Trusts Act 2025 (Qld)

The Parliament of Queensland enacts—

Part 1    Preliminary

Division 1 Introduction

1   Short title

This Act may be cited as the Trusts Act 2025.

2   Commencement

This Act commences on a day to be fixed by proclamation.

3   Application of Act

(1)This Act applies in relation to a trust whether created before or after, or partly before and partly after, the commencement of this Act, except to the extent this Act or another Act provides otherwise.

Note—

For an example of an Act providing otherwise, see the Land Act 1994, section 90.

(2)Also, this Act applies despite a contrary intention in any trust instrument, except to the extent this Act provides otherwise.

(3)This Act does not prevent a settlor conferring on a trustee any powers additional to or greater than those conferred under this Act.

(4)Any additional or greater power conferred on a trustee by a settlor has effect and is exercisable in the same way, and with the same consequences, as a power conferred under this Act.

(5)Subsection (4) applies subject to an express contrary intention in the trust instrument.

(6)The powers conferred on a trustee under this Act are in addition to the powers conferred on the trustee under any other Act.

(7)In this section—

trustee includes a person exercising the powers of a trustee under this Act.

4   Act binds all persons

This Act binds all persons, including the State and, to the extent the legislative power of the Parliament permits, the Commonwealth and the other States.

Division 2 Interpretation

5   Definitions

The dictionary in schedule 1 defines particular words used in this Act.

6   Meaning of trust

Trust includes—

(a)an implied, resulting, bare or constructive trust; and

(b)the duties incidental to the office of a personal representative.

7   Meaning of trustee and statutory trustee

(1)

Trustee includes—

(a)a trustee corporation; and

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

(c)a personal representative; and

(d)a statutory trustee.

(2)A person, other than a person under a legal incapacity, is a statutory trustee in relation to trust property comprising land if—

(a)the person is beneficially entitled to possession of the land, or to the rents and profits of the land; and

(b)apart from this section, there is no trustee of the land.

Note—

See part 14 in relation to statutory trustees.

8   Meaning of trust instrument

(1)

The trust instrument, in relation to a trust, is any instrument creating the trust, as modified by all validly executed amendments.

(2)In this section—

instrument includes an Act.

9   Meaning of trust property and references to trust property

(1)

Trust property includes—

(a)property settled on any trust; and

(b)property subject to any implied, resulting, bare or constructive trust; and

(c)property subject to any trust or direction for sale, however arising; and

(d)land vested in a person for an estate for the person’s own life 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

(e)land in relation to which a person has, under a will, a personal licence to reside for the person’s own life or any other life, or for any lesser period; and

(f)the estate of a deceased person.

(2)A reference in this Act to trust property includes a reference to a part of the trust property.

10   Meaning of capacity and impaired capacity

(1)A person has capacity for a matter only if the person is capable of—

(a)understanding the nature and effect of decisions about the matter; and

(b)freely and voluntarily making decisions about the matter; and

(c)communicating the decisions in some way.

(2)A person has impaired capacity for a matter if the person does not have capacity for the matter.

Example of a matter for this section—

administering a trust

11   Meaning of charitable

(1)The established rules of law relating to what is charitable, as in force immediately before the commencement, continue to apply.

Examples of categories of charitable purposes—

•the relief of poverty

•the advancement of education

•the advancement of religion

(2)Despite any rule of law to the contrary, it is declared that it is and always has been charitable to provide, or to help in providing, facilities for recreation or other leisure time activity, if the facilities are provided in the interests of social welfare.

(3)For subsection (2), facilities are provided in the interests of social welfare only if—

(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 the facilities because of their youth, age, infirmity or disability, poverty or social and economic circumstances; or

(ii)the facilities are to be available to the members of the public at large or to a substantial section of the public at large.

(4)Nothing in this section limits the requirement that, in order to be charitable, a gift, trust or institution must be for the public benefit.

12   References to security when lending or investing trust funds

In this Act, a reference to a trustee lending or investing trust funds on the security of property includes a reference to a trustee lending or investing trust funds on a new security or on the transfer of an existing security.

Part 2    Restrictions on appointment of trustees and related matters

13   Persons who can not be appointed as trustees

(1)The following persons can not be appointed as a trustee—

(a)a child;

(b)an individual who is an insolvent under administration;

(c)a corporation that is a Chapter 5 body corporate;

(d)a person who is disqualified from being appointed as a trustee by an order made under section 168.

