creating a trust that purports to exempt, limit the liability of, or indemnify a trustee in respect of a breach of trust, continue to apply.

(4)If a trustee is under a duty to take advice, the reasonable costs of obtaining the advice are payable out of trust funds.

8Matters to which trustee must have regard in exercising power of investment

(1)Without limiting the matters that a trustee may take into account when exercising a power of investment, a trustee must, so far as they are appropriate to the circumstances of the trust, have regard to—

(a)the purposes of the trust and the needs and circumstances of the beneficiaries; and

(b)the desirability of diversifying trust investments; and

(c)the nature of and risk associated with existing trust investments and other trust property; and

(d)the need to maintain the real value of the capital or income of the trust; and

(e)the risk of capital or income loss or depreciation; and

(f)the potential for capital appreciation; and

(g)the likely income return and the timing of income return; and

(h)the length of the term of the proposed investment; and

(i)the probable duration of the trust; and

(j)the liquidity and marketability of the proposed investment during, and on the determination of, the term of the proposed investment; and

(k)the aggregate value of the trust estate; and

(l)the effect of the proposed investment in relation to the tax liability of the trust; and

(m)the likelihood of inflation affecting the value of the proposed investment or other trust property; and

(n)the costs (including commissions, fees, charges and duties payable) of making the proposed investment; and

(o)the results of a review of existing trust investments.

(2)A trustee may—

(a)obtain and consider independent and impartial advice reasonably required for the investment of trust funds or the management of the investment from a person whom the trustee reasonably believes to be competent to give the advice; and

(b)pay out of trust funds the reasonable costs of obtaining the advice.

9Powers of trustee in relation to securities

(1)If securities of a body corporate are subject to a trust, the trustee may concur in any scheme or arrangement—

(a)for or arising out of the reconstruction, reduction of capital or liquidation of, or the issue of shares by, the body corporate; or

(b)for the sale of all or any part of the property and undertaking of the body corporate to another body corporate; or

(c)for the acquisition of securities of the body corporate, or of control of the body corporate, by another body corporate; or

(d)for the amalgamation of the body corporate with another body corporate; or

(e)for the release, modification or variation of rights, privileges or liabilities attached to the securities, or any of them—

in the same manner as if the trustee were beneficially entitled to the securities.

(2)The trustee may accept instead of, or in exchange for, or in addition to, the securities subject to the trust any securities of any denomination or description of another body corporate party to the scheme or arrangement.

(3)If a conditional or preferential right to subscribe for securities in a body corporate is offered to a trustee in respect of a holding in that body corporate or another body corporate, the trustee may, as to all or any of the securities—

(a)exercise the right and apply capital money subject to the trust in payment of the consideration; or

(b)assign the benefit of the right, or the title to the right, to a person, including a beneficiary under the trust, for the best consideration that can be reasonably obtained; or

(c)renounce the right.

(4)A trustee accepting or subscribing for securities under this section is, for the purposes of any provision of this Part, exercising a power of investment.

(5)A trustee may retain securities accepted or subscribed for under this section for any period for which the trustee could properly have retained the original securities.

(6)The consideration for an assignment made under subsection (3)(b) must be held as capital of the trust.

(7)This section applies in relation to securities acquired before or after the commencement of section 4 of the Trustee and Trustee Companies (Amendment) Act 1995 but subject to the instrument creating the trust.

9AInvestment in securities under RITS system

(1)A chose in action arising under the RITS system and which entitles its holder to a security of a particular description (the underlying security) is, for the purposes of this Act and the instrument creating a trust, taken to be the same in all respects as the underlying security.

(2)The holding or acquisition by a trustee of a chose in action referred to in subsection (1) is to be regarded as an investment by the trustee in the underlying security.

(3)It does not matter that the right conferred by the chose in action referred to in subsection (1) is a right in respect of securities of a particular description and not in respect of particular securities.

(4)This section applies to a trust created before or after the commencement of section 4 of the Trustee and Trustee Companies (Amendment) Act 1995 but applies only to the extent that the trust instrument creating the trust does not expressly prohibit its application.

(5)In this section—

RITS system means the Reserve Bank Information and Transfer System operated by the Reserve Bank of Australia, as operating from time to time.

10Power of trustee as to calls on shares

Subject to the instrument creating the trust—

(a)a trustee may apply capital money subject to a trust in payment of calls on shares subject to the same trust; and

(b)if the trustee is a trustee company, it may exercise the powers conferred by this section despite the shares on which the calls are made being shares in the trustee company.

11Power to purchase dwelling house as residence for beneficiary

(1)Subject to the instrument creating the trust, a trustee may—

(a)invest any trust funds in the purchase of a dwelling house for a beneficiary to use as a residence; or

(b)enter into any other agreement or arrangement to secure for a beneficiary a right to use a dwelling house as a residence.

(2)Despite the terms of the instrument creating the trust, a trustee may, if to do so would not unfairly prejudice the interests of the other beneficiaries, retain as part of the trust property a dwelling house for a beneficiary to use as a residence.

(3)A dwelling house purchased, retained or otherwise secured for use by the beneficiary as a residence may be made available to the beneficiary for that purpose on such terms and conditions consistent with the trust and the extent of the interest of the beneficiary as the trustee thinks fit.

(4)The trustee may retain a dwelling house or any interest or rights in respect of a dwelling house acquired under this section after the use of the dwelling house of the beneficiary has ceased.

(5)In this section—

dwelling house includes—

(a)any building or part of a building designed, or converted or capable of being converted, for use as a residence; and

(b)any amenities or facilities for use in connection with the use of a dwelling house.

12Power of trustee to retain investments

A trustee is not liable for breach of trust by reason only of retaining an investment that has ceased to be—

(a)an investment authorised by the instrument creating the trust; or

(b)an investment properly made by the trustee exercising a power of investment; or

(c)an investment made under this Act or a corresponding previous enactment; or

(d)an investment authorised by any other Act or the general law.

12ALoans and investments by trustees not breaches of trust in certain circumstances

(1)If a trustee lends money on the security of property, the trustee is not liable for breach of trust by reason only of the proportion borne by the amount of the loan to the value of the property at the time when the loan was made if it appears to the Court—

(a)that, in making the loan, the trustee was acting on a report as to the value of the property made by a person whom the trustee reasonably believed to be competent to give such a report and whom the trustee instructed and employed independently of any owner of the property; and

(b)that the amount of the loan did not exceed two-thirds of the value of the property as stated in the report; and

(c)that the loan was made in reliance on the report.

(2)This section applies to transfers of existing securities as well as to new securities and to investments made before or after the commencement of section 4 of the Trustee and Trustee Companies (Amendment) Act 1995.

12BLimitation of liability of trustee for loss on improper investments

(1)If a trustee improperly advances trust money on a security that would at the time of the investment have been a proper investment if the sum advanced had been smaller than the actual sum advanced, the security is to be taken to be a proper investment in respect of the smaller sum, and the trustee is only liable to make good the difference between the sum advanced and the smaller sum, with interest.

(2)This section applies to investments made before or after the commencement of section 4 of the Trustee and Trustee Companies (Amendment) Act 1995.

12CFactors Court may take into account in action for breach of trust

In proceedings against a trustee for breach of trust in respect of a duty under this Part relating to the trustee's power of investment, the Court may, when considering the question of the trustee's liability, take into account—

(a)the nature and purpose of the trust; and

(b)whether the trustee had regard to the matters set out in section 8 so far as is appropriate to the circumstances of the trust; and

(c)whether the trust investments have been made pursuant to an investment strategy formulated in accordance with the duty of a trustee under this Part; and

(d)the extent the trustee acted on the independent and impartial advice of a person competent (or apparently competent) to give the advice.

12DPower of Court to set off gains and losses arising from investment

(1)The Court may, when considering an action for breach of trust arising out of or in respect of an investment by a trustee where a loss has been, or is expected to be, sustained by the trust, set off all or part of the loss resulting from that investment against all or part of the gain resulting from any other investment whether in breach of trust or not.

(2)The power of set off conferred by subsection (1) is in addition to any other power or entitlement to set off all or part of any loss against any property.

12EHousing loans by trustees

(1)If a trustee lends money on a real security in accordance with the provisions of this Act, or had made such a loan in accordance with the provisions of this Act as in force immediately before the commencement of section 4 of the Trustee and Trustee Companies (Amendment) Act 1995, the trustee is not chargeable with breach of trust by reason only of the proportion borne by the amount of the loan to the value of the property on which the loan is secured if—

(a)the trustee was not expressly forbidden by the instrument (if any) creating the trust to lend money on a real security; and

(b)the loan was a housing loan; and

(c)the loan is secured by a contract of insurance in the prescribed form entered into with an authorised insurer.

(2)The Minister may by notice published in the Government Gazette—

(a)declare a corporation that is lawfully carrying on the business of insuring mortgages in Victoria to be an authorised insurer for the purposes of this section;

(b)revoke a declaration made under paragraph (a).

(3)The Minister may by notice published in the Government Gazette—

(a)specify terms and conditions to which an authorised insurer is authorised to enter into contracts of insurance for the purpose of this section; or

(b)vary or revoke any such terms and conditions.

(4)An authorised insurer who fails to comply with any terms or conditions subject to which it is authorised to enter into contracts of insurance for the purpose of this section shall be guilty of an offence against this Act.

Penalty:50 penalty units.

(5)For the purposes of this section—

(a)a declaration in force under section 8A(2) of this Act as in force immediately before the commencement of section 4 of the Trustee and Trustee Companies (Amendment) Act 1995 is deemed to be a declaration under subsection (2) of this section; and

(b)terms and conditions applying under section 8A(3) of this Act as so in force are deemed to be terms and conditions applying under subsection (3) of this section—

and may be revoked or varied under this section.

