Trusts Act 1973 (Qld)

Trusts Act 1973

An Act to consolidate and amend the law relating to trusts, trustees, settled land and charities

Part 1    Preliminary

1   Short title

This Act may be cited as the Trusts Act 1973.

2   [Repealed]

3   [Repealed]

4   Application

(1)Except where otherwise provided, this Act applies to every trust, as defined in section 5, whether constituted or created before or after the commencement of this Act.

(2)Nothing in this Act shall preclude a settlor from conferring on a trustee or other person exercising the powers of a trustee under this Act any powers additional to or larger than those conferred by this Act.

(3)Any additional or larger powers so conferred shall, as far as may be, notwithstanding anything in this Act, and unless a contrary intention is expressed in the instrument (if any) creating the trust, operate and be exercisable in the like manner and with all the like incidents effects and consequences as if conferred by this Act.

(4)The powers conferred by or under this Act on a trustee are in addition to the powers given by any other Act and by the instrument (if any) creating the trust; but the powers conferred on the trustee by this Act, unless otherwise provided, apply if and so far only as a contrary intention is not expressed in the instrument (if any) creating the trust, and have effect subject to the terms of that instrument.

(5)Except where otherwise provided by this Act, this Act does not affect the legality or validity of anything done before the commencement of this Act.

(6)This Act binds the Crown not only in right of the State but also, so far as the legislative power of Parliament permits, the Crown in all its other capacities.

5   Definitions

In this Act—

apart from this Act, when used in relation to land of which there is no trustee, does not include the public trustee, or a trustee appointed pursuant to section 12 or 80, or in whom the trust property is vested pursuant to section 16 or 90.

approved form see section 118.

authorised investments means investments of trust funds that are—

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

(b)made by the trustee exercising a power of investment under part 3 or under an order under section 94; or

(c)authorised by another Act or the general law.

bank ...

bank and savings bank ...

bankrupt includes insolvent.

benefit, in relation to any person, includes insurance on the life of that person.

commencement of this Act means the time when this Act (other than sections 94, 95, 98 and 99) came or comes into operation.

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

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

court means the Supreme Court or a judge thereof.

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

instrument creating the trust includes any deed, will, agreement for a settlement, Act of Parliament, or other instrument, or any number of instruments, whether made or passed before or after, or partly before and partly after, the commencement of this Act.

land includes—

(a)land of any tenure, and any estate or interest, whether vested or contingent, in land; and

(b)mines and minerals, whether or not severed from the surface; and

(c)buildings or parts of buildings, whether the division is horizontal, vertical or made in any other way; and

(d)a unit comprised in a building units plan registered in the manner provided by or under the Building Units and Group Titles Act 1980; and

(e)any other corporeal hereditaments; and

(f)rent and any incorporeal hereditament; and

(g)an easement, right, privilege, share, interest or benefit in, over or derived from land;

and, in this definition, mines and minerals includes any strata or seams or minerals or substances in or under any land, and powers of working or getting them and hereditament means real property which under an intestacy might at common law devolve on an heir.

lease includes a bailment.

Local Authority ...

Minister ...

mortgagee includes every person having an estate or interest regarded at law or in equity as merely a security for money and every person deriving title to the mortgage under the original mortgagee; and mortgage has a corresponding meaning.

payment, in relation to stocks and securities, includes the deposit or transfer of them.

person includes a trustee corporation, a corporation sole and a corporation aggregate.

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

person not under a disability, and any like expression, means a person of full age and full mental capacity.

possession includes receipt of income or the right to receive the income (if any); and possessed applies to receipt of income of and to any vested estate less than a life interest, at law or in equity, in possession or in expectancy in any land.

property ...

public accountant means—

(a)a person registered, or taken to be registered, as an auditor under the Corporations Act; or

(b)a member of the Australian Society of Certified Practising Accountants or the Institute of Chartered Accountants in Australia; or

(c)a person who holds a public practising certificate issued by the Institute of Public Accountants and has completed a tertiary course of study in accounting with an auditing component from a university or institute prescribed under the Corporations Act, section 1280(2A); or

(d)a person approved by the chief executive who has completed a tertiary course of study in accounting with an auditing component from a university or institute prescribed under the Corporations Act, section 1280(2A).

Public Curator ...

public trustee means the public trustee constituted by the Public Trustee Act 1978.

registered valuer means a valuer registered under the Valuers Registration Act 1992.

registrar means the registrar of titles.

rent includes a rent service or a rent charge, or other rent, toll, duty, royalty or annual or periodic payment in money or money’s worth reserved or issuing out of or charged upon land, but does not include mortgage interest.

repealed Acts means the Acts that pursuant to the Trustees and Executors Acts Amendment Act 1964 might have been cited as the Trustees and Executors Acts 1897 to 1964.

sale includes an exchange.

securities includes debentures, stock and shares; and securities payable to bearer includes securities transferable by delivery or by delivery and endorsement.

statutory trustee means a person—

(a)who, in respect of land referred to in section 6 may exercise the powers by this Act conferred or capable of being conferred on a trustee; but

(b)who, apart from this Act, is not a trustee of such land.

stock includes 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 corporation or society, or by instrument of transfer, either alone or accompanied by other formalities, and any share or interest therein.

to convey ...

to pay ...

to sell ...

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.

trust does not include the duties incidental to an estate conveyed by way of mortgage, but with that exception trust extends to implied, resulting, bare and constructive trusts, and to cases where the trustee has a beneficial interest in the trust property, and to the duties incidental to the office of a personal representative.

trustee includes—

(a)a trustee corporation; and

(b)any other corporation in which property subject to a trust is vested; and

(c)any person who immediately before the commencement of this Act was a trustee of the settlement or in any way a trustee under the Settled Land Act 1886 and who, if that Act had not been repealed, would be such a trustee; and

(d)a personal representative; and

(e)a statutory trustee within the meaning of this Act.

trustee corporation means the public trustee or a trustee company under the Trustee Companies Act 1968.

trust property includes—

(a)property settled on any trust, whether express, implied, resulting, bare, or constructive; and

(b)property subject to a trust or direction for sale, however arising; and

(c)land which is lawfully vested in any person for an estate for the person’s own or any other life, or for a term of years determinable on life not being a mere lease at rent, or for any greater estate not being a fee simple absolute; and

(d)land in respect of which any person has, by virtue of any will, a personal licence to reside for the person’s own life, or for the life of any other person or persons, or for any lesser period.

5A   Meaning of investment etc. on the security of property

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.

6   Exercise of powers

(1)Subject to section 31(3), the powers by this Act conferred on a trustee may be exercised by, and the powers by this Act capable of being conferred by the court on a trustee may be conferred upon and, where conferred, may be exercised by, the following persons—

(a)in respect of land which immediately before the commencement of this Act was settled land within the meaning of the Settled Land Act 1886 (the repealed Act)—by the person being of full age and not a mentally ill person who was, or, if more than 1 by the persons being of full age and not mentally ill persons—

(i)who were, in respect of that land, the tenant for life within the meaning of the repealed Act, or who had the powers of the tenant for life under the repealed Act; and

(ii)who if that Act had not been repealed would be the tenant for life or have those powers;

whether or not such powers were or any of such powers was exercisable only with the consent, approval or sanction of some other person or persons or of the court; but where, under the repealed Act, a power was exercisable by any person or persons only upon the written request of the tenant for life, then such person or persons shall have, and shall and may exercise, the powers conferred by this section upon the written request of the person who was tenant for life and who if that Act had not been repealed would be the tenant for life, but not otherwise;

(b)in respect of any other land which is trust property—

(i)if there is, apart from this Act, no trustee of the land—by the person or persons, not under a disability, for the time being beneficially entitled to possession thereof, or to the rents and profits therefrom; or

(ii)if there is, apart from this Act, a trustee of the land—by the trustee; but the trustee shall, unless otherwise directed by the court, exercise the power conferred by section 32 to sell the land if so required in writing by the person (if not under a disability) or, if more than 1, all of the persons (if not under a disability) at that time beneficially entitled to an interest in possession in the land or under the trust of the land;

(c)in respect of any land or other trust property not hereinbefore provided for—by the trustee (if any) of that land or other trust property;

(d)in any case, or where the persons by whom, or at whose direction, the powers conferred by this section are exercisable do not agree—by such person or persons and in such manner as the court may order or direct on application thereto of any person who has, directly or indirectly, an interest, whether vested or contingent, in that property.

(2)Where a trustee has, whether before or after the commencement of this Act, done any act which might lawfully have been done with the prior approval of the court or pursuant to a prior order of the court conferring power under this Act to do such act, the court may—

(a)on the application of any trustee or person interested; and

(b)after notice to such person or persons (if any) as to the court may seem requisite; and

(c)on such terms or conditions as to the court may seem appropriate;

make an order granting approval or conferring power under this Act to do such act, and may make such order retrospective to any prior date or period as to the court seems fit.

(3)An order made pursuant to subsection (2) shall, subject to any term or condition imposed by the court, have the same force and effect as if the approval had been obtained or the power conferred before the doing of the act referred to in the order.