(2)The purported appointment of a person mentioned in subsection (1)(a), (b), (c) or (d) is of no effect.

(3)Subsections (1)(b) and (c) and (2) do not affect the appointment of—

(a)an individual who becomes an insolvent under administration after the individual’s appointment as trustee has taken effect; or

(b)a corporation that becomes a Chapter 5 body corporate after the corporation’s appointment as trustee has taken effect.

Note—

See, however—

(a)sections 20, 23 and 29 in relation to the replacement and removal of a trustee who becomes an insolvent under administration; and

(b)sections 20 and 29 in relation to the replacement and removal of a trustee that becomes a Chapter 5 body corporate.

(4)This section does not apply in relation to the appointment of a personal representative.

(5)Also, to remove any doubt, it is declared that this section does not limit the court’s power to declare that a person mentioned in subsection (1)(a), (b), (c) or (d) holds property as a trustee.

14   Limit on number of trustees of particular trusts

(1)This section applies to a trust other than—

(a)a charitable trust; or

(b)a trust that is, or is created for the purpose of becoming, a self managed superannuation fund within the meaning of the Superannuation Industry (Supervision) Act 1993 (Cwlth).

(2)The trust may not have more than 4 trustees.

(3)If more than 4 persons are named as trustees under the trust instrument—

(a)the first 4 persons named, who are able and willing to act as trustees and whose appointments are otherwise able to take effect, are the trustees; and

Example of a person who is not able to act as a trustee—

a person who has impaired capacity for administering the trust

Example of a person whose appointment as a trustee is not otherwise able to take effect—

a person who can not, under section 13, be appointed as a trustee

(b)the appointment of the other persons is of no effect.

(4)A custodian trustee is not to be counted for the purpose of any limitation on the number of trustees the trust may have.

Note—

See part 4 in relation to custodian trustees.

(5)This section applies subject to section 15.

15   Court approval of more than 4 trustees for particular trusts

(1)This section applies in relation to a trust other than a trust mentioned in section 14(1)(a) or (b).

(2)The court may, on application, make an order approving the appointment of more than 4 trustees of the trust if satisfied it is appropriate to do so in the particular circumstances of the case.

Note—

See section 163 in relation to the persons who may apply to the court for particular orders.

(3)The number of trustees approved by an order made under subsection (2) is the approved number.

Example—

If the court approves the appointment of 6 trustees, the approved number is 6.

(4)If the court makes an order under subsection (2) in relation to a trust, section 14 applies to the trust as if—

(a)the reference in section 14(2) to 4 trustees were a reference to the approved number of trustees; and

(b)a reference in section 14(3) to 4 persons were a reference to the approved number of persons.

16   Local government trustees may act in administration of trusts

(1)If a local government is appointed as trustee of a trust, the local government may act in the administration of the trust for the purpose of, and according to, the trust, even if the purpose is not a function of local government.

(2)Subsection (1) applies whether or not the local government is an original trustee of the trust.

(3)However, if the local government is not an original trustee of the trust, subsection (1) applies subject to a contrary intention in the trust instrument.

Part 3    Appointment, discharge and removal of trustees and devolution of trusts

Division 1 Preliminary

17   Application of part

This part applies in relation to a trustee who is the personal representative of the estate of a deceased person only if, and to the extent, the personal representative—

(a)has completed the administration of all, or a part, of the estate; and

(b)holds the estate, or a part of the estate, in the capacity of trustee only.

18   When appointors are not able and willing to act

(1)For this part, if there is 1 appointor for a trust, the appointor is not able and willing to act as appointor for the trust if—

(a)the appointor does not exercise the power of appointment within a reasonable period; or

(b)the appointor is otherwise not able and willing to act as appointor.

(2)For this part, if there are 2 or more appointors for a trust, the appointors are not able and willing to act as appointors for the trust if—

(a)the appointors can not, within a reasonable period—

(i)if the trust instrument provides for the appointors to exercise the power of appointment by majority—reach a majority decision on the appointment; or

(ii)otherwise—reach a unanimous decision on the appointment; or

(b)the appointors are otherwise not able and willing to act as appointors.

Division 2 Appointment of trustees

19   Application of division

(1)If there is an appointor for a trust, the provisions of this division relating to appointors apply, whether the appointment of a trustee is to be made in a circumstance mentioned in this division or in the trust instrument.