(6)In this section—

authorised insurer means a corporation that has been declared to be an authorised insurer under subsection (2);

dwelling-house includes—

(a)any building that consists, or any buildings that consist, in whole or in substantial part, of residential accommodation, whether constituting a single unit of accommodation or two or more such units; and

(b)any residential accommodation of a kind commonly known as a flat or home unit;

(c)appurtenances, outbuildings, fences and permanent provision for lighting, water supply, drainage and sewerage provided in connection with the dwelling-house;

housing loan means a loan—

(a)made for any one or more of the following purposes, that is to say, of enabling the borrower—

(i)To acquire a prescribed interest in land and construct, or complete the construction of, a dwelling-house on the land;

(ii)To construct a dwelling-house, or complete the construction of a dwelling-house, on land in which the borrower has a prescribed interest;

(iii)To acquire a prescribed interest in land on which there is a dwelling-house;

(iv)To alter, improve or extend a dwelling-house constructed on land in which the borrower has a prescribed interest;

(v)To meet expenses or in respect of the provision or improvement of roads, kerbing, guttering or footpaths in connection with land in which the borrower has a prescribed interest; or

(vi)To discharge a mortgage, charge or other encumbrance over land in which the borrower has a prescribed interest, being land on which a dwelling-house is being constructed; and

(b)the repayment of which is secured by security over the interest of the borrower in the land—

and, where the lender requires the borrower to meet the cost of the premium in respect of a contract of insurance entered into in respect of the loan, includes moneys advanced by the lender to enable the borrower to meet that cost, being moneys the repayment of which is secured by a security over the interest of the borrower in the land;

prescribed interest in land means—

(a)an estate in fee simple;

(b)an interest as lessee under a lease in perpetuity from the Crown in right of the Commonwealth or the State of Victoria; or

(c)an interest as lessee under a lease for a term of years from the Crown in right of the Commonwealth or the State of Victoria or from the owner of an estate in fee simple if the authorised insurer is satisfied that the term, covenants and conditions of the lease give reasonable security of tenure to the lessee for a substantial period.

12FTransitional provision

Any provision in an Act or any other instrument (whether or not creating a trust) that empowers or requires a person to invest money in investments authorised by the Trustee Act 1958 is to be read as if it empowered or required that person to invest that money according to the provisions of Part I of that Act relating to the investment of trust funds.

PART II—GENERAL POWERS OF TRUSTEES AND PERSONAL REPRESENTATIVES

Division 1—General powers

13Power of trustees to sell by auction etc.

(1)Where a trust for sale or a power of sale of property is vested in a trustee, he may sell or concur with any other person in selling all or any part of the property, either subject to prior charges or not, and either together or in lots, by public auction or by private contract, subject to any conditions respecting title or evidence of title or other matter as the trustee thinks fit, with power to vary any contract for sale, and to buy in at any auction, or to rescind any contract for sale and to re-sell, without being answerable for any loss.

(2)A trust or power to sell or dispose of land shall include a trust or power to sell or dispose of part thereof, whether the division is horizontal, vertical, or made in any other way.

(3)Where the power is not vested in the tenant for life or statutory owner this section shall not enable an express power to sell settled land to be exercised without his consent[2].

(4)If a trustee joins with any other person in selling trust property and other property, the purchase money shall be apportioned in or before the contract of sale, and a separate receipt shall be given by the trustee for the apportioned share; but a contravention of this subsection shall not invalidate or be deemed to have invalidated any instrument intended to affect or evidence the title to the trust property, and no person being a purchaser, lessee, mortgagee, or other person who, in good faith and for valuable consideration, acquires the trust property or an interest in it or charge over it, and neither the Registrar of Titles nor any other person certifying title shall be affected by notice of, or be concerned to inquire whether there has been, a contravention of this subsection.

(5)A power to postpone sale shall be implied in the case of every trust for sale of property.

(6)Where there is a power to postpone sale, the trustee shall not be liable in any way for postponing the sale, in the exercise of his discretion, for any indefinite period; nor shall a purchaser of a legal estate be concerned in any case with any directions respecting the postponement of a sale[3].

(7)Trustees shall be deemed always to have had the powers and protection given by this section.

14Duration of trust or power to sell

(1)Where the instrument creating a power to sell property does not expressly limit the duration of the power, then, notwithstanding any lapse of time or that all the beneficiaries are absolutely entitled to the property in fee-simple or full ownership in possession and are free of any incapacity, the trustee may, if so requested in writing by any beneficiary, sell the property, and shall be deemed to be a trustee for sale accordingly; but in all other respects the authority conferred by this section shall be subject to any restrictions to which the power created by the instrument is subject.

(2)A purchaser of the property or the Registrar of Titles or other person registering or certifying title shall not be concerned to inquire whether the property was sold under the authority conferred by this section.

(3)Nothing in this section shall affect any trust or power to sell which is for the time being in existence under the instrument creating the power.

15Power to sell subject to depreciatory conditions

(1)No sale made by a trustee shall be impeached by any beneficiary upon the ground that any of the conditions subject to which the sale was made may have been unnecessarily depreciatory unless it also appears that the consideration for the sale was thereby rendered inadequate.

(2)No sale made by a trustee shall, after the execution of the conveyance, be impeached as against the purchaser upon the ground that any of the conditions subject to which the sale was made may have been unnecessarily depreciatory, unless it appears that the purchaser was acting in collusion with the trustee at the time when the contract of sale was made.

(3)No purchaser, upon any sale made by a trustee, shall be at liberty to make any objection against the title upon any of the grounds aforesaid.

16Mortgage on sale of land

(1)On a sale of land for an estate in fee-simple by trustees or by a tenant for life, or statutory owner with the consent of the trustees of the settlement or order of the Court, the trustees, or the tenant for life or statutory owner may, where the proceeds are liable to be invested, contract that the payment of any part, not exceeding three-fifths, of the purchase money shall be secured by a mortgage of the land sold, with or without the security of any other property, and such mortgage shall, if any buildings or other improvements are comprised in the mortgage, contain a covenant by the mortgagor to keep them insured against loss or damage by fire to the full insurable value thereof.

(2)The trustees shall not be bound to obtain any report as to the value of the land or other property to be comprised in such mortgage, or any advice as to the making of the loan, and shall not be liable for any loss which may be incurred by reason only of the security being insufficient at the date of the mortgage.

(3)Where the sale referred to in subsection (1) of this section is made under the order of the Court, the powers conferred by that subsection shall apply only if and so far as the Court may by order direct.

17Deferred payment on sale of land

(1)A trustee for sale or a trustee having a power of sale may sell land on terms of deferred payment.

(2)The terms of deferred payment may provide that the purchase money shall be paid by instalments.

(3)The terms upon which land is sold shall, in addition to such other provisions as the trustee may deem proper, include provisions for giving effect to the following—

(a)that the part of the purchase money to be paid by way of deposit shall not be less than the sum which a person acting with prudence would, if the land were his own, have accepted in the circumstances in order to sell the land to the best advantage, and in any case shall not be less than one-tenth of the purchase money;

(b)that the balance of the purchase money shall be payable by such instalments and shall bear interest payable half-yearly or oftener on the amount from time to time unpaid at such rate as a person acting with prudence would, if the land were his own, have accepted in the circumstances in order to sell the land to the best advantage, and in any case the whole purchase-money shall be payable within a period not exceeding ten years from the date of sale;

(c)that if any instalment or interest or part thereof is in arrear and unpaid for six months, or for such less period as may be specified, the whole of the purchase money shall become due and payable;

(d)that the purchaser shall maintain and protect the property, and keep all buildings (if any) thereon insured against loss or damage by fire to the full insurable value thereof.

(4)(a) Notwithstanding that the land has been sold on terms of deferred payment, the trustee may at any time after two-fifths of the purchase money has been paid convey the land and take a mortgage back to secure payment of the balance of the purchase money and interest with or without the security of any other property, and such mortgage shall include provisions to the like effect as those set out in subsection (2) of section eleven of this Act.

(b)The trustees shall not be bound to obtain any report as to the value of the land or other property to be comprised in such mortgage, or any advice as to the making of the loan, and shall not be liable for any loss which may be incurred by reason only of the security being insufficient at the date of the mortgage.

(5)Where the sale is made under order of the Court, the provisions of this section shall apply unless the Court otherwise directs.

18Power to trustees to give receipts

(1)The receipt in writing of a trustee for any money, securities or other personal property or effects payable, transferable or deliverable to him under any trust or power shall be a sufficient discharge to the person paying, transferring or delivering the same and shall effectually exonerate him from seeing to the application or being answerable for any loss or misapplication thereof.

(2)This section shall not, except where the trustee is a trustee company, or except so far as is otherwise enacted, enable a sole trustee to give a valid receipt for capital money arising under the Settled Land Act 1958.

(3)This section shall apply notwithstanding anything to the contrary in the instrument (if any) creating the trust.