7   Exercise of powers by statutory trustee

Subject to any order or direction of the court, in exercising any power under this Act, a statutory trustee—

(a)shall have regard to the interests of all parties beneficially interested in the property;

(b)shall be in the position of a trustee, and, in relation to the exercise of any power, have—

(i)all the duties and liabilities of a trustee for the parties beneficially interested in the property; and

(ii)all the rights of a trustee and be entitled to all the indemnities and protection of a trustee;

(c)shall, in order to its being invested or otherwise applied in accordance with this Act, pay or procure the payment of any capital money arising on any sale, mortgage, or other dealing with any land—

(i)into court; or

(ii)to a trustee appointed by the court under section 80; or

(iii)otherwise as the court may direct;

(d)shall not, in relation to any such exercise of power, be liable to impeachment of waste.

7A   Effect of exercise of powers

(1)The exercise by a trustee of any power under this Act shall—

(a)to the extent and in the manner to and in which it is expressed or intended to operate and can operate under this Act; and

(b)subject to the requirements of any other Act;

be effectual to dispose of any property thereby intended to be disposed of and to discharge the property from—

(c)any limitations, restrictions, powers and provisions; and

(d)any estates, interests or charges;

to which the property, by reason of its character as such trust property, is or might otherwise become subject.

(2)Nothing in this section affects—

(a)any estate, interest or charge to which the property has or may become subject otherwise than by reason of its character as such trust property;

(b)any estate, interest, charge, or right in or in respect of the property granted or created—

(i)before the date of the disposition referred to in subsection (1); and

(ii)by a person referred to in section 6 or by any predecessor in title of such person.

(3)The exercise by a trustee of any power under this Act or of any like power conferred by the trust instrument—

(a)shall not occasion any forfeiture;

(b)shall not, except as provided by this Act, be capable of being restrained, prohibited, prevented or impaired by any provision of or limitation in, any contract, covenant, settlement, will, assurance or other instrument.

(4)In this section—

dispose of shall include any sale, exchange, partition, lease, mortgage, transfer or charge and the creation or grant of any right in or in respect of property.

8   Application to court to review acts and decisions

(1)Any person who has, directly or indirectly, an interest, whether vested or contingent, in any trust property or who has a right of due administration in respect of any trust, and who is aggrieved by any act, omission or decision of a trustee or other person in the exercise of any power conferred by this Act or by law or by the instrument (if any) creating the trust, or who has reasonable grounds to apprehend any such act, omission or decision by which the person will be aggrieved, may apply to the court to review the act, omission or decision, or to give directions in respect of the apprehended act, omission or decision; and the court may require the trustee or other person to appear before it and to substantiate and uphold the grounds of the act, omission or decision which is being reviewed and may make such order in the premises (including such order as to costs) as the circumstances require.

(2)An order of the court under subsection (1) shall not—

(a)disturb any distribution of the trust property, made without breach of trust, before the trustee became aware of the making of the application to the court; or

(b)affect any right acquired by any person in good faith and for valuable consideration.

(3)Where any application is made under this section, the court may—

(a)if any question of fact is involved—determine that question or give directions as to the manner in which that question shall be determined; and

(b)if the court is being asked to make an order which may adversely affect the rights of any person who is not a party to the proceedings—direct that that person shall be made a party to the proceedings.

9   Effect of conversion of property under statutory power

Where in consequence of the exercise of any power under this Act realty is converted into personalty or personalty is converted into realty, such personalty or realty shall be held—

(a)upon trusts corresponding as nearly as the law and circumstances permit with the trusts (if any) affecting the property prior to conversion; or

(b)if there are no trusts—subject to limitations, conditions, powers, or directions corresponding as nearly as the law and circumstances permit with those affecting the property prior to conversion.

Part 2    Appointment and discharge of trustees—devolution of trusts

10   Application of part

Except where otherwise provided in this part, the provisions of this part shall apply whether or not a contrary intention is expressed in the instrument (if any) creating the trust.

11   Limitation of the number of trustees

(1)Where, at the commencement of this Act, there are more than 4 trustees of any property no new trustees shall (except where as a result of the appointment the number is reduced to 4 or less) be capable of being appointed until the number is reduced to less than 4, and thereafter the number shall not be increased beyond 4.

(2)In the case of trusts made or coming into operation after the commencement of this Act—

(a)the number of trustees thereof shall not in any case exceed 4, and where more than 4 persons are named as such trustees, the 4 first named (who are able and willing to act) shall alone be the trustees, and the other persons named shall not be trustees unless appointed on the occurrence of a vacancy;

(b)the number of the trustees shall not be increased beyond 4.

(3)Nothing in this section shall apply—

(a)to property vested or to be vested in trustees for charitable purposes; or

(b)to property vested or to be vested in trustees where the Minister has given a certificate in writing that the Minister approves of the number of trustees in whom the property is or is to be vested.

(4)A custodian trustee shall not be counted as a trustee for the purpose of this section.

12   Power of appointing new trustees

(1)Where a trustee, whether original or substituted, and whether appointed by the court or otherwise—

(a)is dead; or

(b)remains out of the State for more than 1 year without having properly delegated the execution of the trust; or

(c)seeks to be discharged from all or any of the trusts or powers reposed in or conferred on the trustee; or

(d)refuses to act therein; or

(e)is unfit to act therein; or

(f)is incapable of acting therein; or

(g)is an infant; or

(h)being a corporation, has ceased to carry on business, is under official management, is in liquidation or has been dissolved;

then the person nominated for the purpose of appointing new trustees by the instrument (if any) creating the trust, or if there is no such person or no such person able and willing to act, then the surviving or continuing trustee or trustees for the time being, or the personal representative of the last surviving or continuing trustee, may by writing appoint a person or persons (whether or not being the person or persons exercising the power) to be a trustee or trustees in the place of the trustee first in this subsection mentioned.

(2)On the appointment of a trustee or trustees for the whole or any part of the trust property—

(a)the number of trustees may, subject to the restriction imposed by this Act on the number of trustees, be increased; and

(b)a separate set of trustees may be appointed for any part of the trust property held on trusts distinct from those relating to any other part, and whether or not new trustees are or are to be appointed for any other part of the trust property; and any existing trustee may be appointed or remain 1 of the separate set of trustees; or if only 1 trustee were originally appointed, then 1 separate trustee may be so appointed for the part of the trust first in this paragraph mentioned; and

(c)it is not obligatory to fill up the original number of trustees where 2 or more trustees were originally appointed; but (except where only 1 trustee was originally appointed or where the trust instrument otherwise provides) a trustee is not discharged under this section unless—

(i)in the case of any trust (including a trust referred to in subparagraph (ii))—there will remain either a trustee corporation or at least 2 individuals to act as trustees of the trust; or

(ii)in the case of a trust for any charitable or public purpose or for any purpose of recreation or other leisuretime use or occupation—there will remain a local government to act as trustee of the trust; and

(d)any assurance or thing requisite for vesting the trust property, or any part thereof, jointly in the persons who are the trustees shall be executed or done.

(3)Where a trustee has been removed under a power contained in the instrument creating the trust, a new trustee or new trustees may be appointed in the place of the trustee who is removed, as if that trustee were dead, or, in the case of a corporation, as if the corporation had been dissolved, and the provisions of this section shall apply accordingly.

(4)The power of appointment given by subsection (1), or any similar previous enactment, to the personal representative of the last surviving or continuing trustee is and shall be deemed always to have been exercisable by the administrator for the time being of that trustee or the executor for the time being, whether original or by representation, of that surviving or continuing trustee who has proved the will of his or her testator without the concurrence of any executor who has renounced or has not proved.

(5)Where, in the case of any trust, there are not more than 3 trustees (none of them being a trustee corporation or a local government), then—

(a)the person or persons nominated for the purpose of appointing new trustees by the instrument (if any) creating the trust; or

(b)where there is no person nominated for the purpose of appointing new trustees by the instrument creating the trust, or no such person able and willing to act, then the trustee or trustees for the time being;

may, by writing, appoint a person or persons (whether or not being the person or persons exercising the power) to be an additional trustee or additional trustees, but it shall not be obligatory to appoint any additional trustee unless the instrument (if any) creating the trust, or any statutory enactment, provides to the contrary; but (except where the Minister has given a certificate in writing that the Minister approves the appointment of the additional trustees) on any appointment of additional trustees under this subsection the number of trustees shall not be increased beyond 4.

(6)Every new trustee appointed under this section has the same powers, authorities, and discretions and may in every respect act, as if the new trustee had originally been appointed a trustee by the instrument (if any) creating the trust, both before and after all the trust property becomes by law or by assurance or otherwise vested in the trustee.

(7)The provisions of this section which are brought into effect by the circumstance that a person nominated trustee (whether sole or otherwise) in a will is dead are brought into effect whether the death of that person occurred before or after the death of the testator; and the provisions relative to a continuing trustee relate also to a refusing or retiring trustee, if willing to act in the execution of the provisions of this section.

(8)The provisions of this section relating to a person nominated for the purpose of appointing new trustees apply whether the appointment is made in a case specified in this section or in a case specified in the instrument (if any) creating the trust, but where a new trustee is appointed under this section in a case specified in that instrument, the appointment shall be subject to the terms applicable to an appointment in that case under the provisions of that instrument.

(9)In this section—

trustee does not include a personal representative as such.