(2)However, if an appointor is authorised under this division to appoint a trustee in a circumstance that is also mentioned in the trust instrument, an appointment made under this division in that circumstance is subject to the terms applying under the trust instrument to an appointment in that circumstance.

(3)If a will names a person as trustee of a trust created by the will and the person is dead, the provisions of this division that apply if a trustee is dead apply—

(a)whether the person is named as a sole trustee or otherwise of the trust; and

(b)whether the death of the person happened before or after the death of the testator.

20   Appointment of trustees—replacement of trustee in particular circumstances

(1)This section applies if a trustee of a trust (a relevant trustee)—

(a)is dead; or

(b)declares, by instrument, that the trustee wishes to be discharged from all or part of the trusts reposed in the trustee; or

(c)refuses to act as trustee; or

(d)is unfit to act as trustee; or

(e)is incapable of acting as trustee, including, for example, because of having impaired capacity for administering the trust; or

(f)becomes an insolvent under administration; or

(g)is disqualified from managing corporations under the Corporations Act, part 2D.6 and either—

(i)does not have permission under section 206GAB or 206G of that Act to manage all corporations; or

(ii)has permission under section 206GAB or 206G of that Act to manage all corporations, but the permission is subject to exceptions or conditions; or

(h)is a corporation that—

(i)stops carrying on business; or

(ii)becomes a Chapter 5 body corporate; or

(iii)is deregistered or otherwise ceases to exist; or

(i)is removed under the trust instrument.

(2)For subsection (1), it does not matter whether the relevant trustee is an original trustee of the trust or was appointed by the court or otherwise.

(3)The following persons may, by instrument, appoint 1 or more persons as trustees to replace the relevant trustee—

(a)if there is an appointor for the trust—the appointor;

(b)if there is no appointor for the trust, or no appointor who is able and willing to act as an appointor—the continuing trustee of the trust or, if there is more than 1 continuing trustee, the continuing trustees.

Notes—

1See section 14 in relation to the limit applying to the number of trustees of particular trusts.

2See also section 166 in relation to the court’s power to appoint and remove trustees.

(4)Subject to a contrary intention in the trust instrument, an appointor for the trust may appoint themself as a trustee under subsection (3)(a).

(5)In this section—

continuing trustee includes a relevant trustee mentioned in subsection (1)(b) or (c) who is willing to act under subsection (3)(b).

21   Appointment of trustees—replacement of last continuing trustee who is dead

(1)This section applies if all of the following apply—

(a)the last continuing trustee of a trust is dead;

(b)there is no appointor for the trust, or no appointor who is able and willing to act under section 20 to appoint a trustee to replace the last continuing trustee;

(c)if the trust instrument includes a mechanism, other than the appointment of an appointor, for appointing a trustee to replace the last continuing trustee—an appointment of a trustee under the mechanism has not taken effect within a reasonable period after the death of the last continuing trustee.

(2)For subsection (1), it does not matter whether the last continuing trustee was an original trustee of the trust or was appointed by the court or otherwise.

(3)The personal representative of the last continuing trustee may, by instrument, appoint 1 or more persons as trustees to replace the last continuing trustee.

Notes—

1See section 14 in relation to the limit applying to the number of trustees of particular trusts.

2See also section 166 in relation to the court’s power to appoint and remove trustees.

(4)The personal representative of the last continuing trustee—

(a)is taken to have always had the power of appointment conferred under subsection (3); and

(b)if the personal representative is the executor, whether original or by representation, of the last continuing trustee’s will—may exercise the power of appointment conferred under subsection (3) without the agreement of any executor named in the trustee’s will who has not proved the trustee’s will.

(5)Subject to a contrary intention in the trust instrument, the personal representative of the last continuing trustee may appoint themself as a trustee under subsection (3).

(6)If there is more than 1 personal representative of the last continuing trustee, the personal representatives must exercise the power of appointment under subsection (3) jointly.

(7)In this section—

personal representative, of the last continuing trustee of a trust, does not include an executor named in the trustee’s will who has not proved the trustee’s will.

