Trustee and Wills (Emergency Provisions) Act 1940 (NSW)

TRUSTEE AND WILLS (EMERGENCY PRO­

VISIONS) ACT.

Act No. 32, 1940.

An Act to facilitate the execution of trusts; to amend the law with respect to the limita­ tion of certain actions, suits and proceedings during the present war and for a certain period thereafter; to amend the law with respect to testamentary dispositions by- soldiers and sailors and with respect to the grant of administration of the estates of

deceased persons; to validate certain matters; to amend the Wills, Probate and Administration Act, 1898-1938, the Trustee Act, 1925-1938, and certain other Acts in certain respects; and for purposes connected therewith. [Assented to, 11th November, 1940.]

BE i t enacted b y the King 's Most Excellent Majesty, b y a n d with, t he advice and consent of the Legis­	la t ive Council a n d Legislative Assembly of New South
Wales in Par l iament assembled, and by the author i ty of t he same, as follows :—

P A R T I .

( 3 ) .

P R E L I M I N A R Y .

1. ( 1 ) This Act m a y be cited as the " T r u s t e e and

Wills (Emergency Provis ions) Act, 1 9 4 0 . "

( 2 ) This Act is divided into P a r t s as follows:—

P A R T I . — P R E L I M I N A R Y — S S . 1, 2 .

P A R T	I I . — E X E C U T I O N	o r	T R U S T S — S S .	3 - 1 1 .
P A R T	I I I . — L I M I T A T I O N	OF	A C T I O N S — s .	1 2 .

P A R T	I V . — A M E N D M E N T	OF T H E W I L L S ,	PROBATE AND
A D M I N I S T R A T I O N	A C T ,	1 8 9 8 - 1 9 3 8 — s .	1 3 .

(3) The Trus tee Act, 1925-1938, as amended by this Act, m a y be cited as the Trus tee Act, 1925-1940.

(4) The Wil ls , P r o b a t e and Admin is t ra t ion Act,

1898-1938, as amended by this Act, may be cited as the

Wil ls , P r o b a t e and Admin i s t ra t ion Act, 1898-1940.

2. F o r the purposes of this Act a pe r son shall be deemed to be " e n g a g e d on war s e r v i c e " if—

(a)	he is bound to continuous service for the dura­ t ion of the p resen t wa r between His Majesty and Germany and her Allies (whether or not he has agreed to serve or does serve beyond the l imits of the Commonwealth of Aus t ra l i a and
those of any T e r r i t o r y under the au thor i ty of
the Commonweal th)—

(i)   as a member of His Majesty's naval,

mi l i t a ry or a i r fo rces ; or

(ii)   as a member of the Army Medical Ser­ vice; or

(iii)   as a member of the Medical Corps

Nurs ing Service of His Majes ty ' s

naval , mi l i ta ry or a i r fo rces ; or

(b)	he is engaged on service in any work outside New South Wales , of the Br i t i sh or Aus t r a l i an R e d Cross Society or of the Sain t John Ambulance Associat ion or of any religious or pa t r io t i c organisat ion, being work in connection
wi th the p resen t w a r between H i s Majesty and

Germany and he r Al l ies ; or

(c)	he is, in connection with the present war between
H i s Majes ty and Germany and he r Allies, a p r i soner of w a r in the enemy's country or is

in te rned in the country of any neu t ra l power ;

or

(d) he is engaged outside New South Wales in making muni t ions or in any other service in connection with the p resen t w a r between H i s Majes ty and Germany and he r Allies.

P A R T

P A R T I I .

E X E C U T I O N OF T R U S T S .

3. (1) This P a r t of this Act shall be r ead and cons t rued with the Trus tee Act, 1925-1938.

(2) Wi thou t prejudice to the genera l i ty of sub­ section one of this section expressions used in this Act shall have the meanings respectively ascribed there to in the Trus tee Act, 1925-1940.

4. (1) Notwi ths tanding any th ing in any enactment or any rule of law or equity a t rus tee (whether a sole t rus tee or a t rus tee with o thers) may, subject to sub­ section two of this section, by regis tered deed, delegate to any person the execution, dur ing any per iod for which the t rus tee is engaged on w a r service and a fur ther per iod of twelve months thereaf ter , of any t r u s t of which he is t rus tee .

( 2 ) Noth ing in subsection one of this section shall

au thor i se—

(a)	the delegation of the execution of a trust to any pe r son who is not capable of being appointed
a t rus tee of tha t t r u s t ;
(b)	the delegation of the execution of any implied
or construct ive t r u s t ;
(c)	the delegation of the execution of a trust by one of two t rus tees to the other unless tha t other is the Public Trus tee or a t rus tee company ;
(d)	the delegation of the execution of a trust by one of two or more t rus tees to any person to whom
whether unde r the au thor i ty of this section or the execution of the t r u s t has been delegated,

otherwise, by the other t rus tee or, as the case may be, all the other t rus tees , unless tha t person is the Public Trus tee or a t rus tee company.