(10)In this section—

trustee corporation—

(a)includes the public trustee of another State, or a person in that State discharging functions similar to the public trustee of this State;

(b)includes a trustee corporation authorised by the laws of another State to administer the estate of deceased persons and other trust estates.

13   Evidence as to a vacancy in a trust

(1)Where any instrument appointing a new trustee contains a statement as to how a vacancy in the office of trustee occurred, that statement is conclusive evidence, in favour of a subsequent purchaser in good faith, of the circumstances under which the vacancy occurred.

(2)Any vesting of trust property consequent upon an appointment of a new trustee containing a statement as to how a vacancy in the office of trustee occurred is valid in favour of any subsequent purchaser in good faith.

(3)The protection afforded to a purchaser by this section extends to the registrar or other person registering or certifying title.

(4)This section applies to instruments of appointment signed either before or after the commencement of this Act.

14   Retirement of trustee without a new appointment

(1)This section applies where a trustee declares by writing that the trustee is desirous of being discharged from all or any or any part of the trusts reposed in the trustee, and after the trustee’s discharge there will be a trustee corporation or at least 2 individuals to act as trustees to perform the trust or part of the trust from which that trustee desires to be discharged.

(2)In any case to which this section applies, if the co-trustees and such other person (if any) as is empowered to appoint trustees consent by writing to the discharge of the trustee, and to the vesting in the co-trustees alone of the trust property, the trustee desirous of being discharged—

(a)shall be deemed to have retired from the trusts from which the trustee has declared the trustee desires to be discharged; and

(b)shall, by the writing by which consent is given to the trustee’s discharge, be discharged from the trusts under this Act;

without any new trustee being appointed in his or her place.

15   Vesting of trust property in new and continuing trustees

(1)Where a new trustee is appointed the instrument of appointment vests, subject to the provisions of any other Act, the trust property in the persons who become and are the trustees as joint tenants without any conveyance, transfer or assignment.

(2)Where a trustee is discharged in accordance with the provisions of section 14 the instrument of discharge divests the trust property from the discharged trustee and, subject to the provisions of any other Act, vests it in the continuing trustees as joint tenants without any conveyance, transfer or assignment.

(3)Where, by reason of the provisions of any other Act or for the protection of any trust property, it is requisite that the vesting in a new trustee or divesting from a discharged trustee should be notified to or registered or recorded by the registrar or other person having the duty or function of registering or recording any discharge or appointment of trustees or divesting or vesting or other dealings under that Act, the trustees shall—

(a)execute and produce to the registrar or such other person such instrument or instruments as may be necessary; and

(b)do such other act or acts as may properly be required by the registrar or such other person;

for the purpose of effecting such notification, registration or recording; and an instrument of appointment or discharge shall be deemed a conveyance from the persons in whom the trust property was previously vested to the persons in whom it vests by virtue of such instrument.

(4)Where trust property has vested in the public trustee pursuant to section 16(2) it shall not be necessary to notify, register or record such vesting if the public trustee has not acted in regard to the trusts or if the only action taken by the public trustee has been the appointment of a new trustee.

(5)Where the consent of any person is requisite to the conveyance, transfer or assignment of any trust property the vesting of that property in accordance with the provisions of this section is subject to that consent; but the consent may be obtained after the execution of the instrument of appointment or discharge by the persons who are then trustees.

(6)An instrument of appointment or discharge shall not operate as a breach of covenant or condition or occasion any forfeiture of any lease, underlease, agreement for lease, or other property.

16   Devolution of trust assets and trust powers upon death

(1)Where a power or trust is given to or imposed on 2 or more trustees jointly, the same may be exercised or performed by the survivors or survivor of them for the time being.

(2)Upon the death of a sole trustee or, where there were 2 or more trustees, of the last surviving or continuing trustee, the trust property shall devolve to and vest in the public trustee and shall remain vested in the public trustee until—

(a)an appointment of a new trustee is made and (unless the appointment is made by the public trustee) notice in writing of the appointment is given to the public trustee, whereupon the trust property shall devolve to and vest in the person so appointed subject to and in accordance with the provisions of section 15; or

(b)if no such appointment is made—a grant of probate or letters of administration of the estate of the deceased trustee is made and notice in writing of such grant and of his or her intention to assume the trust of the trust property is given to the public trustee by the person to whom the grant was made, whereupon the trust property shall devolve to and vest in such person who shall be deemed to be the person appointed by the person nominated for the purpose of appointing new trustees.

(3)Trust property vested by virtue of this section in the public trustee shall vest in the public trustee, notwithstanding the fact that no instrument has been executed appointing the public trustee as trustee, in the like manner and subject to the same provisions as trust property which vests in a new trustee by virtue of section 15.

(4)Trust property vested by virtue of this section in a person to whom a grant of probate or letters of administration of the estate of a deceased trustee has been made shall vest in the person in like manner and subject to the same provisions as trust property which vests in a new trustee by virtue of section 15.

(5)While the trust property is vested in the public trustee under this section the public trustee shall have the same powers, authorities and discretions, and may in every respect act, as if the public trustee had originally been appointed a trustee by the instrument (if any) creating the trust; but unless the court, in special circumstances, otherwise directs it shall not be obligatory for the public trustee to exercise any of such powers, authorities or discretions.

(6)Where the trust property vests by virtue of this section in the person to whom a grant of probate or letters of administration of the estate of the deceased trustee is made that person shall have all the powers, authorities and discretions and in every respect act as if the person had originally been appointed a trustee by the instrument (if any) creating the trust.

(7)Where by virtue of this section trust property is divested from the public trustee in consequence of an appointment of a new trustee or a grant of probate or letters of administration of the estate of the deceased trustee all liability on the part of the public trustee (other than liability for which the public trustee is not entitled to be indemnified out of the trust property) in respect of any action taken by the public trustee with regard to the trust property shall cease; but any person who, but for this provision, would have had a remedy against the public trustee shall have the like remedy against the person in whom the trust property has vested pursuant to such appointment of new trustee or grant of probate or letters of administration.

(8)Nothing in this section shall deprive the public trustee of any power which the public trustee has or may exercise under the Public Trustee Act 1978, section 62.

(9)In this section—

trustee does not include a personal representative as such.

trust property includes any property vested in the trustee as mortgagee.

17   Devolution of mortgage estates on death

(1)An estate or interest in property vested solely in any person (not being a trustee) by way of mortgage shall upon the person’s death devolve to and vest in the public trustee until a grant of probate or letters of administration to the estate of the deceased mortgagee is made when the mortgaged property shall devolve to and vest in the person to whom the grant is made.

(2)While the property is vested in the public trustee under this section the public trustee shall have the same powers, authorities and discretions and may in every respect act, as if the public trustee were originally the mortgagee of the property.

(3)Nothing in this section shall deprive the public trustee of any power which the public trustee has or may exercise under the Public Trustee Act 1978, section 61.

18   Disclaimer of trusts on renunciation of probate

(1)Where a person appointed by will both executor and trustee thereof renounces probate, or after being duly cited or summoned fails to apply for probate, the renunciation or failure shall be deemed to be a disclaimer of the trust contained in the will.

(2)Where any person appointed by will both executor and trustee thereof—

(a)renounces probate; or

(b)after being duly cited or summoned fails to apply for probate; or

(c)dies before probate is granted to the person;

and letters of administration with the will annexed are granted to any other person, the person who obtains the grant shall, by virtue of the grant and without further appointment, be deemed to be appointed trustee of the will in the place of the person who was appointed by the will.

19   Custodian trustees

(1)Subject to the provisions of this section and to the instrument (if any) creating the trust, any corporation may be appointed to be custodian trustee of any trust in any case where, and in the same manner as, it could be appointed to be trustee.

(2)Subject to the provisions of the instrument (if any) creating the trust, where a custodian trustee is appointed of any trust—

(a)the trust property shall be vested in the custodian trustee as if the custodian trustee were the sole trustee, and for that purpose vesting orders may, where necessary, be made under this Act; and

(b)the management of the trust property and the exercise of all powers and discretions exercisable by the trustee under the trust shall be and remain vested in managing trustees other than the custodian trustee (the managing trustees) as fully and effectually as if there were no custodian trustee; and

(c)the sole function of the custodian trustee shall be to get in and hold the trust property and invest its funds and dispose of the assets as the managing trustees in writing direct, for which purpose the custodian trustee shall execute all such documents and perform all such acts as the managing trustees in writing direct; and

(d)for the purposes of paragraph (c), a direction given by the majority of the managing trustees, where there are more than 1, shall be deemed to be given by all the managing trustees; and

(e)the custodian trustee shall not be liable for acting on any direction to which paragraph (c) refers; but if the custodian trustee is of opinion that any such direction conflicts with the trusts or the law, or exposes the custodian trustee to any liability, or is otherwise objectionable, the custodian trustee may apply to the court for directions in the matter; and any order giving directions shall bind both the custodian trustee and the managing trustees; and the court may make such order as to costs as it thinks proper; and

(f)the custodian trustee shall not be liable for any act or default on the part of any of the managing trustees; and

(g)all actions and proceedings touching or concerning the trust property shall be brought or defended in the name of the custodian trustee at the written direction of the managing trustees, and the custodian trustee shall not be liable for the costs thereof apart from any payable out of the trust property; and

(h)a person dealing with the custodian trustee shall not be concerned to inquire as to any direction, concurrence or otherwise of the managing trustees or be affected by notice of the fact that the managing trustees have not concurred; and

(i)the power of appointing new trustees, when exercisable by the trustee, shall be exercisable by the managing trustees alone, but the custodian trustee shall have the same power as any other trustee of applying to the court for the appointment of a new trustee.