19Power to compound liabilities

(1)A personal representative, or two or more trustees acting together, or, subject to the restrictions imposed in regard to receipts by a sole trustee, not being a trustee company, a sole acting trustee where by the instrument (if any) creating the trust, or by statute a sole trustee is authorized to execute the trusts and powers reposed in him, may, if and as he or they think fit—

(a)accept any property, real or personal, before the time at which it is made transferable or payable; or

(b)sever and apportion any blended trust funds or property; or

(c)pay or allow any debt or claim on any evidence that he or they think sufficient; or

(d)accept any composition or any security, real or personal, for any debt or for any property, real or personal, claimed; or

(e)allow any time for payment of any debt; or

(f)compromise, compound, abandon, submit to arbitration, or otherwise settle any debt, account, claim, or thing whatever relating to the testator's or intestate's estate or to the trust; or

(g)by writing waive or vary any right exercisable by him or them which arises from a failure to comply at or within the proper time with any term of any agreement for sale mortgage lease or other contract; or

(h)without prejudice to the generality of the foregoing powers, where a leasehold is vested in him, or them, and the property is subject to onerous covenants of such a nature that it would not be in the interests of the beneficiaries to retain the property, may surrender or concur in surrendering the lease—

and for any of those purposes may enter into, give, execute, and do such agreements, instruments of composition or arrangement, releases, and other things as to him or them seem expedient, without being responsible for any loss occasioned by any act or thing so done by him or them in good faith.

(2)The powers conferred by this section shall apply both to property of whatever description that belonged to or was vested in a deceased person in succession to whom the property is held by a personal representative or trustee or trustees, and also to property of whatever description that becomes vested in a personal representative or trustee or trustees in the course of the administration of an estate or trust.

20Power to raise money by sale, mortgage etc.

(1)Where trustees are authorized by the instrument (if any) creating the trust or by law to pay or apply capital money subject to the trust for any purpose or in any manner, they shall have and shall be deemed always to have had power to raise the money required by sale, conversion, calling in, or mortgage of all or any part of the trust property for the time being in possession.

(2)This section applies notwithstanding anything to the contrary contained in the instrument (if any) creating the trust, but does not apply to trustees of property held for charitable purposes, or to trustees of a settlement for the purposes of the Settled Land Act 1958, not being also the statutory owners.

21Protection to purchasers and mortgagees dealing with trustees

No purchaser or mortgagee, paying or advancing money on a sale or mortgage purporting to be made under any trust or power vested in trustees, shall be concerned to see that such money is wanted, or that no more than is wanted is raised, or otherwise as to the application thereof.

22Devolution of powers or trusts

(1)Where a power or trust is given to or imposed on two or more trustees jointly, the same may be exercised or performed by the survivors or survivor of them for the time being.

(2)Until the appointment of new trustees, the personal representatives or representative for the time being of a sole trustee, or, where there were two or more trustees then of the last surviving or continuing trustee, shall be capable of exercising or performing any power or trust which was given to, or capable of being exercised by, the sole or last surviving or continuing trustee, or other the trustees or trustee for the time being of the trust.

(3)This section shall take effect subject to the restrictions imposed in regard to receipts by a sole trustee, not being a trustee company.

(4)In this section personal representative does not include an executor who has renounced or has not proved.

23Power to insure

(1)A trustee may insure against loss or damage, whether by fire or otherwise, any insurable property, and against any risk or liability against which it would be prudent for a person to insure if he were acting for himself.

(2)The insurance may be for any amount:

Provided that together with the amount of any insurance already on foot the total shall not exceed the insurable value or liability.

(3)The premiums may be paid by the trustees out of any moneys subject to the trust but in the accounts of the trustee shall be charged first against the income of the property concerned and secondly against the income of any other property subject to the same trusts, to the extent of the income available without obtaining the consent of any person who may be entitled wholly or partly to the income.

24Application of insurance money where policy kept up under any trust power or obligation

(1)Money receivable by trustees or any beneficiary under a policy of insurance against the loss or damage of any property subject to a trust or to a settlement within the meaning of the Settled Land Act 1958, whether by fire or otherwise, shall, where the policy has been kept up under any trust in that behalf or under any power statutory or otherwise, or in performance of any covenant or of any obligation statutory or otherwise, or by a tenant for life impeachable for waste, be capital money for the purposes of the trust or settlement, as the case may be.

(2)If any such money is receivable by any person, other than the trustees of the trust or settlement, that person shall use his best endeavours to recover and receive the money, and shall pay the net residue thereof, after discharging any costs of recovering and receiving it, to the trustees of the trust or settlement, or, if there are no trustees capable of giving a discharge therefor, into court.

(3)Any such money—

(a)if it was receivable in respect of settled land within the meaning of the Settled Land Act 1958, or any building or works thereon, shall be deemed to be capital money arising under that Act from the settled land, and shall be invested or applied by the trustees, or, if in court, under the direction of the Court, accordingly;

(b)if it was receivable in respect of personal chattels settled so as to devolve with or as nearly as may be with settled land[4] shall be deemed to be capital money arising under the Settled Land Act 1958 and shall be applicable by the trustees, or, if in court, under the direction of the Court, in like manner as provided by that Act with respect to money arising by a sale of chattels settled as aforesaid;

(c)if it was receivable in respect of property held upon trust for sale, shall be held upon the trusts and subject to the powers and provisions applicable to money arising by sale under such trust;

(d)in any other case, shall be held upon trusts corresponding as nearly as may be with the trusts affecting the property in respect of which it was payable.

(4)Such money, or any part thereof, may also be applied by the trustees, or, if in court, under the direction of the Court, in rebuilding, reinstating, replacing, or repairing the property lost or damaged, but any such application by the trustees shall be subject to the consent of any person whose consent is required by the instrument (if any) creating the trust to the investment of money subject to the trust, and, in the case of money which is deemed to be capital arising under the Settled Land Act 1958, be subject to the provisions of that Act with respect to the application of capital money by the trustees of the settlement.

(5)Nothing contained in this section shall prejudice or affect the right of any person to require any such money or any part thereof to be applied in rebuilding, reinstating, or repairing the property lost or damaged, or the rights of any mortgagee, lessor, or lessee, whether under any statute or otherwise.

25Deposit of documents with bankers for safe custody

(1)Trustees may deposit any documents held by them relating to the trust, or to the trust property, with any banker or banking company or any other company whose business includes the undertaking of the safe custody of documents, and any sum payable in respect of such deposit shall be charged against the income of the trust property.

(2)Where there are two or more trustees of a trust and the trustees by writing under their hands authorize a banker—

(a)to pay bills of exchange drawn upon the banking account of the trustees by the trustee or trustees named in that behalf in the authority; or

(b)to recognize as a valid indorsement upon any bill of exchange payable to the order of the trustees the indorsement thereon by the trustee or trustees named in that behalf in the authority—

the banker acting in pursuance of such an authority shall not be deemed privy to a breach of trust in the ground only of notice that the persons giving such authority were trustees, or that the instrument (if any) by which the trust was created did not contain any express power to give such an authority.

This subsection shall not affect any question of the liability of any trustee for breach of trust in so authorizing a banker as aforesaid; and in this subsection bill of exchange has the like meaning as in the Commonwealth Act known as the Bills of Exchange Act 1909–1936 or any amendment thereof.

(3)Whenever any payment received by a trustee in respect of a sale of trust property being securities bearing interest at a fixed rate is or includes payment for the right to receive any interest accrued from such securities at the time of such sale though such interest may not then be due the amount of such accrued interest shall for the purposes of the trust be deemed to have been received by the trustee as interest in respect of the period during which such interest so accrued.

(4)Whenever any payment made by a trustee out of trust money in respect of a purchase of any securities bearing interest at a fixed rate is or includes payment for the right to receive any interest accrued from such securities at the time of such purchase though such interest may not then be due, the amount of such accrued interest when received on account of the trust shall for the purposes of the trust be deemed to have been so received as purchase money repaid.

26Reversionary interests and valuations

(1)Where trust property includes any share or interest in property not vested in the trustees, or the proceeds of the sale of any such property, or any other thing in action, the trustees on the same falling into possession, or becoming payable or transferable may—

(a)agree or ascertain the amount or value thereof or any part thereof in such manner as they think fit;

(b)accept in or towards satisfaction thereof, at the market or current value, or upon any valuation or estimate of value which they think fit, any authorized investments;

(c)allow any deductions for duties, costs, charges and expenses which they think proper or reasonable;

(d)execute any release in respect of the premises so as effectually to discharge all accountable parties from all liability in respect of any matters coming within the scope of such release—

without being responsible in any such case for any loss occasioned by any act or thing so done by them in good faith.

(2)The trustees shall not be under any obligation and shall not be chargeable with any breach of trust by reason of any omission—

(a)to place any notice in the nature of a distringas notice or apply for any stop or other like order upon any securities or other property out of or on which such share or interest or other thing in action as aforesaid is derived, payable or charged; or

(b)to take any proceedings on account of any act, default, or neglect on the part of the persons in whom such securities or other property or any of them or any part thereof are for the time being, or had at any time been, vested—

unless and until required in writing so to do by some person, or the guardian of some person, beneficially interested under the trust, and unless also due provision is made to their satisfaction for payment of the costs of any proceedings required to be taken:

Provided that nothing in this subsection shall relieve the trustees of the obligation to get in and obtain payment or transfer of such share or interest or other thing in action on the same falling into possession.

(3)Trustees may, for the purpose of giving effect to the trust, or any of the provisions of the instrument (if any) creating the trust or of any statute, from time to time (by persons reasonably believed by the trustees to be competent valuers) ascertain and fix the value of any trust property in such manner as they think proper, and any valuation so made in good faith shall be binding upon all persons interested under the trust.

27Audit

(1)A trustee may, in his absolute discretion, from time to time, cause the accounts of the trust property to be examined or audited by a person who publicly carries on the business of an accountant, and shall for that purpose produce such vouchers and give such information to that person as he may require.

(2)The costs of the examination or audit, including the fee of the person making the examination or audit, shall be charged against the capital or income of the trust property, or partly in one way and partly in the other, as the trustee may in his absolute discretion think fit.