(3) A delegation given under the au thor i ty of this section by a t rus tee who is the legal representa t ive of a deceased person shall, unless the con t ra ry is expressed in the deed of delegation, opera te to delegate not only the execution of the duties incident to the office of legal represen ta t ive of such deceased person (including the exercise and discharge of all the powers , author i t ies ,

dut ies

duties and functions of the t rus tee as such legal r ep re ­ sentat ive) but also the execution of the t rus t s which devolve upon such t rus tee when the adminis t ra t ion of the es ta te of such deceased person is completed.

(4) A delegation given under the au thor i ty of t h i s

section—

(a)	shall, if it does not expressly refer to some pa r t i cu la r t r u s t or t ru s t s , be construed as relat­ ing to all t r u s t s the execution of which the
t rus tee has power to de lega te ;
(b)	may be l imited to any pa r t i cu la r t r u s t or t r u s t s
or to any par t i cu la r p a r t of any t ru s t or t r u s t s ;
(c)	shall operate within the scope of the authority conferred by this Act no twi ths tanding tha t i t is no t expressly l imited to the per iod or per iods re fe r red to in subsection one of this section.

(5) Two or more t rus tees m a y delegate concur­

rent ly .
(6) I n any proceedings b rought aga ins t a t rus tee who has given a delegation unde r this Act, in respect of any act or default of the delegate, it shall be a defence for the t rus tee to prove tha t the delegate was appoin ted by h im in good fai th and without negligence.

(7) All jur isdict ion and powers of any court shall apply to the delegate unde r any delegat ion given u n d e r this Act, in the same manner , so fa r as respects t he execution of the t r u s t to which the delegation relates , a s if the delegate were act ing in re la t ion to the t r u s t in the same capaci ty as the t rus tee who gave the delegation.

is about to become engaged on war service he may, by	any ins t rumen t to the exercise of a t r u s t or power is o r 5 . ( 1 ) W h e r e a pe r son whose consent is requi red by
reg is te red deed, delegate to the Publ ic T rus t ee or a t rus tee company the r ight to consent dur ing any per iod for which such pe r son is engaged on war service and a
fu r ther per iod of six months thereaf ter .

(2) Two or more persons m a y delegate concur­

rent ly .

(3) The pe r son who delegates and the delegate shall be several ly liable for any imprope r exercise of the r igh t to consent.

6. The power of delegation conferred by this Act shall be in addi t ion to , and not in derogat ion from, any other power of delegation, whether conferred by s ta tu te or otherwise.

7 . (1) The provis ions of sections sixty-six, sixty- seven and sixty-eight of the Trus tee Act, 1925-1940, shall, mu ta t i s mutandis , apply to and in respect of delegations given under the au thor i ty of this Act in all respects as if they were delegations author ised by P a r t I I of the Trus tee Act, 1925-1940.

(2) A s t a tu to ry declarat ion by the delegate under

a delegation given p u r s u a n t to this Act, t ha t the t rus tee or person giving the delegation is engaged on war service wi thin the meaning of this Act, shall be accepted as sufficient evidence of the fact by any person deal ing with the delegate.

8 . A t rus tee or pe r son who has given a delegation p u r s u a n t to this Act shall, for the purposes of this Act, be p resumed to remain alive unt i l definite news of his dea th has been received or such death has been presumed by a cour t of competent jurisdict ion, and the fact t ha t he is r epor ted " m i s s i n g " or " m i s s i n g and believed to be k i l l e d " or any similar r e p o r t shall not be construed as giving to persons hav ing knowledge of such r epo r t actual notice of his death, a l though in fact it has occurred.

9. E v e r y delegation given before the commencement of this Act by a t rus tee or, as the case may be, by a person re fe r red to in section five of this Act, who was a t the time of the execution of the ins t rument of delegation or

who has since been engaged on w a r service, and every	deed, act, m a t t e r or th ing heretofore or hereaf ter
executed or done by v i r tue of such delegation shall be deemed to have been and to be as good, valid and effectual as if this Act had been in force a t the t ime of the execu­ tion of the ins t rumen t of delegation.

10.     E v e r y delegation unde r this Act by a person who,

a t the t ime of the execution of the deed of delegation, was engaged on war service, executed by such pe r son and p u r p o r t i n g to be a t tes ted by an officer as defined in the Defence Act, 1903-1939, of the P a r l i a m e n t of the Com­ monwealth, shall be deemed to have been duly executed.