(3)On the application of the custodian trustee or of any of the managing trustees or of any beneficiary and on satisfactory proof that it is the general wish of the beneficiaries or that on other grounds it is expedient to terminate the custodian trusteeship, the court may make an order for that purpose and may also make such vesting orders and give such directions as in the circumstances seem to the court to be necessary or expedient.

Part 3    Investments

20   Application of particular provisions

Sections 29 to 30C apply despite anything contained in the instrument creating the trust.

21   Power of trustee to invest

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

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

(b)at any time, vary an investment or realise an investment of trust funds and reinvest an amount resulting from the realisation in any form of investment.

22   Duties of trustee in relation to power of investment

(1)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 for other persons—exercise the care, diligence and skill a prudent person engaged in that profession, business or employment would exercise in managing the affairs of other persons; or

(b)if the trustee’s profession, business or employment is not, or does not include, acting as a trustee or investing money for other persons—exercise the care, diligence and skill a prudent person of business would exercise in managing the affairs of other persons.

(2)A trustee must, in exercising a power of investment, comply with a provision of the instrument creating the trust that is binding on the trustee and requires the obtaining of a consent or approval or compliance with a direction for trust investments.

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

23   Law and equity preserved

(1)A rule or principle of law or equity imposing a duty on a trustee exercising a power of investment continues to apply except so far as it is inconsistent with this or another Act or the instrument creating the trust.

(2)Without limiting the rules or principles mentioned in subsection (1), they include a rule or principle imposing—

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

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

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

(d)a duty to obtain advice.

(3)A rule or principle of law or equity relating to a provision in an instrument creating a trust that purports to exempt, limit the liability of, or indemnify a trustee in relation to a breach of trust, continues to apply.

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

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

(1)Without limiting the matters 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 the following matters—

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

(b)the desirability of diversifying trust investments;

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

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

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

(f)the potential for capital appreciation;

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

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

(i)the probable duration of the trust;

(j)the liquidity and marketability of the proposed investment during, and at the end of, the term of the proposed investment;

(k)the total value of the trust estate;

(l)the effect of the proposed investment for the tax liability of the trust;

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

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

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

(2)A trustee—

(a)may obtain, and if obtained must 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)may pay out of trust funds the reasonable costs of obtaining the advice.

25   Powers of trustee in relation to securities

(1)If securities of a corporation are subject to a trust, the trustee may agree to a scheme or arrangement—

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

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

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

(d)for the amalgamation of the corporation with another corporation; or

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

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

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

(3)If a conditional or preferential right to subscribe for securities in a corporation is offered to a trustee for a holding in that corporation or another corporation, the trustee may, for 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 to any person, including a beneficiary under the trust, the benefit of the right, or the title to the right, 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 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 to securities whether acquired before or after the commencement of this section.

26   Investment in securities under RITS

(1)A chose in action arising under RITS that entitles its holder to a security of a particular description (the underlying security) is, for 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 mentioned in subsection (1) is taken to be an investment by the trustee in the underlying security.

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

(4)In this section—

RITS means the Reserve Bank of Australia’s Information and Transfer System, as operating from time to time.

27   Power of trustee as to calls on shares

A trustee may—

(a)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 corporation, exercise the power conferred by paragraph (a) despite the shares on which the calls are made being shares in the trustee corporation.

28   Power to purchase dwelling house as residence for beneficiary

(1)A trustee may—

(a)purchase a dwelling house for a beneficiary to use as a residence; or

(b)enter into an 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 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 the conditions consistent with the trust and the extent of the beneficiary’s interest that the trustee considers appropriate.

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

(5)In this section—

dwelling house includes—

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

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

29   Power of trustee to retain investments

A trustee is not liable for breach of trust only because the trustee continues to hold an investment that has stopped being an investment—

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

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

(c)made under this part as previously in force from time to time; or

(d)authorised by another Act or the general law.

30   Loans and investments by trustees not breaches of trust in particular circumstances

(1)If a trustee lends an amount on the security of property, the trustee is not in breach of trust only on the ground of the comparison of the amount of the loan with the value of the property at the time when the loan was made—

(a)if it appears to the court that—

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

(ii)the amount of the loan was not more than two-thirds of the value of the property as stated in the report; and

(iii)the loan was made in reliance on the report; or

(b)if the trustee is insured by an entity prescribed under a regulation carrying on the business of insurance against all loss that may arise because of the default of the borrower.

(2)If a trustee lends an amount on the security of leasehold property, the trustee is not in breach of trust only because the trustee dispensed, either completely or in part, with the production or investigation of the lessee’s title when making the loan.

(3)This section applies to transfers of existing securities as well as to new securities and to investments whether made before or after the commencement of this section.

30A   Limitation of liability of trustee for loss on improper investments

(1)If a trustee improperly lends trust money on a security that would have been a proper investment if the amount lent had been less than the actual amount lent—

(a)the security is to be taken to be a proper investment in relation to the lesser amount; and

(b)the trustee is only liable to make good the difference between the amount advanced and the smaller amount, with interest.

(2)This section applies to investments whether made before or after the commencement of this section.

30B   Court may take into account investment strategy etc. in action for breach of trust

In a proceeding against a trustee for a breach of trust in relation to 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 the following matters—

(a)the nature and purpose of the trust;

(b)whether the trustee had regard to the matters set out in section 24 so far as they are appropriate to the circumstances of the trust;

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

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

30C   Power 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 relation to 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 the 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.

Part 4    General powers of trustees

31   Application of part

(1)Except where otherwise provided in this part, the provisions of this part shall apply whether or not a contrary intention is expressed in the instrument (if any) creating the trust.

(2)The powers conferred on a trustee by this part are exercisable by the trustee notwithstanding any lapse of time, or that all the beneficiaries are absolutely entitled to the trust property and are not under a disability, except so far as such powers are expressly revoked by all such beneficiaries by notice in writing to the trustee.

(3)A statutory trustee shall not, except with the sanction of the court, exercise any of the powers conferred by section 32(1), other than the power conferred by section 32(1)(d), or by section 45.

32   Powers to sell, exchange, partition, postpone, lease etc.

(1)Subject to the provisions of this section, every trustee, in respect of any trust property, may—

(a)sell the property or any part of the property;

(b)dispose of the property by way of exchange for other property in the State of a like nature and a like or better tenure, or, where the property consists of an undivided share, concur in the partition of the property in which the share is held, and give or take any property by way of equality of exchange or partition;

(c)postpone the sale, calling in, and conversion of any property that the trustee has a duty to sell, other than property that is of a wasting, speculative or reversionary nature;

(d)let or sublet the property at a reasonable rent for any term not exceeding 1 year, or from year to year, or for a weekly, monthly, or other like tenancy or at will; or enter into any sharefarming agreement with respect to the property on reasonable terms for any period not exceeding 1 year; and renew any such lease or tenancy or sharefarming agreement;

(e)grant a lease or sublease of the property for any term not exceeding—

(i)in the case of a building lease—30 years; or

(ii)in the case of any other lease (including a mining lease)—21 years;

to take effect in possession within 1 year next after the date of the grant of the lease or sublease at a reasonable rent, with or without a fine, premium or foregift, any of which if taken shall be deemed to be part of and an accretion to the rental, and shall, as between the persons beneficially entitled to the rental, be considered as accruing from day to day and be apportioned over the term of the lease or sublease;

(f)at any time during the currency of a lease of the property, reduce the rent or otherwise vary or modify the terms thereof, or accept, or concur or join with any other person in accepting, the surrender of any lease.

(2)Any trustee may, on such conditions as the trustee thinks proper, rescind, cancel, modify or vary any contract or agreement for the sale and purchase of any land, or agree to do so, or compromise with or make allowances to any person with whom such a contract or agreement has been made, or who is the assignee thereof in respect of any unpaid purchase money secured on mortgage or otherwise; and without prejudice to the generality of this subsection, a trustee may, by writing, waive or vary any right exercisable by the trustee that 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.

(3)In exercising any power of leasing or subleasing conferred by this section or by the instrument (if any) creating the trust, a trustee may—

(a)grant to the lessee or sublessee a right of renewal for 1 or more terms, at a rent to be fixed or made ascertainable in a manner specified in the original lease or the original sublease, but so that the aggregate duration of the original and of the renewal terms shall not exceed the maximum single term that could be granted in the exercise of the power; or

(b)grant a lease with an optional or compulsory purchasing clause; or

(c)grant to the lessee or sublessee a right to claim compensation for improvements made or to be made by the lessee or sublessee in, upon or about the property which is leased or subleased.

(4)Where there is a power (whether statutory or otherwise) to postpone the sale of any land or authorised investment that a trustee has a duty to sell by reason only of a trust or direction for sale, then, subject to any express direction to the contrary in the instrument (if any) creating the trust, the trustee shall not be in any way liable merely for postponing the sale in the exercise of the trustee’s discretion for an indefinite and unlimited period, whether or not that period exceeds the period during which the trust or direction for sale remains valid; nor shall a purchaser of the land or authorised investment be in any case concerned with any directions respecting a sale; but nothing in this subsection applies to any property of a wasting or speculative nature.