22   Appointment of trustees—replacement of last continuing trustee with impaired capacity

(1)This section applies if all of the following apply—

(a)the last continuing trustee of a trust is incapable of acting as trustee because the trustee has impaired capacity for administering the trust;

(b)there is no appointor for the trust, or no appointor who is able and willing to act under section 20 to appoint a trustee to replace the last continuing trustee;

(c)if the trust instrument includes a mechanism, other than the appointment of an appointor, for appointing a trustee to replace the last continuing trustee—an appointment of a trustee under the mechanism has not taken effect within a reasonable period after the later of the following to happen to the last continuing trustee—

(i)becoming the last continuing trustee;

(ii)becoming a person with impaired capacity for administering the trust;

(d)an administrator or attorney for the last continuing trustee is authorised, under their appointment as administrator or attorney, to exercise power for all financial matters for the trustee.

(2)For subsection (1), it does not matter whether the last continuing trustee is an original trustee of the trust or was appointed by the court or otherwise.

(3)The administrator or attorney may, by instrument, appoint 1 or more persons as trustees to replace the last continuing trustee.

Notes—

1See section 14 in relation to the limit applying to the number of trustees of particular trusts.

2See also section 166 in relation to the court’s power to appoint and remove trustees.

(4)The administrator or attorney may appoint themself as a trustee under subsection (3).

(5)If there is more than 1 administrator or more than 1 attorney for the last continuing trustee, the administrators or attorneys must exercise the power of appointment under subsection (3) jointly.

(6)To remove any doubt, it is declared that—

(a)the exercise of the power of appointment under subsection (3) is not made in the capacity of administrator or attorney for the last continuing trustee; and

(b)neither the Guardianship and Administration Act 2000 nor the Powers of Attorney Act 1998 applies in relation to the exercise of the power of appointment.

(7)This section applies subject to a contrary intention in—

(a)the trust instrument; or

(b)the order or instrument by which the administrator or attorney is appointed.

23   Appointment of trustees—replacement of last continuing trustee who is insolvent under administration

(1)This section applies if all of the following apply—

(a)the last continuing trustee of a trust is an insolvent under administration;

(b)there is no appointor for the trust, or no appointor who is able and willing to act under section 20 to appoint a trustee to replace the last continuing trustee;

(c)if the trust instrument includes a mechanism, other than the appointment of an appointor, for appointing a trustee to replace the last continuing trustee—an appointment of a trustee under the mechanism has not taken effect within a reasonable period after the later of the following to happen to the last continuing trustee—

(i)becoming the last continuing trustee;

(ii)becoming an insolvent under administration.

(2)For subsection (1), it does not matter whether the last continuing trustee is an original trustee of the trust or was appointed by the court or otherwise.

(3)Subject to a contrary intention in the trust instrument, the last continuing trustee may, by instrument, appoint 1 or more persons as trustees to replace themself.

Notes—

1See section 14 in relation to the limit applying to the number of trustees of particular trusts.

2See also section 166 in relation to the court’s power to appoint and remove trustees.

(4)The power conferred under subsection (3) is a personal right only of the last continuing trustee.

24   Appointment of trustees—additional trustees

(1)This section applies in relation to a trust if—

(a)the number of trustees of the trust is less than the number of trustees permitted for the trust under section 14, including that section as applied by section 15(4); or

(b)section 14 does not apply to the trust.

(2)The following persons may, by instrument, appoint 1 or more persons as additional trustees of the trust—

(a)if there is an appointor for the trust—the appointor;

(b)if there is no appointor for the trust, or no appointor who is able and willing to act as an appointor—the trustee of the trust or, if there is more than 1 trustee, the trustees.

Notes—

1See section 14 in relation to the limit applying to the number of trustees of particular trusts.

2See also section 166 in relation to the court’s power to appoint additional trustees.

(3)However, the persons mentioned in subsection (2) are not required to exercise the power conferred under that subsection unless the appointment of 1 or more additional trustees is required under the trust instrument or an Act.

(4)Subject to a contrary intention in the trust instrument, an appointor for the trust may appoint themself as an additional trustee under subsection (2)(a).

25   Appointment of trustees—separate trustees of separate trust property

(1)This section applies if, under a trust, a part of the trust property (the separate trust property) is held on a trust distinct from the trust relating to any other part of the trust property.

(2)If a new trustee may be appointed under this division—

(a)1 or more separate trustees may be appointed of the separate trust property, whether or not a new trustee is, or is to be, appointed of any other part of the trust property; and

(b)a continuing trustee may be appointed or continue as a trustee of the separate trust property; and

(c)if only 1 trustee of the trust property was originally appointed—1 trustee may be appointed of the separate trust property.