1 1 . The Trus tee Act, 1925-1938, is amended—

(a) by inserting at the end of subsection two of section six the following p rov i so :—

Prov ided tha t a new t rus tee may not be appoin ted on the sole g round t h a t a t ru s t ee remains out of New South Wales for more than two yea r s if such t rus tee has delegated the execution of the t r u s t p u r s u a n t to the Trus tee and Wills (Emergency Provis ions) Act, 1940, and such delegation remains in force.

(b) by inserting next after subsection three of sec­ t ion sixty-four the following new subsection:—

(3A) A delegation given under the au thor i ty of this section by a t rus tee who is the legal represen ta t ive of a deceased person shall, unless the con t ra ry is expressed in the deed of delega­ tion, opera te to delegate not only the execution of the duties incident to the office of legal representa t ive of such deceased person (includ­ ing the exercise and discharge of all the powers , author i t ies , duties and functions of the t rus tee as such legal representa t ive) bu t also the execution of the t r u s t s which devolve upon such t rus tee when the adminis t ra t ion of the es ta te of such deceased person is completed.

This subsection shall be deemed to have com­ menced on the first day of March, one thousand nine hundred and twenty-six.

P A R T	I I I .
L I M I T A T I O N	OF	A C T I O N S .

12.     A n y r igh t of ent ry , and any r igh t to commence

any action, suit or o ther proceeding, possessed by or exist ing aga ins t any person engaged on w a r service at the t ime he becomes engaged on w a r service or which accrues to or becomes available aga ins t h im while engaged on w a r service, shall no t be b a r r e d by the expira­ tion, dur ing the t ime he is engaged on w a r service or wi thin twelve months thereaf ter , of the per iod of l imita­ t ion fixed by any Act wi th respect to any such r ight .

I n

I n the event of such expira t ion such en t ry m a y be
made or such action, suit or proceeding commenced at

any t ime before the expira t ion of the said per iod of

twelve months .

This section shall have effect in any case where such person became engaged on war service or such r ight accrued or became available before as well as in any case where such person becomes engaged on war service or such r igh t accrues or becomes available af ter the commencement of this Act.

P A R T IV.

A M E N D M E N T OF T H E W I L L S , PROBATE A N D A D M I N I S T R A T I O N

A C T , 1898-1938.

13. The Wil ls , P r o b a t e and Admin is t ra t ion Act,

1898-1938, is amended—

(a) by inserting at the end of section ten the following words and new subsect ions:—

This subsection author ises and shall be

deemed always to have author ised any soldier being on actual mi l i ta ry service or any mar ine r or seaman being at sea, to dispose of his personal es ta te as he might have done before the coming into operat ion of this Act, though under the age of twenty-one years .

(2) Subsection one of this section shall extend

to any member of His Majes ty ' s naval or mar ine

he is so circumstanced tha t , if he were a soldier,	forces, not only when he is a t sea but also when
he would be on actual mi l i t a ry service within the meaning of tha t subsection.
(3) A t e s t amen ta ry disposit ion of any	real

es ta te in New South Wales made by a person to whom subsection one of this section applies, and who dies af ter the commencement of the Trus tee and Wil ls (Emergency Provis ions) Act, 1940, shall, no twi ths tanding tha t the person making the disposi t ion was , a t the t ime of

making

making it, under twenty-one yea r s of age, or t ha t the disposit ion has not been made in such m a n n e r or fo rm as was , immediate ly before such commencement, requi red by law, be valid in any case where the person making the disposi­ t ion was of such age and the disposi t ion has been made in such manne r and form tha t , if the disposit ion had been a disposit ion of personal es ta te made by such a person domiciled in New South Wales , i t would have been valid.

(4) W h e r e any person dies af ter the com­ mencement of the Trus tee and Wills (Emer ­ gency Provis ions) Act, 1940, having made a will which is, or which, if i t had been a disposi­ tion of p rope r ty , would have been rendered valid by the foregoing provis ions of this section, any appoin tment contained in t ha t will of any person as gua rd i an of the infant children of the t es ta to r shall have the like force and effect as a similar appo in tment contained in a will which would have been valid without the aid of this section.

(5) A n y person who, being then under the age of twenty-one years , has made a will which is r endered valid by the foregoing provis ions of this section, and who thereaf te r ceases to be a pe r son to whom subsection one of this section applies , m a y revoke such will, a l though a t the t ime of such revocat ion he is still under the age of twenty-one years , in any m a n n e r (other t han by the making of another will) in which this Act provides t h a t a will may be revoked.

includes a member of H i s Majes ty ' s a i r forces. (6) I n th is section the expression " s o l d i e r "

(b) by inserting in subsection one of section seventy- two af ter the words " o u t of the j u r i s d i c t i o n " the words " o r is engaged on w a r service within the mean ing of the Trus tee and Wil ls (Emergency Prov is ions) Act, 1940."

G O V E R N M E N T