33   Miscellaneous powers in respect of property

(1)Every trustee, in respect of any trust property, may—

(a)expend money (including capital money) subject to the same trusts for the repair, maintenance, upkeep or renovation of the property, whether or not the work is necessary for the purpose of salvage of the property; and

(b)expend money (including capital money) subject to the same trusts, but not, except with the sanction of the court, exceeding $10,000 in the improvement or development of the property; and

(c)expend money (including capital money) subject to the same trusts, in payment of calls on shares subject to those trusts; and

(d)pay out of money (including capital money) subject to the same trusts any rates, premiums, taxes, assessments, insurance premiums and other outgoings in respect of the property; and

(e)where the property is land—subdivide or apply for approval to subdivide the land into blocks and for that purpose construct and dedicate all such roads, streets, access ways, service lanes and footpaths and make all such reserves, and do all such other things and pay all such money (including capital money), as the trustee thinks necessary or as are required by, or under, any Act or local law relating to subdivisions; and

(f)pay out of money (including capital money) subject to the same trusts such sum as the trustee thinks reasonable by way of expenditure upon or contribution toward the construction and maintenance of such roads, streets, access ways, service lanes, and footpaths, and such sewerage, water, electricity, drainage and other works as are in the opinion of the trustee likely to be beneficial to the property, notwithstanding that they are intended to be constructed wholly or partly on land not subject to the same trusts and dedicate land subject to the same trusts as roads, streets, accessways, service lanes and footpaths where in the trustee’s opinion it is likely to be beneficial to the property; and

(g)subject to this Act and to any direction of the court, apportion any payment or expenditure made in pursuance of paragraphs (a) to (f) between capital and income or otherwise among the persons entitled thereto in such manner as the trustee considers equitable, with power, where the whole or part of the payment or expenditure is made out of capital moneys, to recoup capital from subsequent income, if that course would be equitable in all the circumstances; and

(h)grant easements and profits a prendre and enter into party wall agreements and agreements that relate to fencing, and execute all necessary documents to give effect thereto; and

(i)as mortgagor or mortgagee, agree to the renewal, extension or variation of the mortgage for such period and on such terms and conditions as the trustee thinks fit; but—

(i)the powers conferred by this paragraph may be exercised by a trustee as mortgagor for the purpose of raising additional money on the security of a mortgage of any property, where the trustee would have power under section 45 to raise money by a mortgage of the property, and not otherwise; and

(ii)nothing in this paragraph authorises any trustee to advance money on the security of any mortgage that would not be an authorised investment in respect of the amount advanced; and

(j)make such inquiries, by way of advertisement or otherwise, as the trustee thinks necessary for the purpose of ascertaining the next of kin or beneficiaries; and

(k)where the property includes a life policy and there is no money or insufficient money available for the payment of premiums on the policy, surrender the policy for money or accept instead of the policy a fully paid-up policy or vary the terms of the policy in such manner as the trustee thinks fit; and

(l)appropriate any part of the property in or towards satisfaction of any legacy payable thereout or in or towards satisfaction of any share of the trust property (whether settled, contingent or absolute) to which any person is entitled, and for that purpose value the whole or any part of the property in accordance with section 51; but—

(i)the appropriation shall not be made so as to affect adversely any specific gift; and

(ii)before any such appropriation is effectual, notice thereof shall be given to all persons not under a disability who are interested in the appropriation, and to the parent or guardian of any infant who is interested in the appropriation, and to the person having the care and management of the estate of any person who is not of full mental capacity, and any such person may within 1 month after receipt of the notice or, upon the person’s application to the court within that month, within such extended period as the court may allow, apply to the court to vary the appropriation, and the appropriation shall be conclusive save as varied by the court; and

(m)where provision is made in any instrument creating a trust for payment of an annuity or other periodic payment, and notwithstanding that the annuity or payment may by the instrument be charged upon the trust property or upon any part thereof—set aside and appropriate out of property available for payment of the annuity and invest a sum sufficient in the opinion of the trustee at the time of appropriation to provide out of the income thereof the amount required to pay the annuity or periodic payment, and so that after the appropriation shall have been made—

(i)the annuitant shall have the same right of recourse to the capital and income of the appropriated sum as the annuitant would have had against the trust property if no appropriation had been made; and

(ii)the trustee may forthwith distribute the residue of the trust property and the income thereof (which residue and income shall no longer be liable for the annuity) in accordance with the trusts declared of and concerning the same; and

(n)do or omit all acts and things, and execute all instruments necessary to carry into effect the powers and authorities given by this Act or by or under the instrument creating the trust.

(2)Nothing in subsection (1)(l) shall be read as requiring a trustee to give to himself or herself, in some other capacity, notice of an appropriation; but, where a trustee would, but for this subsection, be obliged to give to himself or herself such a notice, the appropriation is not effectual until it has been approved by all the beneficiaries being persons not under a disability, or by the court on the ex parte application of the trustee or otherwise.

(3)Any notice which is to be served in accordance with subsection (1)(l) may be served—

(a)by delivering it to the person for whom it is intended or by sending it by prepaid registered letter addressed to that person at the person’s usual or last known place of abode or business; or

(b)in such other manner as may be directed by the court.

(4)Where a notice is sent by post as provided by this section, it shall be deemed to be served at the time at which the letter would have been delivered in the ordinary course of post.

(5)Where a trustee desires to distribute, under the provisions of subsection (1)(m)(ii), any land subject to the provisions of the Land Title Act 1994, or any other Act, the trustee shall in writing notify the registrar or other person (if any) having the duty or function of registering or recording dealings under such Act, that the land is, by reason of an appropriation made in pursuance of subsection (1)(m)(ii), distributable, and the registrar or such other person shall not be concerned to make any inquiry as to the sufficiency of the appropriated sum.

34   Power of trustee to sell by auction etc.

(1)A trustee may sell or concur with any other person in selling all or any part of the trust property, either subject to prior encumbrances or not, and either together or in lots, by public auction, by public tender or by private contract, subject to any such conditions respecting title or evidence of title or other matters 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 resell, without being answerable for any loss.

(2)A trust or power to sell or dispose of land includes a trust or power to sell or dispose of part thereof, whether the division is horizontal, vertical or made in any other way; and also includes a trust or power to sell or dispose of any building, fixture, timber or other thing affixed to the soil apart and separately from the land itself.

(3)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 does not invalidate and shall not 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 a charge over it, and neither the registrar of titles nor any other person registering or certifying title, shall be affected by notice of, or be concerned to inquire whether there has been, a contravention of this subsection.

35   Power to sell subject to depreciatory conditions

(1)A sale by a trustee shall not 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)A sale by a trustee shall not, after the execution of the conveyance or transfer, 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 for sale was made.

(3)A purchaser, upon any sale by a trustee, shall not be at liberty to make any objection against the title upon any of the grounds in this section mentioned.

36   Mortgage on sale of land

(1)Where a trustee sells land for an estate in fee simple, the trustee may, where the proceeds are liable to be invested, contract that the payment of any part, not exceeding two-thirds of the purchase money shall be secured by a first legal or first statutory mortgage of the land sold, with or without the security of any other property, and the 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 and by storm and tempest to their full insurable value.

(2)The trustee shall not be bound to obtain any report as to the value of the land or other property to be comprised in such a mortgage as is mentioned in subsection (1), or any advice as to the making of the loan, and shall not be liable for any loss that 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) 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.

37   Deferred payment on sale of property

(1)A sale of property by a trustee, in exercise of any power vested in the trustee in that behalf by the instrument creating the trust or by or under this Act or any other enactment, may be on terms of deferred payment.

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

(3)The terms upon which property is sold shall, in addition to such other provisions as the trustee may think proper, include provisions giving effect to the following, namely that—

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

(b)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 property were the person’s own, have accepted in the circumstances in order to sell the property to the best advantage, and in any case the whole purchase money shall be payable within a period not exceeding 10 years from the date of sale;

(c)if any instalment or interest or part thereof is in arrear and unpaid for 6 months, or for such less period as may be specified, the whole of the purchase money shall become due and payable;

(d)the purchaser shall maintain and protect the property, and, in the case of land, keep all buildings (if any) thereon insured against loss or damage by fire and by storm and tempest to their full insurable value.

(4)Notwithstanding that the property has been sold on terms of deferred payment, the trustee may, at any time after one-third of the purchase money has been paid, convey the property and take a mortgage to secure payment of the balance of the purchase money and interest, with or without the security of any other property.

(5)Whether the sale is made under the order of the court or otherwise, the court may make such order as it thinks fit as to the terms of deferred payment.

(6)A trustee selling property on terms authorised by this section or by any order of the court shall not be affected by section 30 in respect of so much of the purchase money as is payable under an agreement for sale or is secured by a mortgage, and shall not be liable for any loss that may be incurred by reason only of the security being insufficient at the date of the agreement or mortgage.

(7)For the purposes of any consent or direction required by the instrument (if any) creating the trust or by statute, a trustee selling property on terms of deferred payment shall be deemed not to be lending money or investing trust funds.