(3)In default of any direction, in any special case, by the trustee to the contrary, costs attributable to capital shall be borne by capital and those attributable to income by income.

(4)Where the trustee or one of the trustees is an incorporated company, nothing in this section shall, except in the case of a business forming part of the trust property, authorize any costs or fee to be paid out of or borne by the capital or income of the trust property unless the Court approves of such costs or fee being paid out of or borne by such capital or income.

28Power to employ agents

(1)Trustees or personal representatives may, instead of acting personally, employ and pay an agent, whether a legal practitioner, banker, financial services licensee, regulated principal, or other person, to transact any business or to do any act required to be transacted or done in the execution of the trust, or the administration of the testator's or intestate's estate, including the receipt and payment of money, and shall be entitled to be allowed and paid all charges and expenses so incurred, and shall not be responsible for the default of any such agent if employed in good faith.

(2)Trustees or personal representatives may appoint any person to act as their agent or attorney for the purpose of selling, converting, collecting, getting in, and executing and perfecting assurances of, or managing or cultivating, or otherwise administering any property, real or personal, moveable or immoveable, subject to the trust or forming part of the testator's or intestate's estate, in any place outside Victoria or executing or exercising any discretion or trust or power vested in them in relation to any such property, with such ancillary powers, and with and subject to such provisions and restrictions as they think fit, including a power to appoint substitutes, and shall not, by reason only of their having made such appointment, be responsible for any loss arising thereby.

(3)Without prejudice to such general power of appointing agents as aforesaid—

(a)a trustee may appoint a legal practitioner or a banker to be his agent to receive and give a discharge for any money or valuable consideration or property receivable by the trustee under the trust, by permitting the legal practitioner or banker to have the custody of, and to produce, a deed or instrument under the Transfer of Land Act 1958, having in the body thereof or endorsed thereon a receipt for such money or valuable consideration or property, the deed or instrument being executed, or the endorsed receipt being signed, by the person entitled to give a receipt for that consideration[5];

(b)a trustee shall not be chargeable with breach of trust by reason only of his having made or concurred in making any such appointment; and the production of any such deed or instrument by the legal practitioner or banker shall have the same statutory validity and effect as if the person appointing the legal practitioner or banker had not been a trustee;

(c)a trustee may appoint a legal practitioner or a banker to be his agent to receive and give a discharge for any money payable to the trustee under or by virtue of a policy of insurance, by permitting the legal practitioner or banker to have the custody of and to produce the policy of insurance with a receipt signed by the trustee, and a trustee shall not be chargeable with a breach of trust by reason only of his having made or concurred in making any such appointment.

In this subsection instrument includes a discharge of mortgage and banker means a person acting in his official capacity as general manager or manager of any company solely or chiefly engaged in the ordinary business of banking or as the manager conducting for such company the business of any branch of an authorised deposit-taking institution.

(4)Nothing in the last preceding subsection shall exempt a trustee from any liability which he would have incurred if this Act or any corresponding previous enactment had not been passed, in case he permits any such money, valuable consideration or property to remain in the hands or under the control of the legal practitioner or banker for a period longer than is reasonably necessary to enable the legal practitioner or banker (as the case may be) to pay or transfer the same to the trustee.

(5)In subsection (1)—

financial services licensee means a financial services licensee (as defined in section 761A of the Corporations Act) whose licence covers dealing in, or providing advice about, securities;

regulated principal means a regulated principal (as defined in section 1430 of the Corporations Act) who is authorised by Subdivision D of Division 1 of Part 10.2 of that Act to deal in, or provide advice about, securities.

29Power to concur with others

Where an undivided share in the proceeds of sale of land directed to be sold, or in any other property, is subject to a trust, or forms part of the estate of a testator or intestate, the trustees or personal representatives may (without prejudice to the trust for sale affecting the entirety of the land and the powers of the trustees for sale in reference thereto) execute or exercise any trust or power vested in them in relation to such share in conjunction with the persons entitled to or having power in that behalf over the other share or shares, and notwithstanding that any one or more of the trustees or personal representatives may be entitled to or interested in any such other share, either in his or their own right or in a fiduciary capacity.

30Power to delegate trusts during absence abroad[6]

(1)Where a trustee has never resided in Victoria, or is absent from Victoria, or is about to depart from Victoria, he may, notwithstanding any rule of law or equity to the contrary, by power of attorney delegate to any person (including a trustee company) the execution or exercise while he is out of Victoria of all or any trusts, powers and discretions vested in him as trustee, either alone or jointly with any other person or persons:

Provided that a person being the only other co‑trustee and not being a trustee company shall not be appointed to be an attorney under this subsection.

(2)The donor of a power of attorney given under this section shall be liable for the acts and defaults of the donee in the same manner as if they were the acts or defaults of the donor; and the donee shall be subject to the jurisdiction and powers of any court so far as respects the execution of the trusts powers and discretions delegated to him in the same manner as if he were the trustee.

(3)A power of attorney given pursuant to this section—

(a)if the donor is out of Victoria when he executes it—shall, subject to this section, come into operation forthwith after its receipt in Victoria;

(b)if the donor is in Victoria when he executes it—shall, subject to this section, come into operation when the donor leaves Victoria; and

(c)if the donor comes into Victoria after it has come into operation—shall cease to operate while the donor remains in Victoria, but from time to time shall, unless the instrument otherwise provides, come into operation again whenever the donor is out of Victoria.

*                *                *                *                *

(8)For the purpose of executing or exercising the trusts or powers delegated to him, the donee may exercise any of the powers conferred on the donor as trustee by statute or by the instrument creating the trust, including power, for the purpose of the transfer of any inscribed stock, himself to delegate to an attorney power to transfer but not including the power of delegation conferred by this section.

(9)The fact that it appears from any power of attorney given under this section, or from any evidence required for the purposes of any such power of attorney or otherwise, that in dealing with any stock the donee of the power is acting in the execution of a trust shall not be deemed for any purpose to affect any person in whose books the stock is inscribed or registered with any notice of the trust.

(10)In this section trustee includes a tenant for life and a statutory owner.

31Trustee's power of appropriation[7]

(1)A trustee may appropriate any part of the property subject to the trust, or any part of the estate of a testator or intestate, in its actual condition or state of investment, in or towards satisfaction of any legacy, share, or interest in the property or estate, whether settled or not, as to the trustee may seem just and reasonable, according to the respective rights of the persons interested in the property or estate:

Provided that—

(a)the appropriation shall not be made so as to affect prejudicially any specific gift;

(b)if any consent is required by this section the appropriation shall be made with such consent;

(c)in making the appropriation the trustee shall have regard to the rights of any person who may thereafter come into existence or who cannot be found or ascertained at the time of the appropriation, or as to whom it is uncertain at that time whether he is living or dead, and to the rights of any other person whose consent is not required by this section.

(2)The power of appropriation conferred by this section shall extend and apply to—

(a)property over which a testator exercises a general power of appointment;

(b)setting apart a fund to answer an annuity by means of the income of the fund or otherwise;

(c)setting apart a sum of money in or towards the satisfaction of a legacy share or interest.

(3)For the purpose of an appropriation under this section the trustee—

(a)may ascertain and fix the value of the respective parts of the property or estate subject to the trust and the liabilities to which the property or estate is subject, as the trustee may think fit; and

(b)shall for that purpose employ a person reasonably believed by the trustee to be a competent valuer in any case where such employment may be necessary.

(4)When an appropriation is made pursuant to this section—

(a)the appropriation shall bind all persons who are or may become interested in the property or estate, including persons whose consent is not required, persons who are not sui juris, and persons who are not yet ascertained; and

(b)to the extent to which the appropriation is made in or towards satisfaction of any legacy share or interest, the rights to which any person is entitled in virtue of the legacy share or interest—

(i)shall be restricted to the part of the property or estate so appropriated; and

(ii)shall not extend to any other parts thereof.

(5)Except as is otherwise provided by this section an appropriation of property, whether it is or is not an investment authorized by law or by the instrument (if any) creating the trust for the investment of money, shall not be made under this section for the benefit of a person absolutely and beneficially entitled in possession unless, if that person is of full age and capacity he consents in writing, or if he is not of full age and capacity, or if he is a person whom the trustee at the time of the appropriation has been unable to find or who cannot be ascertained, or as to whom it is uncertain whether he is living or dead, consent is given as provided by subsection (7) hereof.

(6)Except as is otherwise provided in this section, an appropriation shall not be made thereunder in respect of any settled legacy share or interest, unless consent in writing thereto is given—

(a)by the trustee thereof (if any) not being also the trustee making the appropriation; or

(b)by the person for the time being entitled to the income provided he is of full age and capacity; or

(c)in the manner provided in subsection (7) hereof.

(7)If the person absolutely and beneficially entitled in possession or in the case of any settled legacy share or interest the person for the time being entitled to the income—

(a)is a minor—the consent may be given by his parents or parent with whom he resides or in whose custody he is (as the case may be) or by his testamentary or other guardian, or by the Court;

(b)is incompetent to manage his own affairs or incapable of managing his own affairs—the consent may be given by any person having power by law to give the consent, or by the Court;

(c)is a person whom the trustee has been unable at the time of the appropriation to find or who cannot be ascertained, or as to whom it is uncertain at that time whether he is living or dead—the consent may be given by the Court.

(8)If the appropriation is of an investment authorized by law, or by the instrument (if any) creating the trust for the investment of money subject thereto, no consent shall be required—

(a)on behalf of a minor, where there is no parent or guardian;

(b)on behalf of a person who is incompetent to manage his own affairs or incapable of managing his own affairs, where there is no person having power by the law to give the consent; or

(c)on behalf of a person whom the trustee has been unable at the time of the appropriation to find or who cannot be ascertained, or as to whom it is uncertain at that time whether he is living or dead—

save that if there is a trustee of the legacy share or interest his consent shall be required.