26   Powers etc. of trustees appointed under division

(1)A person appointed under this division as a trustee of trust property has all the powers, authorities and discretions of, and may in all matters act as, a person who had originally been appointed as a trustee of the trust property under the trust instrument.

(2)Subsection (1) applies in relation to the trustee both before and after the trust property is vested in the trustee.

Division 3 Discharge and removal of trustees

27   When minimum trustee requirements are satisfied

For this division, the minimum trustee requirements for a trust are satisfied if the trust has—

(a)at least 1 trustee that is a corporation; or

Examples of a corporation—

•the public trustee

•a licensed trustee company

•a company registered under the Corporations Act

•a local government

Note—

See section 16 in relation to the power of a local government to act in the administration of a trust.

(b)at least 2 trustees who are individuals; or

(c)if only 1 trustee was originally appointed or the trust instrument allows the trust to have only 1 trustee who is an individual—1 trustee who is an individual.

28   Discharge of trustee on appointment of new trustee

(1)This section applies if—

(a)a new trustee is appointed under division 2 to replace a trustee (the replaced trustee); and

(b)on the appointment of the new trustee, the minimum trustee requirements for the trust are satisfied.

(2)On the appointment of the new trustee, the replaced trustee is discharged from the trust.

(3)However, if the replaced trustee has declared, as mentioned in section 20(1)(b), that the trustee wishes to be discharged from only part of the trusts reposed in the trustee and is replaced under section 20 in relation to that part only, the trustee is discharged from that part only.

29   Removal and discharge of trustee without appointment of new trustee

(1)This section applies in relation to a relevant trustee mentioned in section 20(1)(c), (d), (e), (f), (g) or (h).

(2)For subsection (1), it does not matter whether the relevant trustee is an original trustee of the trust or was appointed by the court or otherwise.

(3)The following persons may, by instrument, remove the relevant trustee without appointing a new trustee to replace the relevant trustee—

(a)if there is an appointor for the trust—the appointor;

(b)if there is no appointor for the trust, or no appointor who is able and willing to act as an appointor—the continuing trustee of the trust or, if there is more than 1 continuing trustee, the continuing trustees.

(4)However, subsection (3) applies only if, on the removal of the relevant trustee, the minimum trustee requirements for the trust will be satisfied.

(5)On the removal of the relevant trustee under this section, the relevant trustee is discharged from the trust.

30   Discharge of trustee who wishes to be discharged

(1)This section applies if—

(a)a trustee declares, by instrument, that the trustee wishes to be discharged from all, or part (the relevant part), of the trusts reposed in the trustee; and

(b)on the discharge, the minimum trustee requirements will be satisfied for the trust or relevant part; and

(c)the trustee’s co-trustees and, if there is an appointor for the trust, the appointor, by instrument, agree to—

(i)discharge the trustee from the trusts or relevant part; and

(ii)vest the trust property in the co-trustees alone.

(2)Subject to subsection (3), the trustee is discharged from the trusts or relevant part.

(3)The discharge of the trustee takes effect—

(a)to the extent it is necessary, in order to vest the trust property in the co-trustees alone, for a transfer of the trust property to be notified, registered or recorded under the requirements of another Act or of a law of another State or the Commonwealth—on the notification, registration or recording of the transfer; or

(b)if, or to the extent, paragraph (a) does not apply—according to the terms of the instrument mentioned in subsection (1)(c).

(4)If the trustee has declared, as mentioned in subsection (1)(a), that the trustee wishes to be discharged from only the relevant part of the trusts, this section applies as if a reference in subsections (1)(c)(ii) and (3)(a) to the trust property were a reference to the trust property held on trust under the relevant part.

(5)To remove any doubt, it is declared that it is not necessary for a new trustee to be appointed to replace the trustee who is discharged.

Division 4 Notification of former delegate if trustee is replaced, removed or discharged

31   Particular persons to notify person who was trustee’s delegate

(1)This section applies if—

(a)a trustee is—

(i)replaced under division 2; or

(ii)removed under section 29 or under the trust instrument, without being replaced; or

(iii)discharged under section 30; and

(b)when the trustee is replaced, removed or discharged, the relevant person has notice that the trustee had, under section 95, delegated a matter in relation to the trust.