38   Surrender of onerous leases or property

(1)Where a leasehold is vested in a trustee 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, the trustee may surrender, or concur in surrendering, the lease; and the trustee shall not be chargeable with breach of trust nor shall the surrender be impeached by any beneficiary upon the ground only that the covenants were not of such a nature, if the trustee has acted bona fide and on the advice of a registered valuer, whom the trustee reasonably believed to be competent, instructed and employed independently of the lessor, whether the valuer carried on business in the locality where the property is situate or elsewhere.

(2)Where a freehold is vested in a trustee and the property is of so onerous a nature that it would not be in the interests of the beneficiaries to retain the property, if the Crown agrees to accept the surrender of the freehold, the trustee may surrender, or concur in surrendering, it to the Crown; and the trustee shall not be chargeable with breach of trust nor shall the surrender be impeached by any beneficiary upon the ground only that the property was not of such a nature, if the trustee has acted bona fide and on the advice of a registered valuer, whom the trustee reasonably believed to be competent, whether that valuer carried on business in the locality where the property is situate or elsewhere.

(3)A subsequent purchaser or the registrar or other person registering or certifying title shall not be concerned to inquire whether a surrender was authorised by this section.

39   Power to renew leases

(1)A trustee of any leasehold for life or lives or years which is renewable under any covenant or contract or by custom or usual practice may, if the trustee thinks fit, and shall, if thereto required by any person having any beneficial interest, present or future or contingent, in the leasehold, use the trustee’s best endeavours to obtain from time to time a renewed lease of the same hereditaments on the agreed or reasonable terms, and for that purpose may from time to time make or concur in making a surrender of the lease for the time being subsisting, and do all such other acts as are requisite; but where, by the terms of the instrument (if any) creating the trust, the person in possession for the person’s life or other limited interest is entitled to enjoy the same without any obligation to renew, or to contribute to the expense of renewal, this section does not apply unless the consent in writing of that person is obtained to the renewal.

(2)A trustee obtaining a renewal of a lease under the powers conferred by this section or otherwise may pay or apply capital money subject to the trust, for the purpose of obtaining the renewal.

40   Power to purchase equity of redemption in lieu of foreclosure

A trustee may, in lieu of proceeding to foreclosure, purchase the equity of redemption of land the subject of a mortgage held by the trustee under which default has been made where the moneys expended in that purchase are subject to the same trusts as the mortgage debt; but in no case shall the moneys paid by way of consideration for such purchase exceed 5% of the amount due under the mortgage.

41   Release of equity of redemption in discharge of mortgage debt

(1)Where an equity of redemption is vested in a trustee and the mortgaged property is not of greater value than the amount of the mortgage debt, the trustee may release the equity of redemption to the mortgagee in discharge of the mortgage debt or part thereof; and the trustee shall not be chargeable with breach of trust nor shall the release be impeached by any beneficiary upon the ground only that the mortgaged property was of greater value than the amount of the mortgage debt or of the part thereof discharged, if the trustee has acted bona fide and on the advice of a registered valuer, whom the trustee reasonably believed to be competent, instructed and employed independently of the mortgagee, whether the valuer carried on business in the locality where the property is situate or elsewhere.

(2)A subsequent purchaser or the registrar or other person registering or certifying title shall not be concerned to inquire whether a release was authorised by this section.

42   Application of income by trustee-mortgagee in possession

(1)Where a trustee is entitled, whether severally or as a co-mortgagee, to a debt secured by a mortgage of land in trust as to the whole or part of that debt for persons by way of succession, and the trustee is at the date of commencement of this Act, or at any time after that date becomes, mortgagee in possession of the mortgaged land, the trustee shall apply the net income of the mortgaged land received by the trustee after that date or after the trustee becomes mortgagee in possession—

(a)in discharge of all rents, taxes, rates, and outgoings affecting the mortgaged land; and

(b)in payment of the premiums on any insurances properly payable on the mortgaged property; and

(c)in keeping down all annual sums or other payments and the interest on all principal sums having priority to the mortgage in right whereof the trustee is in possession;

and subject to the rights of the mortgagor, the trustee shall hold the residue of the income so received by the trustee upon the trusts to which the mortgage debt is subject.

(2)The rents, taxes, outgoings, premiums, costs, annual sums, payments and interest to be discharged, kept down and paid, pursuant to subsection (1), shall be those accruing due—

(a)after the date of the commencement of this Act, where the trustee is in possession of the mortgaged land at that date; and

(b)after the date of possession by the trustee, where the entry into possession is after the date of commencement of this Act;

but if at the date of commencement of this Act, or on the date of possession by the trustee, as the case may be, any rents, taxes, rates, outgoings, annual sums, payments, interest or premiums mentioned in subsection (1)(a) to (c) were or are due and unpaid, and such of those rents, taxes, rates, outgoings, annual sums, payments, and premiums as are periodic payments were payable wholly or in part in respect of any period subsequent to the date of commencement or to the date of possession, as the case may be, then the lastmentioned rents, taxes, rates, outgoings, annual sums, payments, and premiums shall, for the purpose of this section, be considered as accruing from day to day and shall be apportionable in respect of time accordingly.

(3)On the recovery of the moneys secured by the mortgage, whether in whole or in part, and whether by repayment or on realisation of the security or otherwise, such part of the income applied by the trustee in the payments specified in subsection (1)(a) to (c) as would otherwise have been payable as interest to the person entitled to the interest of the mortgage debt shall, as between the persons respectively entitled to the income and corpus of the mortgage debt, be deemed to be arrears of interest payable without interest thereon and the amount received by the trustee shall be apportioned accordingly.

(4)Notwithstanding anything in this section contained, the trustee may, if in the administration of the trust the trustee thinks it necessary so to do, apply income of the mortgaged property received by the trustee after the date of commencement of this Act in payment of any rents, taxes, rates, outgoings, premiums, costs, annual sums, payments and interest, affecting the mortgaged land other than those specified in subsection (2); but the person entitled to the interest on the mortgage debt shall be entitled to recoupment out of the capital of the mortgage debt of all payments made by the trustee under the authority conferred by this subsection.

43   Power of trustee to give receipts

The receipt in writing of a trustee or of any person thereto authorised by the trustee in writing, or, where there are several trustees, of any person or of any 1 or more of such trustees thereto respectively authorised by the trustees in writing, for any money, securities, or other personal property or effects, payable, transferable, or deliverable to the trustee or them, as the case may be, under any trust or power is a sufficient discharge for the same, and effectually exonerates the person paying, transferring, or delivering the same from seeing to the application or being answerable for any loss or misapplication thereof.

44   Power to compound liabilities

A trustee may, if and as the trustee thinks 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 the trustee thinks sufficient; or

(d)accept, make or give 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 trust or to the trust property;

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 the trustee seem expedient, without being responsible for any loss occasioned by any act or thing so done by the trustee in good faith.

45   Power to raise money by sale or mortgage

Where a trustee is authorised by the instrument (if any) creating the trust or by or under this Act or any other Act or by law to expend, pay or apply capital money subject to the trust for any purpose or in any manner, the trustee has 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; and where a trustee, in the exercise of the trustee’s powers in that behalf, purchases any property for the trust, the trustee has and shall be deemed always to have had power to make the purchase on terms of deferred payment or on mortgage of that property.

46   Protection to purchasers and mortgagees dealing with trustees

A purchaser or mortgagee paying or advancing money to the trustee on a sale or mortgage of trust property shall not 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, or that the trustee has power to effect such sale or mortgage.

47   Insurance

(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 the person were acting for himself or herself.

(2)The court may from time to time rescind or vary any order made under this section, or may make any new or further order; but such a rescission or variation of any order shall not affect any act or thing done in reliance on the order before the person doing the act or thing became aware of the application to the court to rescind or vary the order.

(3)An application to the court under this section may be made by the trustees, or by any of them, or by any person beneficially interested under the trust.

95   Power of court to authorise variations of trust

(1)Where property, whether real or personal, is held on trusts arising, whether before or after the commencement of this Act, under any instrument creating the trust, the court may if it thinks fit by order approve on behalf of—

(a)any person having, directly or indirectly, an interest, whether vested or contingent, under the trusts who by reason of infancy or other incapacity is incapable of assenting; or

(b)any person (whether ascertained or not) who may become entitled, directly or indirectly, to an interest under the trusts as being at a future date or on the happening of a future event a person of any specified description or a member of any specified class of persons, so however that this paragraph shall not include any person who would be of that description, or a member of that class (as the case may be) if the said date had fallen or the said event had happened at the date of the application to the court; or

(c)any person unborn; or

(d)any person in respect of any discretionary interest of the person under protective trusts where the interest of the principal beneficiary has not failed or determined;

any arrangement (by whomsoever proposed and whether or not there is any other person beneficially interested who is capable of assenting thereto) varying or revoking all or any of the trusts, or enlarging the powers of the trustees of managing or administering any of the property subject to the trusts.

(1A)However, except—

(a)in the case of an unascertained person whose entitlement is dependent on a future event which the court is satisfied is unlikely to occur; or

(b)where the court approves of an arrangement on behalf of a person referred to in subsection (1)(d);

the court shall not approve an arrangement on behalf of any person unless the carrying out thereof would be for the benefit of that person.