(9)Notwithstanding anything contained in any other subsection of this section, where a fund is set apart to answer an annuity (not being an annuity in respect of which the trustee is liable to pay or provide, in addition to the annuity, any moneys by way of tax or otherwise) by means of the income of the fund or otherwise, the consent of the annuitant shall not be necessary if—

(a)the fund at the time of appropriation would be sufficient, if it were invested in securities of the Government of the Commonwealth of Australia at par, to provide an income exceeding the annuity by at least twenty per centum thereof; and

(b)the fund is actually invested in such securities.

(10)Where an appropriation is made under this section in respect of a settled legacy share or interest, the property appropriated shall be subject to all trusts for sale and powers of leasing disposition management and varying investments which would have been applicable thereto or to the legacy share or interest in respect of which the appropriation is made, if no such appropriation had been made:

Provided that nothing in this section shall relieve the trustee of the settled legacy share or interest, where he is not the trustee making the appropriation, from the obligation to obtain payment or transfer of the property appropriated, if or when the same is so payable or transferable.

(11)The trustee may make any conveyance or assent which may be necessary for giving effect to an appropriation under this section.

(12)Any appropriation or disposition of property—

(a)made in purported exercise of the powers conferred by this section; or

(b)in respect of which the trustee making the appropriation or disposition states in writing that the appropriation or disposition has been made in exercise of those powers—

shall, in favour of a person who in good faith and for valuable consideration purchases, or takes a lease or mortgage of, or otherwise takes or deals for, the property or any interest in it, be deemed to have been made in accordance with the requirements of this section, and after all requisite consents (if any) have been given.

The protection afforded by this subsection shall extend to the Registrar of Titles when registering titles and to every other person registering or certifying title.

(13)In this section settled legacy share or interest means—

(a)a legacy share or interest settled by the trust instrument (if any) or by any other instrument;

(b)an annuity, whether or not at the time of appropriation any person is absolutely and beneficially entitled to the income; and

(c)any legacy share or interest to which at the time of appropriation no person is absolutely and beneficially entitled in possession.

(14)This section shall not prejudice any other power of appropriation conferred by law or by the instrument (if any) creating the trust, and shall take effect with any extended powers conferred by that instrument; and the powers conferred by this section shall be in addition to any other power.

Division 2—Indemnities

32Protection against liability in respect of rents and covenants

(1)Where a personal representative or trustee liable as such for—

(a)any rent, covenant or agreement reserved by or contained in any lease; or

(b)any rent, covenant or agreement payable under or contained in any grant made in consideration of a rentcharge; or

(c)any indemnity given in respect of any rent, covenant or agreement referred to in either of the foregoing paragraphs—

satisfies all liabilities under the lease or grant which may have accrued, and been claimed up to the date of the conveyance hereinafter mentioned, and where necessary, sets apart a sufficient fund to answer any future claim that may be made in respect of any fixed and ascertained sum which the lessee or grantee agreed to lay out on the property demised or granted, although the period for laying out the same may not have arrived, then and in any such case the personal representative or trustee may convey the property demised or granted to a purchaser, legatee, devisee or other person entitled to call for a conveyance thereof and thereafter—

(i)he may distribute the residuary real and personal estate of the deceased testator or intestate, or as the case may be, the trust estate other than the fund (if any) set apart as aforesaid to or amongst the persons entitled thereto without appropriating any part, or any further part (as the case may be) of the estate of the deceased or of the trust estate to meet any future liability under the said lease or grant;

(ii)notwithstanding such distribution he shall not be personally liable in respect of any subsequent claim under the said lease or grant.

(2)This section shall operate without prejudice to the right of the lessor or grantor or the persons deriving title under the lessor or grantor, to follow the assets of the deceased or the trust property into the hands of the persons amongst whom the same may have been respectively distributed, and shall apply notwithstanding anything to the contrary in the will or other instrument (if any) creating the trust.

(3)In this section lease includes an under-lease and an agreement for a lease or under-lease and any instrument giving any such indemnity as aforesaid or varying the liabilities under the lease; grant applies to a grant whether the rent is created by limitation, grant, reservation or otherwise, and includes an agreement for a grant and any instrument giving any such indemnity as aforesaid or varying the liabilities under the grant; lessee and grantee include persons respectively deriving title under them.

33Protection by means of advertisements

(1)(a) With a view to the conveyance to or distribution among the persons entitled to any real or personal property, the trustees of a settlement or of a disposition on trust for sale or personal representatives, or persons who have made application to the registrar of probates for a grant of representation may give notice by advertisement in the Government Gazette, and in a daily newspaper, published in Melbourne and also if the property includes land not situated within 80 kilometres of the City of Melbourne in a newspaper published at least once a week in the district in which the land is situated, and such other like notices, including notices elsewhere than in Victoria, as would in any special case have been directed by the Court in an action for administration, of their intention to make such conveyance or distribution as aforesaid, and requiring any person interested to send to the trustees or personal representatives or persons who have made application to the registrar of probates for a grant of representation within the time not being less than two months, fixed in the notice or where more than one notice is given, in the last of the notices, particulars of his claim in respect of the property or any part thereof to which the notice relates[8].

(b)Notice by advertisement for the purposes of this subsection given by any personal representative or by any trustee or by any person who has made an application for a grant of representation as aforesaid shall so far as regards the contents of the advertisement be deemed to be sufficient if given in the form in the Second Schedule to this Act or to the like effect.

(2)In any case where the real and personal property of a testator or intestate are sworn or affirmed not to exceed $2000 or where State Trustees has filed an election to administer the estate of a testator or intestate notice by advertisement for the purposes of subsection (1) of this section shall as regards publication be deemed to be sufficient if inserted once in a daily newspaper published in Melbourne, and also, where the testator or intestate resided or carried on business in any place or district in Victoria situated more than 40 kilometres from Melbourne, in a daily or weekly newspaper (if any) published or circulating in such place or district.

(3)At the expiration of the time fixed by the notice the trustees or personal representatives may convey or distribute the property or any part thereof to which the notice relates, to or among the persons entitled thereto, having regard only to the claims whether formal or not, of which the trustees or personal representatives then had notice, and shall not, as respects the property so conveyed or distributed, be liable to any person of whose claim the trustees or personal representatives have not had notice at the time of conveyance or distribution; but nothing in this section shall—

(a)prejudice the right of any person to follow the property, or any property representing the same, into the hands of any person, other than a purchaser, who has received it; or

(b)free the trustees or personal representatives from any obligation to make searches or obtain official certificates of search similar to those which an intending purchaser would be advised to make or obtain.

In this subsection personal representatives means any personal representatives who have (whether as such or as applicants for a grant of representation) complied with the requirements of subsection (1) of this section or (where the case allowed) with the requirements of that subsection as modified by subsection (2) of this section.

(4)This section applies notwithstanding anything to the contrary in the will or other instrument (if any) creating the trust.

(5)In this section representation means the probate of a will or letters of administration.

34Personal representatives relieved from personal liability in respect of calls made after transfer of shares

A personal representative of a deceased person who was registered as the holder of shares not fully paid up in any incorporated company may distribute the assets of the estate of such deceased person as soon as such personal representative has procured the registration of some other person as the holder of the shares without reserving any portion of the estate for the payment of any calls made after the date of such registration whether made by the company or its directors or by its liquidators in a winding up, but nothing herein contained shall affect any right which the company or its liquidator may have to follow the assets of such deceased person into the hands of any persons to or amongst whom the same have been transferred or distributed.

(1)Unless a contrary intention appears in the will, this section shall apply to—

(a)every payment of an annuity contributed for or purchased by for or on behalf of a deceased person who dies on or after the first day of January One thousand nine hundred and fifty-four; and

(b)every periodical payment howsoever described paid in terms of or pursuant to a policy of insurance on the life of a deceased person who dies on or after the first day of January One thousand nine hundred and fifty-four and providing for payments to be made thereunder for a period of years or until a specified date or on the occurrence of a specified event or for the life of any person—

which is received as part of the estate of the deceased person by the executor or administrator with the will annexed of the deceased person or by the trustee of his estate.

(2)Every payment to which this section applies shall be paid or applied as if it were income of the estate of the deceased person received on the date on which that payment is received, and so that the dispositions trusts and powers applicable in the administration of the estate with respect to income received on that date shall apply with respect to that payment.

76Payment to representative official on behalf of residents or subjects of countries outside Australia

With respect to moneys and personal chattels payable or deliverable by any trustee to a resident or subject of any country outside Australia the Governor in Council may, if in his opinion it is difficult or impracticable for the trustee to pay or deliver such moneys or chattels to the person entitled thereto, by notice published in the Government Gazette, notify that such moneys or chattels may be paid or delivered to a specified representative official of such country in Victoria on behalf of such resident or subject; and the receipt in writing of such specified representative official shall be a good discharge to the trustee therefor.

77Commission allowable to trustee of a settlement

It shall be lawful for the Court or an Associate Judge of the Court to allow out of the trust funds to the trustee of a settlement such commission or percentage not exceeding five per centum for his pains and trouble as is just and reasonable.

78Indemnity to banks etc.

The foregoing provisions of this Act, and every order purporting to be made by the court under the said provisions shall be a complete indemnity to all chartered and incorporated banking companies and all other companies and associations whatsoever, and all persons for any acts done pursuant thereto, and it shall not be necessary for any company association or person to inquire concerning the propriety of the order, or whether the Court had jurisdiction to make it.