(2)For subsection (1)(b), it does not matter whether the relevant person has notice of the delegation of the matter because the trustee gave notice to the relevant person under section 99, or otherwise.

(3)The relevant person must give the person to whom the delegation was made written notice that the trustee has been replaced, removed or discharged, as the case may be.

(4)In this section—

relevant person means—

(a)in relation to a trustee who is replaced or removed as mentioned in subsection (1)(a)(i) or (ii)—the person replacing or removing the trustee; or

(b)in relation to a trustee who is discharged as mentioned in subsection (1)(a)(iii)—any person whose agreement to the discharge is required under section 30.

Division 5 Vesting of trust property on appointment, removal or discharge of trustees

32   Application of division

(1)This division applies if, by instrument (an instrument of change)—

(a)a new trustee is appointed, whether under division 2 or under the trust instrument and whether to replace a trustee or to be an additional trustee; or

(b)a trustee is—

(i)removed under section 29; or

(ii)discharged under section 30.

(2)However, this division does not apply in relation to a new trustee if the new trustee is appointed to replace the last continuing trustee of a trust who is dead.

Note—

See division 7 in relation to the vesting of trust property on the death of the last continuing trustee of a trust.

33   Definitions for division

In this division—

instrument of change see section 32(1).

post-change trustee, in relation to an instrument of change, means a person who, on the appointment of a new trustee, or the removal or discharge of a trustee, under the instrument, becomes or continues as a trustee of the trust to which the instrument relates.

pre-change trustee, in relation to an instrument of change, means a person who, immediately before the appointment of a new trustee, or the removal or discharge of a trustee, takes effect under the instrument, is a trustee of the trust to which the instrument relates.

34   Vesting of trust property

(1)On the appointment of the new trustee, or the removal or discharge of the trustee, under the instrument of change, the instrument of change—

(a)divests the trust property from the pre-change trustees; and

(b)without any conveyance, transfer or assignment, vests the trust property in—

(i)the post-change trustee; or

(ii)if there is more than 1 post-change trustee—the post-change trustees, as joint tenants.

(2)However, to the extent the divesting and vesting of the trust property have effect only if notified, registered or recorded under the requirements of another Act or of a law of another State or the Commonwealth—

(a)the divesting and vesting of the trust property are subject to the requirements of the other Act or law; and

(b)the instrument of change—

(i)vests in the post-change trustee a right to call for a transfer of the trust property; or

(ii)if there is more than 1 post-change trustee—vests in the post-change trustees jointly a right to call for a transfer of the trust property.

35   Transfer etc. of trust property

(1)Each pre-change trustee and post-change trustee must do all things necessary to assist in the notification, registration or recording of the divesting and vesting of the trust property under a requirement mentioned in section 34(2).

(2)The instrument of change is taken to be a conveyance of the trust property from the pre-change trustees to—

(a)the post-change trustee; or

(b)if there is more than 1 post-change trustee—the post-change trustees, as joint tenants.

(3)However, the instrument of change does not have effect as a breach of covenant or condition, or give rise to the forfeiture, of any lease or agreement for lease or other property.

(4)If the consent of a person is needed to the conveyance, transfer or assignment of the trust property—

(a)the vesting of the property under this division is subject to the consent; but

(b)the consent may be obtained after the execution of the instrument of change by the post-change trustee or, if there is more than 1 post-change trustee, the post-change trustees.

Division 6 Devolution of trusts on death of trustee

36   Exercise of trust powers etc. by surviving trustees

(1)This section applies if—

(a)a power is given to, or a trust is imposed on, 2 or more trustees jointly; and

(b)1 or more of the trustees dies.

(2)The surviving trustee or, if there is more than 1 surviving trustee, the surviving trustees may exercise the power or perform the trust, as the case may be.

Division 7 Vesting of trust property and devolution of trusts—death of last continuing trustee

37   Application of division

This division applies if the last continuing trustee of a trust dies.

38   Vesting of trust property in public trustee

(1)On the death of the last continuing trustee, the trust property devolves to and vests in the public trustee in the same way, and subject to the same provisions, as trust property vests in a post-change trustee under division 5.

(2)However, it is not necessary for the public trustee to notify, register or record the vesting of the trust property under section 35, as applied by subsection (1), if—

(a)the public trustee does not act in relation to the trust; or

(b)the only action taken by the public trustee is the appointment of a new trustee.