(2)In subsection (1)—

protective trusts means the trusts specified in section 64(1)(a) and (b) or any like trusts, the principal beneficiary has the same meaning as in section 64(1) and discretionary interest means an interest arising under the trust specified in section 64(1)(b) or any like trust.

(3)Notice of an application to the court for an order pursuant to subsection (1) shall be given to such persons as the court may direct.

(4)Nothing in subsections (1) to (3) shall apply to trusts affecting property settled by Act of Parliament.

(5)Nothing in this section shall limit the powers conferred by section 94.

96   Right of trustee to apply to court for directions

(1)Any trustee may apply upon a written statement of facts to the court for directions concerning any property subject to a trust, or respecting the management or administration of that property, or respecting the exercise of any power or discretion vested in the trustee.

(2)Every application made under this section shall be served upon, and the hearing thereof may be attended by, all persons interested in the application or such of them as the court thinks expedient.

97   Protection of trustees while acting under direction of court

(1)Any trustee acting under any direction of the court shall be deemed, so far as regards the trustee’s own responsibility, to have discharged the trustee’s duty as trustee in the subject matter of the direction, notwithstanding that the order giving the direction is subsequently invalidated, overruled, set aside or otherwise rendered of no effect, or varied.

(2)This section does not indemnify any trustee in respect of any act done in accordance with any direction of the court if the trustee has been guilty of any fraud or wilful concealment or misrepresentation in obtaining the direction or in acquiescing in the court making the order giving the direction.

98   Persons entitled to apply to court

(1)An order under this Act for the appointment of a new trustee or concerning any property subject to a trust, may be made on the application of any person beneficially interested in the property, whether under disability or not, or on the application of any person duly appointed trustee thereof or intended to be so appointed.

(2)An order under this Act concerning any interest in any property subject to a mortgage may be made on the application of any person beneficially interested in the property, whether under disability or not, or of any person interested in the money secured by the mortgage.

99   Power of court to make orders in absence of parties

(1)Where in any proceedings the court is satisfied that diligent search has been made for any person, who, in the character of trustee, is made a defendant in any action, to serve the person with a process of the court, and that the person can not be found, the court may hear and determine the proceedings and give judgment therein against that person, in the person’s character of a trustee, as if the person had been duly served or had entered an appearance in the action, and had also appeared by the person’s counsel or solicitor at the hearing, but (except as provided in subsection (2)) without prejudice to any interest the person may have in the matters in question in the proceedings in any other character.

(2)Where any party to any proceedings relating to a trust, or where any person or class of persons that the court thinks should be made a party or parties to those proceedings or otherwise be given an opportunity to attend and be heard in those proceedings, at the time of the proceedings—

(a)is not within the jurisdiction; or

(b)is under disability; or

(c)can not be found; or

(d)is unborn; or

(e)is not capable of being identified or ascertained;

the court may appoint some person to represent that party, person or class, or may proceed in the person’s or their absence, and all orders made in the proceedings are as binding on that party, person or class as if personally present and of full capacity.

100   Power of court to charge costs on trust estate

The court may order the costs and expenses of and incident to any application for an order appointing a new trustee, or for a vesting order, or of and incident to any such order, or any conveyance or transfer in pursuance thereof, or for the directions of the court, to be paid or raised out of the land or personal estate in respect whereof the same is made, or out of the income thereof, or to be borne and paid in such manner and by such persons as to the court may seem just.

101   Remuneration of trustee

(1)The court may, in any case in which the circumstances appear to it so to justify, authorise any person to charge such remuneration for the person’s services as trustee as the court may think fit.

(2)In the absence of a direction to the contrary in the instrument creating the trust, a trustee, being a person engaged in any profession or business for whom no benefit or remuneration is provided in the instrument, is entitled to charge and be paid out of the trust property all usual professional or business charges for business transacted, time expended, and acts done by the person or the person’s firm in connection with the trust, including acts which a trustee not being in any profession or business could have done personally; and, on any application to the court for remuneration under subsection (1), the court may take into account any charges that have been paid out of the trust property under this subsection.

(3)For the purpose of this section—

trustee includes a custodian trustee.

102   Payment into court by trustee

(1)A trustee or trustees, or the majority of trustees, having in his, her or their hands or under his, her or their control money or securities belonging to a trust, may pay the same into court; and the same shall, subject to rules of court, be dealt with according to the orders of the court.

(2)The receipt or certificate of the proper officer shall be a sufficient discharge to the trustee or trustees for the money or securities so paid into court.

(3)Where money or securities are vested in any persons as trustees, and the majority are desirous of paying the same into court, but the concurrence of the other or others can not be obtained, the court may order the payment into court to be made by the majority without the concurrence of the other or others.

(4)Where any money or securities ordered to be paid into court under subsection (3), are deposited with any financial institution, broker, or other depositary, the court may order payment or delivery of the money or securities to the majority of the trustees for the purpose of payment into court.

(5)Every transfer payment and delivery made in pursuance of any order under this section shall be valid and take effect as if the same had been made on the authority or by the act of all the persons entitled to the money and securities so transferred, paid, or delivered.

Part 8    Charities

103   Meaning of charity

(1)The repeal by this Act of the statute 43 Elizabeth chapter 4 (Charitable Uses Act, 1601), shall not affect the established rules of law relating to charity.

(2)Notwithstanding any rule of law to the contrary, it shall be and be deemed always to have been charitable to provide, or to assist in the provision of, facilities for recreation or other leisuretime occupation, if the facilities are provided in the interests of social welfare.

(3)The requirement of subsection (2) that the facilities are provided in the interests of social welfare shall not be satisfied unless—

(a)the facilities are provided with the object of improving the conditions of life for the persons for whom the facilities are primarily intended; and

(b)either—

(i)those persons have need of such facilities by reason of their youth, age, infirmity or disablement, poverty or social and economic circumstances; or

(ii)the facilities are to be available to the members or to the male members or to the female members of the public at large.

(4)Nothing in this section shall be taken to derogate from the principle that, in order to be charitable, a gift, trust or institution must be for the public benefit.

104   Inclusion of non-charitable purpose not to invalidate trust

(1)No trust shall be held to be invalid by reason that some non-charitable and invalid as well as some charitable purpose or purposes is or are or could be deemed to be included in any of the purposes to or for which an application of the trust property or funds or any part thereof is by such trust directed or allowed.

(2)Any such trust shall be construed and given effect in the same manner in all respects as if no application of the trust property or funds or of any part thereof to or for any such non-charitable and invalid purpose had been or should be deemed to have been so directed or allowed.

(3)This section shall not apply to any trust declared before, or to the will of any testator dying before, the commencement of this Act.

105   Occasions for applying property cy pres

(1)Subject to subsection (2), the circumstances in which the original purposes of a charitable trust can be altered to allow the property given or part of it to be applied cy pres shall be as follows—

(a)where the original purposes, in whole or in part—

(i)have been as far as may be fulfilled; or

(ii)can not be carried out; or

(iii)can not be carried out according to the directions given and to the spirit of the trust;

(b)where the original purposes provide a use for part only of the property available by virtue of the trust;

(c)where the property available by virtue of the trust and other property applicable for similar purposes can be more effectively used in conjunction, and to that end can suitably, regard being had to the spirit of the trust, be made applicable to common purposes;

(d)where the original purposes were laid down by reference to an area which then was but has since ceased to be a unit for some other purpose, or by reference to a class of persons or to an area which has for any reason since ceased to be suitable, regard being had to the spirit of the trust, or to be practical in administering the trust;

(e)where the original purposes, in whole or in part, have, since they were laid down—

(i)been adequately provided for by other means; or

(ii)ceased, as being useless or harmful to the community or for other reasons, to be in law charitable; or

(iii)ceased in any other way to provide a suitable and effective method of using the property available by virtue of the trust, regard being had to the spirit of the trust.

(2)Subsection (1) shall not affect the conditions which must be satisfied in order that property given for charitable purposes may be applied cy pres, except in so far as those conditions require a failure of the original purposes.

(3)References in subsections (1) and (2) to the original purposes of a trust shall be construed, where the application of the property given has been altered or regulated by a scheme or otherwise, as referring to the purposes for which the property is for the time being applicable.

(4)It is hereby declared that a trust for charitable purposes places a trustee under a duty, where the case permits and requires the property or some part of it to be applied cy pres, to secure its effective use for charity by taking steps to enable it to be so applied.

(5)Nothing in this section shall affect the application of the provisions of the Charitable Funds Act 1958 to the funds to which that Act applies.

106   Proceedings in case of charitable trust

(1)The court may upon application under this section by an order in respect of any charitable trust—

(a)give directions in respect of the administration of the trust; and

(b)require any trustee to carry out the trust, or to comply with a scheme (if any); and

(c)require any trustee to satisfy the trustee’s liability for any breach of the trust.

(2)An application under this section may be made—

(a)by the Attorney-General or person authorised by the Attorney-General; and

(b)by the charity, or any trustee of the trust; and

(c)by any person interested in the due administration of the trust.

(3)Notice of the application shall be given to the Attorney-General, and to the trustee of the trust and to such other person as the court directs.