SCHEDULES

FIRST SCHEDULE

Number of Act	Title of Act	Extent of Repeal
5770	Trustee Act 1953	So much as is not already repealed
5896	Statute Law Revision Act 1955	Item in Schedule referring to Trustee Act 1953
5914	Limitation of Actions Act 1955	Clause 43 of Schedule
5967	Home Finance Act 1956	Section 4(4)

SECOND SCHEDULE

A.B., late of  [set out the usual residence and addition or other description of the deceased]. Creditors, next of kin, and others having claims in respect of the estate of the deceased, who died [set out the date of death with such accuracy as the information of the trustee, personal representative, or applicant for grant of representation permits] are required by the trustee [or personal representative or applicant for grant of administration], of

[set out name and address of trustee or personal representative or applicant

for grant of administration] to send particulars to him by the *           day of  19       after which date the trustee [or personal representative or applicant for grant of administration] may convey or distribute the assets, having regard only to the claims of which he then has notice.

[Date]

═══════════════

ENDNOTES

1   General information

See for Victorian Bills, Acts and current Versions of legislation and up-to-date legislative information.

The Trustee Act 1958 was assented to on 30 September 1958 and came into operation on 1 April 1959: Government Gazette 18 March 1959 page 893.

INTERPRETATION OF LEGISLATION ACT 1984 (ILA)

Style changes

Section 54A of the ILA authorises the making of the style changes set out in Schedule 1 to that Act.

References to ILA s. 39B

Sidenotes which cite ILA s. 39B refer to section 39B of the ILA which provides that where an undivided section or clause of a Schedule is amended by the insertion of one or more subsections or subclauses, the original section or clause becomes subsection or subclause (1) and is amended by the insertion of the expression "(1)" at the beginning of the original section or clause.

Interpretation

As from 1 January 2001, amendments to section 36 of the ILA have the following effects:

•     Headings

All headings included in an Act which is passed on or after 1 January 2001 form part of that Act.  Any heading inserted in an Act which was passed before 1 January 2001, by an Act passed on or after 1 January 2001, forms part of that Act.  This includes headings to Parts, Divisions or Subdivisions in a Schedule; sections; clauses; items; tables; columns; examples; diagrams; notes or forms.  See section 36(1A)(2A).

•     Examples, diagrams or notes

All examples, diagrams or notes included in an Act which is passed on or after 1 January 2001 form part of that Act.  Any examples, diagrams or notes inserted in an Act which was passed before 1 January 2001, by an Act passed on or after 1 January 2001, form part of that Act.  See section 36(3A).

•     Punctuation

All punctuation included in an Act which is passed on or after 1 January 2001 forms part of that Act.  Any punctuation inserted in an Act which was passed before 1 January 2001, by an Act passed on or after 1 January 2001, forms part of that Act.  See section 36(3B).

•     Provision numbers

All provision numbers included in an Act form part of that Act, whether inserted in the Act before, on or after 1 January 2001.  Provision numbers include section numbers, subsection numbers, paragraphs and subparagraphs.  See section 36(3C).

•     Location of "legislative items"

A "legislative item" is a penalty, an example or a note.  As from 13 October 2004, a legislative item relating to a provision of an Act is taken to be at the foot of that provision even if it is preceded or followed by another legislative item that relates to that provision.  For example, if a penalty at the foot of a provision is followed by a note, both of these legislative items will be regarded as being at the foot of that provision.  See section 36B.

•     Other material

Any explanatory memorandum, table of provisions, endnotes, index and other material printed after the Endnotes does not form part of an Act. 
See section 36(3)(3D)(3E).

2   Table of Amendments

This publication incorporates amendments made to the Trustee Act 1958 by Acts and subordinate instruments.

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––

Statute Law Revision Act 1959, No. 6505/1959

Assent Date:	5.5.59
Commencement Date:	1.4.59: s. 1(2)
CurrentState:	All of Act in operation

Trustee (Amendment) Act 1959, No. 6511/1959

Assent Date:	12.5.59
Commencement Date:	12.5.59
CurrentState:	All of Act in operation

Local Government (Amendment) Act 1959, No. 6535/1959

Assent Date:	19.5.59
Commencement Date:	10.6.59: Government Gazette 10.6.59 p. 1668
CurrentState:	All of Act in operation

Trustee (Mortgages) Act 1959, No. 6580/1959

Assent Date:	8.12.59
Commencement Date:	8.12.59
CurrentState:	All of Act in operation

Statute Law Revision Act 1962, No. 6867/1962

Assent Date:	16.4.62
Commencement Date:	16.4.62
CurrentState:	All of Act in operation

Trustee (Variation of Trusts) Act 1962, No. 6915/1962

Assent Date:	20.11.62
Commencement Date:	20.11.62
CurrentState:	All of Act in operation

Trustee (Mortgages) Act 1962, No. 6963/1962

Assent Date:	18.12.62
Commencement Date:	18.12.62
CurrentState:	All of Act in operation

Statute Law Revision Act 1965, No. 7332/1965

Assent Date:	14.12.65
Commencement Date:	14.12.65: s. 3
CurrentState:	All of Act in operation

Strata Titles Act 1967, No. 7551/1967

Assent Date:	17.3.67
Commencement Date:	S. 50 on 1.7.67: Government Gazette 24.5.67 p. 1754
CurrentState:	This information relates only to the provision/s amending the Trustee Act 1958

Perpetuities and Accumulations Act 1968, No. 7750/1968

Assent Date:	10.12.68
Commencement Date:	10.12.68
CurrentState:	All of Act in operation

Trustee (Amendment) Act 1969, No. 7791/1969

Assent Date:	15.4.69
Commencement Date:	15.4.69
CurrentState:	All of Act in operation

Trustee (Authorized Investments) Act 1969, No. 7833/1969

Assent Date:	20.5.69
Commencement Date:	20.5.69
CurrentState:	All of Act in operation

Victorian Development Corporation Act 1973, No. 8428/1973

Assent Date:	17.4.73
Commencement Date:	8.5.73: Government Gazette 8.5.73 p. 1009
CurrentState:	All of Act in operation

Age of Majority Act 1977, No. 9075/1977

Assent Date:	6.12.77
Commencement Date:	1.2.78: Government Gazette 11.1.78 p. 97
CurrentState:	All of Act in operation

Port of Melbourne Authority Act 1978, No. 9178/1978

Assent Date:	8.11.78
Commencement Date:	8.11.78
CurrentState:	All of Act in operation

Trustee (Authorized Investments) Act 1978, No. 9204/1978

Assent Date:	5.12.78
Commencement Date:	5.12.78
CurrentState:	All of Act in operation

Instruments (Powers of Attorney) Act 1980, No. 9421/1980

Assent Date:	20.5.80
Commencement Date:	1.7.80: Government Gazette 25.6.80 p. 2123
CurrentState:	All of Act in operation

Statute Law Revision Act 1980, No. 9427/1980

Assent Date:	27.5.80
Commencement Date:	27.5.80: s. 6(2)
CurrentState:	All of Act in operation

Victorian Economic Development Corporation Act 1981, No. 9574/1981

Assent Date:	26.5.81
Commencement Date:	1.7.81: Government Gazette 3.6.81 p. 1778
CurrentState:	All of Act in operation

Crimes (Classification of Offences) Act 1981, No. 9576/1981

Assent Date:	26.5.81
Commencement Date:	1.9.81: Government Gazette 26.8.81 p. 2799
CurrentState:	All of Act in operation

Trustee (Authorized Investments) Act 1981, No. 9653/1981

Assent Date:	15.12.81
Commencement Date:	15.12.81
CurrentState:	All of Act in operation

Companies (Consequential Amendments) Act 1981, No. 9699/1981

Assent Date:	5.1.82
Commencement Date:	S. 23 on 1.7.82: s. 2(1)
CurrentState:	This information relates only to the provision/s amending the Trustee Act 1958

Trustee (Authorized Investments) Act 1982, No. 9816/1982

Assent Date:	14.12.82
Commencement Date:	7.12.83: Government Gazette 7.12.83 p. 3886
CurrentState:	All of Act in operation

Water and Sewerage Authorities (Restructuring) Act 1983, No. 9895/1983

Assent Date:	7.6.83
Commencement Date:	7.6.83
CurrentState:	All of Act in operation

Statute Law Revision Act 1983, No. 9902/1983

Assent Date:	15.6.83
Commencement Date:	15.6.83: s. 2(2)
CurrentState:	All of Act in operation

Water and Sewerage Authorities (Further Restructuring) Act 1984, No. 10048/1984

Assent Date:	8.5.84
Commencement Date:	Ss 5(2), 12(1), 14(4) on 1.7.84: Government Gazette 27.6.84 pp 2068, 2076, 2086
CurrentState:	This information relates only to the provision/s amending the Trustee Act 1958

Statute Law Revision Act 1984, No. 10087/1984

Assent Date:	22.5.84
Commencement Date:	22.5.84: s. 3(2)
CurrentState:	All of Act in operation

Trustee (Amendment) Act 1984, No. 10143/1984

Assent Date:	13.11.84
Commencement Date:	1.12.84: Government Gazette 21.11.84 p. 4143
CurrentState:	All of Act in operation

Trustee Companies Act 1984, No. 10168/1984

Assent Date:	20.11.84
Commencement Date:	5.12.84: Government Gazette 5.12.84 p. 4329
CurrentState:	All of Act in operation

Trustee (Secondary Mortgage Market Amendment) Act 1985, No. 10230/1985

Assent Date:	10.12.85
Commencement Date:	10.12.85
CurrentState:	All of Act in operation