(4)On any such application the court may make such order as to costs and otherwise as may be just.

(5)In this section—

charitable trust means any property held in trust for a charitable purpose.

charity means any institution, whether or not incorporated, which is established for charitable purposes.

Part 9    Gifts by particular trusts for philanthropic purposes

107   Definitions for pt 9

In this part—

eligible recipient means a deductible gift recipient under the Income Tax Assessment Act 1997 (Cwlth), whether or not the deductible gift recipient is a charity at law or (without limitation) is established for a charitable purpose or purposes.

prescribed trust means a trust—

(a)that establishes and maintains a fund mentioned in item 2 of the table of the Income Tax Assessment Act 1997 (Cwlth), section 30-15; or

(b)that is established for charitable or philanthropic purposes and is of a class prescribed under a regulation.

trust instrument means the initial instrument establishing a prescribed trust, as modified by all validly executed amendments.

108   Prescribed trust—trust instrument containing express power to give to eligible recipients

The trust instrument of a prescribed trust may include an express power for the trustees to provide money, property or benefits to or for an eligible recipient or for the establishment of an eligible recipient.

109   Prescribed trust—trust instrument not containing express power to give to eligible recipients

(1)The powers of the trustees of a prescribed trust, whose trust instrument does not contain an express power to do so, include a power to provide money, property or benefits to or for an eligible recipient or for the establishment of an eligible recipient.

(2)Subsection (1)—

(a)applies despite any provision to the contrary in the trust instrument; but

(b)does not apply in relation to a particular eligible recipient or a particular class of eligible recipients to the extent that there is an express prohibition in the trust instrument against the provision by the trustees of money, property or benefits—

(i)to or for that eligible recipient or class of eligible recipients; or

(ii)for the establishment of that eligible recipient or class of eligible recipients.

(3)Subsection (1) does not apply to the trustees of a prescribed trust unless there is in force a declaration substantially to the effect of the approved form for the prescribed trust.

(4)For the purpose of making a declaration under this section, the approved form may be modified so as to limit the application of the declaration to a stated eligible recipient or stated class of eligible recipients.

(5)If the declaration made for a prescribed trust is so limited, subsection (1) in its application to the prescribed trust has effect only in relation to the stated eligible recipient or stated class of eligible recipients.

(6)The trustees must ensure that the declaration, or a certified copy of it, is retained with the records of the prescribed trust.

(7)The trustees are not under a duty to make a declaration under this section, nor are the trustees in breach of a duty in making a declaration under this section.

110   Ancillary provisions

(1)A reference in this section to prescribed power, in relation to a prescribed trust, means—

(a)a power referred to in section 108 included in the trust instrument; or

(b)the power referred to in section 109 as applying to the prescribed trust.

(2)This Act applies to a prescribed trust as if the prescribed power were a power exercisable for a charitable purpose.

(3)Without limiting subsection (2)—

(a)neither the existence nor the exercise of the prescribed power affects the validity or status of a charitable trust as a charitable trust; and

(b)a prescribed trust is to be construed and given effect to as if—

(i)the prescribed power were a power exercisable for a charitable purpose; and

(ii)any payment or application of the trust property or the trust income, or any part of either of them, in the way allowed by the power were to or for a charitable purpose; and

(c)the existence or exercise of the prescribed power does not affect the control of a prescribed trust by the court in the exercise of the court’s general jurisdiction in relation to charitable trusts; and

(d)the jurisdiction mentioned in paragraph (c) extends to the prescribed power as if the power were exercisable for a charitable purpose.

Part 10    Miscellaneous

111   Application of part

Except where otherwise provided in this part, the provisions of this part shall apply whether or not a contrary intention is expressed in the instrument creating the trust.

112   Indemnity

This Act, and every order purporting to be made under this Act, shall be a complete indemnity to all persons for any acts done pursuant thereto; and it shall not be necessary for any person to inquire concerning the propriety of the order, or whether the court had jurisdiction to make the same.

113   Remedies for wrongful distribution of trust property

(1)In any case where a trustee has wrongfully distributed trust property any person who has suffered loss by that distribution may enforce the same remedies against the trustee and against any person to whom the distribution has been made as in the case where a personal representative has wrongfully distributed the estate of a deceased person.

(2)Except by leave of the court, no person who has suffered loss by reason of the wrongful distribution of trust property or of the estate of a deceased person may enforce any remedy against any person to whom such property or estate has been wrongfully distributed until the person has first exhausted all remedies which may be available to the person against the trustee or personal representative.

(3)Where any remedy is sought to be enforced against a person to whom a wrongful distribution of trust property or the estate of a deceased person has been made and that person has received the distribution in good faith and has so altered the person’s position in reliance on the propriety of the distribution that, in the opinion of the court, it would be inequitable to enforce the remedy, the court may make such order as it considers to be just in all the circumstances.

114   Fees and commission deemed a testamentary expense

The fees, commission, remuneration, and other charges payable to a personal representative in respect of the administration of the estate of a deceased person shall be deemed to be testamentary expenses.

115   Costs of inquiring regarding beneficiaries

The costs, expenses, and charges of the trustee of any property in respect of any inquiries made by the trustee to ascertain the existence or whereabouts of any person or persons entitled to any legacy, money or distributive share in the property, or otherwise incurred in relation thereto, shall be borne by and paid out of the legacy, money or distributive share of the person or persons in respect of whom the inquiries were made, unless a contrary intention appears in the instrument (if any) creating the trust.

116   Local governments may be trustee for certain purposes

A local government may be appointed a trustee of real or personal property, either as sole trustee or as a trustee with others and may accept and hold the trust property for any charitable or public purpose, or for any purpose of recreation or other leisuretime use or occupation and act in the administration of the trust property for the purpose of and according to the trust notwithstanding that the purpose is not a function of local government save where, in the case of an existing trust, a contrary intention appears from the instrument creating the trust.

117   Requirement upon certain transfers to local government

(1)Where land under the provisions of the Land Title Act 1994 is transferred to a local government, as sole transferee, by means of an instrument of transfer, such instrument shall not be registered in accordance with the provisions of that Act unless it is accompanied by a statutory declaration made under the Oaths Acts 1867 by the prescribed person or persons declaring that the land is not being transferred to the local government as a sole trustee.

(2)The statutory declaration referred to in subsection (1) shall be made—

(a)in a case where there is only 1 transferor—by him or her;

(b)in a case where there are 2 or more transferors—by each of them;

(c)in a case where paragraph (a) can not be complied with due to death or incapacity of the transferor—by an appropriate employee of the transferee;

(d)in a case where paragraph (b) can not be complied with due to death or incapacity of any of the transferors—by the other transferor or each of the other transferors, as the case may be, or, if no transferor is available and competent to make the declaration, by an appropriate employee of the transferee.

(3)Subsection (1) applies only in respect of instruments of transfer executed by the transferor or by all the transferors, where there are 2 or more, after the date of commencement of this section.

118   Approval of forms

The chief executive may approve forms for use under this Act.

Part 11    Transitional provision for Trusts (Investments) Amendment Act 1999

119   Transitional provision for Trusts (Investments) Amendment Act 1999

(1)A provision in an Act or document, whether or not the document creates a trust, that empowers or requires a person to invest an amount in the investments authorised by this Act as in force immediately before the commencement of this section, is to be read as if it empowered or required the person to invest the amount according to the provisions of part 3 as to the investment of trust funds.

(2)In an Act or document, and if otherwise appropriate, the following references are taken to be references to an authorised investment under this Act as in force after the commencement of this section—

(a)a reference to an authorised investment under the repealed Acts, section 4;

(b)a reference to an authorised investment under this Act as in force immediately before the commencement of this section.

Part 12    Transitional provisions for Criminal Proceeds Confiscation and Other Acts Amendment Act 2009

120   Definitions for pt 12

In this part—

commencement day means the date of assent of the Criminal Proceeds Confiscation and Other Acts Amendment Act 2009.

eligible recipient see section 107.

prescribed trust see sections 107 and 121.

121   Application of pt 9 to existing trusts

For part 9 and this part, a trust is a prescribed trust as defined under section 107 whether the trust was created before, on or after the commencement day.

122   Validation

(1)The provision, before the commencement day, by the trustees of a prescribed trust of money, property or benefits to or for an eligible recipient or for the establishment of an eligible recipient—

(a)is taken to be, and always to have been, a provision for an authorised and valid purpose of the prescribed trust; and

(b)does not affect, and is taken never to have affected, the status of the prescribed trust as a charitable trust.

(2)Subsection (1) applies despite anything to the contrary in the trust instrument.

(3)The inclusion of a power referred to in section 108 in the trust instrument of a prescribed trust before the commencement day is taken to be, and always to have been, validly included.

Part 13    Validation provision for Court and Civil Legislation Amendment Act 2017

123   Validation of execution of power of attorney for s 56

(1)This section applies if—

(a)before the commencement, a trustee purported to delegate, by power of attorney, the execution or exercise of a matter under previous section 56; and

(b)the power of attorney was made in the approved form under the Powers of Attorney Act 1998, section 11.

(2)The power of attorney is taken to be, and to have always been, as valid as if it had been executed as a deed under previous section 56.

(3)In this section—

previous section 56 means section 56 as in force from time to time before the commencement.