Building Societies Act 1986, No. 8/1986

Assent Date:	8.4.86
Commencement Date:	1.5.86: Government Gazette 30.4.86 p. 1114
CurrentState:	All of Act in operation

Courts Amendment Act 1986, No. 16/1986

Assent Date:	22.4.86
Commencement Date:	S. 24 on 1.7.86: Government Gazette 25.6.86 p. 2180
CurrentState:	This information relates only to the provision/s amending the Trustee Act 1958

Mental Health Act 1986, No. 59/1986

Assent Date:	3.6.86
Commencement Date:	S. 143(2) on 1.10.87: Government Gazette 30.9.87 p. 2585
CurrentState:	This information relates only to the provision/s amending the Trustee Act 1958

Supreme Court Act 1986, No. 110/1986

Assent Date:	16.12.86
Commencement Date:	1.1.87: s. 2
CurrentState:	All of Act in operation

Trustee (Amendment) Act 1986, No. 112/1986 (as amended by No. 65/1988)

Assent Date:	16.12.86
Commencement Date:	Ss 1–3, 5 (except subsections (1)(b) and (2)) on 1.11.87: Government Gazette 28.10.87 p. 2880; ss 4, 5(1)(b)(2), 6 on 7.6.88: s. 2(2)
CurrentState:	All of Act in operation

State Trust Corporation of Victoria Act 1987, No. 55/1987

Assent Date:	20.10.87
Commencement Date:	2.11.87: Government Gazette 28.10.87 p. 2925
CurrentState:	All of Act in operation

Stamps (Secondary Mortgage Market) Act 1988, No. 17/1988 (as amended by No. 17/1993)

Assent Date:	11.5.88
Commencement Date:	Ss 4, 5, 7–9 on 7.6.88: Special Gazette (No. 48) 7.6.88 p. 1; s. 6 on 31.5.02: Government Gazette 30.5.02 p. 1118
CurrentState:	This information relates only to the provision/s amending the Trustee Act 1958

State Bank Act 1988, No. 29/1988

Assent Date:	17.5.88
Commencement Date:	9.6.88: Government Gazette 8.6.88 p. 1582
CurrentState:	All of Act in operation

Subdivision Act 1988, No. 53/1988 (as amended by No. 47/1989)

Assent Date:	31.5.88
Commencement Date:	30.10.89: Government Gazette 4.10.89 p. 2532
CurrentState:	All of Act in operation

Transfer of Land (Computer Register) Act 1989, No. 18/1989

Assent Date:	16.5.89
Commencement Date:	3.2.92: Government Gazette 18.12.91 p. 3488
CurrentState:	All of Act in operation

Trustee (Amendment) Act 1989, No. 45/1989

Assent Date:	6.6.89
Commencement Date:	30.8.89: Government Gazette 30.8.89 p. 2211
CurrentState:	All of Act in operation

Water (Consequential Amendments) Act 1989, No. 81/1989

Assent Date:	5.12.89
Commencement Date:	1.11.90: Government Gazette 15.8.90 p. 2473
CurrentState:	All of Act in operation

Mineral Resources Development Act 1990, No. 92/1990

Assent Date:	18.12.90
Commencement Date:	S. 128(Sch. 1 item 30) on 6.11.91: Government Gazette 30.10.91 p. 2970
CurrentState:	This information relates only to the provision/s amending the Trustee Act 1958

State Bank (Succession of Commonwealth Bank) Act 1990, No. 94/1990

Assent Date:	18.12.90
Commencement Date:	S. 40(14) on 1.1.91: Special Gazette (No. 73) 31.12.90 p. 1
CurrentState:	This information relates only to the provision/s amending the Trustee Act 1958

State Trust Corporation of Victoria (Amendment) Act 1991, No. 84/1991

Assent Date:	10.12.91
Commencement Date:	1.1.92: Government Gazette 18.12.91 p. 3488
CurrentState:	All of Act in operation

Rural Finance (VEDC Abolition) Act 1993, No. 115/1993

Assent Date:	7.12.93
Commencement Date:	7.12.93
CurrentState:	All of Act in operation

State Trustees (State Owned Company) Act 1994, No. 45/1994

Assent Date:	7.6.94
Commencement Date:	Pt 1 (ss 1–3), s. 27 on 7.6.94: s. 2(2); rest of Act on 1.7.94: Special Gazette (No. 36) 23.6.94 p. 1
CurrentState:	All of Act in operation

Valuation of Land (Amendment) Act 1994, No. 91/1994

Assent Date:	6.12.94
Commencement Date:	S. 36(11) on 1.1.95: s. 2(2)
CurrentState:	This information relates only to the provision/s amending the Trustee Act 1958

Trustee and Trustee Companies (Amendment) Act 1995, No. 104/1995

Assent Date:	5.12.95
Commencement Date:	1.1.96: s. 2
CurrentState:	All of Act in operation

Legal Practice Act 1996, No. 35/1996

Assent Date:	6.11.96
Commencement Date:	S. 453(Sch. 1 item 85) on 1.1.97: s. 2(3)
CurrentState:	This information relates only to the provision/s amending the Trustee Act 1958

Public Sector Reform (Miscellaneous Amendments) Act 1998, No. 46/1998

Assent Date:	26.5.98
Commencement Date:	S. 7(Sch. 1) on 1.7.98: s. 2(2)
CurrentState:	This information relates only to the provision/s amending the Trustee Act 1958

Tribunals and Licensing Authorities (Miscellaneous Amendments) Act 1998, No. 52/1998

Assent Date:	2.6.98
Commencement Date:	S. 311(Sch. 1 item 98) on 1.7.98: Government Gazette 18.6.98 p. 1512
CurrentState:	This information relates only to the provision/s amending the Trustee Act 1958

Transfer of Land (Single Register) Act 1998, No 85/1998

Assent Date:	17.11.98
Commencement Date:	S. 24(Sch. item 61) on 1.1.99: s. 2(3)
CurrentState:	This information relates only to the provision/s amending the Trustee Act 1958

Public Sector Reform (Further Amendments) Act 1999, No. 12/1999

Assent Date:	11.5.99
Commencement Date:	S. 4(Sch. 2 item 19) on 11.5.99: s. 2(1)
CurrentState:	This information relates only to the provision/s amending the Trustee Act 1958

Statute Law Revision Act 2000, No. 74/2000

Assent Date:	21.11.00
Commencement Date:	S. 3(Sch. 1 item 132) on 22.11.00: s. 2(1)
CurrentState:	This information relates only to the provision/s amending the Trustee Act 1958

Statute Law Amendment (Authorised Deposit-taking Institutions) Act 2001, No. 11/2001

Assent Date:	8.5.01
Commencement Date:	S. 3(Sch. item 81) on 1.6.01: s. 2(2)
CurrentState:	This information relates only to the provision/s amending the Trustee Act 1958

Corporations (Consequential Amendments) Act 2001, No. 44/2001

Assent Date:	27.6.01
Commencement Date:	S. 3(Sch. item 117) on 15.7.01: s. 2
CurrentState:	This information relates only to the provision/s amending the Trustee Act 1958

Trustee (Amendment) Act 2001, No. 60/2001

Assent Date:	16.10.01
Commencement Date:	Ss 1, 2 on 17.10.01: s. 2(1); ss 3–5 on 31.5.02: Government Gazette 30.5.02 p. 1118
CurrentState:	All of Act in operation

Corporations (Financial Services Reform Amendments) Act 2002, No. 9/2002

Assent Date:	23.4.02
Commencement Date:	S. 3(Sch. item 14) on 23.4.02: s. 2
CurrentState:	This information relates only to the provision/s amending the Trustee Act 1958

Courts Legislation (Funds in Court) Act 2004, No. 30/2004

Assent Date:	1.6.04
Commencement Date:	S. 10 on 1.7.04: s. 2
CurrentState:	This information relates only to the provision/s amending the Trustee Act 1958

Legal Profession (Consequential Amendments) Act 2005, No. 18/2005

Assent Date:	24.5.05
Commencement Date:	S. 18(Sch. 1 item 109) on 12.12.05: Government Gazette 1.12.05 p. 2781
CurrentState:	This information relates only to the provision/s amending the Trustee Act 1958

Courts Legislation Amendment (Associate Judges) Act 2008, No. 24/2008

Assent Date:	3.6.08
Commencement Date:	S. 88 on 17.12.08: Special Gazette (No. 377) 16.12.08 p. 1
CurrentState:	This information relates only to the provision/s amending the Trustee Act 1958

Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009, No. 68/2009

Assent Date:	24.11.09
Commencement Date:	S. 97(Sch. item 126) on 1.1.10: Government Gazette 10.12.09 p. 3215
CurrentState:	This information relates only to the provision/s amending the Trustee Act 1958

Legal Profession Uniform Law Application Act 2014, No. 17/2014

Assent Date:	25.3.14
Commencement Date:	S. 160(Sch. 2 item 99) on 1.7.15: Special Gazette (No. 151) 16.6.15 p. 1
Current State:	This information relates only to the provision/s amending the Trustee Act 1958

Mental Health Act 2014, No. 26/2014

Assent Date:	8.4.14
Commencement Date:	S. 455(Sch. item 32) on 1.7.14: s. 2(1)
Current State:	This information relates only to the provision/s amending the Trustee Act 1958

Powers of Attorney Act 2014, No. 57/2014 (as amended by No. 20/2015)

Assent Date:	26.8.14
Commencement Date:	S. 163 on 1.9.15: s. 2(2)
Current State:	This information relates only to the provision/s amending the Trustee Act 1958

Oaths and Affirmations Act 2018, No. 6/2018

Assent Date:	27.2.18
Commencement Date:	S. 68(Sch. 2 item 127) on 1.3.19: s. 2(2)
Current State:	This information relates only to the provision/s amending the Trustee Act 1958

Guardianship and Administration Act 2019, No. 13/2019

Assent Date:	4.6.19
Commencement Date:	S. 221(Sch. 1 item 55) on 1.3.20: s. 2(2)
Current State:	This information relates only to the provision/s amending the Trustee Act 1958

Mental Health and Wellbeing Act 2022, No. 39/2022

Assent Date:	6.9.22
Commencement Date:	Ss 875−878 on 1.9.23: s. 2(2)
CurrentState:	This information relates only to the provision/s amending the Trustee Act 1958

–––––––––––––––––––––––––––––––––––––––––––––––––––

Metric Conversion (Trustee Act) Regulations 1973, S.R. No. 380/1973

Date of Making:	18.12.73
Date of Commencement:	18.12.73

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––

3   Explanatory details

[1] Pt 1 (Heading and ss 4–12):

Pt 1 (Heading and ss 4–12) amended by Nos 6511 s. 2, 6535 s. 7(21), 6580 s. 2, 6963 s. 2, 7551 s. 50, 7791 ss 2(a)(b), 3, 7833 s. 2, 8428 s. 37, 9178 s. 7, 9204 s. 2(b)(d)(e), 9574 s. 4, 9653 s. 2(1)(a)(b), 9816 ss 2(1)(2), 3, 9895 s. 2(1)(Sch. 1 item 12), 9902 s. 2(1)(Sch. item 255), 10048 ss 5(2), 12(2), 14(4), 10143 ss 4, 6, 10168 s. 3, 112/1986 ss 5(1)(a)(b)(2), 6, 55/1987 s. 57(3)(Sch. 5 item 59), 17/1988 ss 8, 9(1)(2), 29/1988 s. 57(18)(b), 53/1988 s. 45(Sch. 3 items 80, 81) (as amended by No. 47/1989 s. 23(2)), 45/1989 s. 4(1)(2)(a)–(c) (3)(4)(a)(b)(5), 81/1989 s. 3(Sch. item 54), 84/1991 s. 20, 115/1993 s. 32(3), 45/1994 s. 42(Sch. item 12.3), 91/1994 s. 36(11)(c)–(e), substituted as Pt 1 (Heading and ss 4–12F) by No. 104/1995 s. 4.

[2] S. 13(3): Section 108(2) of the Settled Land Act 1958, No. 6367/1958 reads as follows:

108Saving for and exercise of other powers

(2)In case of conflict between the provisions of a settlement and the provisions of this Act, relative to any matter in respect whereof the tenant for life or statutory owner exercises or contracts or intends to exercise any power under this Act, the provisions of this Act shall prevail; and accordingly, notwithstanding anything in the settlement, the consent of the tenant for life or statutory owner shall by virtue of this Part be necessary to the exercise by the trustees of the settlement or other persons of any power conferred by the settlement exercisable for any purpose provided for in this Act: Provided that where two or more persons constitute the tenant for life or statutory owner the consent of one only of such persons is to be deemed necessary for the exercise of any such power.

[3] S. 13(6): Section 32(1) of the Property Law Act 1958, No. 6344/1958 reads as follows:

32Power to postpone sale

(1)A power to postpone sale shall, in the case of every trust for sale of land, be implied unless a contrary intention appears.

[4] S. 24(3)(b): Section 67 of the Settled Land Act 1958, No. 6367/1958 reads as follows:

67Sale and purchase of heirlooms under order of court

(1)Where personal chattels are settled so as to devolve with settled land, or to devolve therewith as nearly as may be in accordance with the law in force at the date of settlement, or are settled upon trusts declared by reference to the trusts affecting land, a tenant for life of the land with the consent of the trustees of the settlement or the order of the Court may sell the chattels or any of them.

(2)The money arising by the sale shall be capital money arising under this Act, and shall be paid, invested, or applied and otherwise dealt with in like manner in all respects as by this Act directed with respect to other capital money arising under this Act, or may be invested in the purchase of other chattels of the same or any other nature, which, when purchased, shall be settled and held on the same trusts, and shall devolve in the same manner as the chattels sold.

(3)A sale or purchase of chattels under this section shall not be made without the consent of the trustees of the settlement or an order of the Court.

[5] S. 28(3)(a): Section 69 of the Property Law Act 1958, No. 6344/1958 (as amended by No. 23/1998) reads as follows:

69Receipt in deed or indorsed authority for payment to legal practitioner

S. 69(1) amended by Nos 23/1998 s. 8(2), 75/2006 s. 192(Sch. 2 item 4.1).

(1)Where a banker, legal practitioner or conveyancer produces a deed, having in the body thereof or indorsed thereon a receipt for consideration money or other consideration, the deed being executed, or the indorsed receipt being signed, by the person entitled to give a receipt for that consideration, or produces a duly executed instrument under the Transfer of Land Act 1958 the deed or instrument (as the case may be) shall be a sufficient authority to the person liable to pay or give the same for his paying or giving the same to the banker, legal practitioner or conveyancer, without the banker, legal practitioner or conveyancer producing any separate or other direction or authority in that behalf from the person who executed or signed the deed or receipt or instrument.

(2)This section shall apply whether the consideration was paid or given before or after the commencement of this Act.

S. 69(3) amended by No. 11/2001 s. 3(Sch. item 59.1(a)(b)).

(3)In this section instrument includes a discharge of mortgage and banker means a person acting in his or her official capacity as general manager or manager of any company solely or chiefly engaged in the ordinary business of banking or as the manager conducting for such company the business of any branch of an authorised deposit-taking institution within the meaning of the Banking Act 1959 of the Commonwealth.

S. 69(4) inserted by No. 75/2006 s. 192(Sch. 2 item 4.2).

(4)In this section, conveyancer means a licensee under the Conveyancers Act 2006.

[6] S. 30: Compare section 36 of the Property Law Act 1958, No. 6344/1958 which reads as follows:

36Delegation of powers of management by trustees for sale

(1)The powers of and incidental to leasing, accepting surrenders of leases and management, conferred on trustees for sale whether by this Part or otherwise, may, until sale of the land, be revocably delegated from time to time, by writing, signed by them, to any person of full age (not being merely an annuitant) for the time being beneficially entitled in possession to the net rents and profits of the land during his life or for any less period; and in favour of a lessee such writing shall, unless the contrary appears, be sufficient evidence that the person named therein is a person to whom the powers may be delegated, and the production of such writing shall, unless the contrary appears, be sufficient evidence that the delegation has not been revoked.

(2)Any power so delegated shall be exercised only in the names and on behalf of the trustees delegating the power.

(3)The persons delegating any power under this section shall not, in relation to the exercise or purported exercise of the power, be liable for the acts or defaults of the person to whom the power is delegated, but that person shall, in relation to the exercise of the power by him, be deemed to be in the position and to have the duties and liabilities of a trustee.

(4)Where, at the commencement of this Act, an order made under section one hundred and thirty-six of the Settled Estates and Settled Land Act 1915 or any corresponding previous enactment, is in force, the person on whom any power is thereby conferred shall, while the order remains in force, exercise such power in the names and on behalf of the trustees for sale in like manner as if the power had been delegated to him under this section.

[7]

S. 31: See section 46 of the Administration and Probate Act 1958,

No. 6191/1958 which has not been reproduced here because of its length.

[8]

S. 33(1)(a): Section 30 of the Administration and Probate Act 1958,

No. 6191/1958 reads as follows:

30Executors or administrators may serve notice on claimant

(1)A personal representative, having notice, whether under the provisions of section thirty-three of the Trustee Act 1958 or otherwise, that any claim has been or may be made against the estate of which he is the personal representative, may serve upon any person making or possibly entitled to make such claim a notice requiring such person to take within a period of three months from the date of receiving such notice all proceedings proper to enforce or to establish such claim and to duly prosecute the same.

S. 30(2) amended by No. 110/1986 s. 140(2).

(2)After the expiration of the said period of three months such personal representative may apply to the Court for an order to some such effect as hereinafter in this section mentioned.

S. 30(3) amended by No. 110/1986 s. 140(2).

(3)Upon the hearing of such application the Court, if not satisfied that such proceedings as aforesaid have been taken and are being duly prosecuted, may—

(a)order that the said period be extended; or

(b)order that the claim of any person so served with notice of the application be for all purposes barred; or

(c)make any further or other order enabling the estate to be distributed or dealt with without regard to the claim; and

S. 30(3)(d) amended by No. 110/1986 s. 140(2).

(d)in any case impose such conditions and give such directions including a direction as to the payment of the costs of or incidental to the application as to the Court seems just.

[9] S. 37(3): Section 38 of the Wills Act 1997, No. 88/1997 reads as follows:

38Income on contingent and future dispositions

A contingent, future or deferred disposition of property, whether specific or residuary, includes any intermediate income of the property which has not been disposed of by the will.

[10] S. 40(3)(c): See section 125 of the Property Law Act 1958, No. 6344/1958, which has not been reproduced here because of its length.

[11] S. 42(1)(c): See section 18(2) where certain moneys for which a sole trustee cannot give a valid receipt are stated.

[12] S. 42(2): See note 11.

[13] S. 68: See Pt VIII of the Marriage Act 1958, No. 6306/1958 which has not been reproduced here because of its length.

[14] S. 70(1): See section 102 of the Settled Land Act 1958, No. 6367/1958 which has not been reproduced here because of its length.

[15] S. 72: See sections 545, 547, 548, 562–565 of the Crimes Act 1958, No. 6231/1958.