(3)The trust property remains vested in the public trustee until it is divested from the public trustee under section 40 or 41.

39   Powers etc. of public trustee

(1)While the trust property is vested in the public trustee under section 38, the public trustee has all the powers, authorities and discretions of, and may in all matters act as, a person who had originally been appointed as a trustee of the trust property under the trust instrument.

(2)However, unless the court, in special circumstances, otherwise directs, the public trustee is not required to exercise any of the powers, authorities or discretions or act in the administration of the trust.

(3)This section does not limit any power of the public trustee under the Public Trustee Act 1978, section 61 or 62.

40   Vesting of trust property in new trustee

(1)This section applies if—

(a)a new trustee is appointed to replace the last continuing trustee; and

(b)for an appointment made other than by the public trustee—the new trustee gives the public trustee written notice of the appointment.

(2)The trust property—

(a)is divested from the public trustee; and

(b)devolves to and vests in the new trustee in the same way, and subject to the same provisions, as trust property vests in a post-change trustee under division 5.

41   Vesting of trust property in holder of grant

(1)This section applies if—

(a)a new trustee has not been appointed to replace the last continuing trustee; and

(b)a grant of probate of the will, or letters of administration of the estate, of the last continuing trustee is made to a person, other than the public trustee; and

(c)the holder of the grant gives the public trustee written notice of—

(i)the making of the grant; and

(ii)the holder’s intention to assume the trust of the trust property.

(2)The trust property—

(a)is divested from the public trustee; and

(b)devolves to and vests in the holder of the grant in the same way, and subject to the same provisions, as trust property vests in a post-change trustee under division 5.

42   Powers etc. of holder of grant

If the trust property vests in the holder of a grant under section 41, the holder—

(a)is taken to be a person appointed as a new trustee by an appointor for the trust; and

(b)has all the powers, authorities and discretions of, and may in all matters act as, a person who had originally been appointed as a trustee of the trust property under the trust instrument.

43   Liability of public trustee

(1)This section applies if, before the trust property is divested from the public trustee under section 40 or 41, the public trustee—

(a)is liable for any action taken by the public trustee in relation to the trust; and

(b)is entitled to be indemnified out of the trust property for the liability.

(2)On the divesting of the trust property from the public trustee under section 40 or 41—

(a)the public trustee’s liability ends; and

(b)a person who would, apart from paragraph (a), have had a remedy against the public trustee is taken to have the same remedy against the person in whom the trust property vests under section 40 or 41.

Division 8 Disclaimer of trusts of wills and related matters

44   Disclaimer of trust of will on renunciation of probate or failure to apply

(1)This section applies if—

(a)a person is appointed as both executor and trustee of a will; and

(b)the person—

(i)renounces probate of the will; or

(ii)fails to apply for probate of the will after being properly cited or summoned to apply.

(2)The person’s renunciation or failure is taken to be a disclaimer by the person of the trust of the will.

(3)To remove any doubt, it is declared that subsection (2) does not affect any express trust established under the will.

45   When grantee under letters of administration is taken to be trustee of will

(1)This section applies if—

(a)a person is appointed as both executor and trustee of a will; and

(b)the person—

(i)renounces probate of the will; or

(ii)fails to apply for probate of the will after being properly cited or summoned to apply; or

(iii)dies before probate of the will is granted to the person; and

(c)letters of administration with the will are granted to another person (the grantee).

(2)The grantee is taken to have been appointed trustee of the will instead of the person.

Part 4    Custodian trustees

46   Meaning of managing trustee

If a custodian trustee of trust property is appointed, each trustee of the trust, other than the custodian trustee, is a managing trustee of the trust.

47   Appointment of custodian trustee

(1)A corporation may be appointed, in a way provided under subsection (2), as the custodian trustee of trust property.

(2)The appointment may be made by—

(a)the trust instrument; or

(b)if there is an appointor for the trust—the appointor, by instrument; or

(c)the trustees of the trust, by instrument; or

(d)the court, by order.

(3)Subsection (2)(b) and (c) applies subject to a contrary intention in the trust instrument.

48   Vesting of trust property in custodian trustee

(1)On the appointment of a custodian trustee of trust property, the trust property vests in the custodian trustee as if the custodian trustee were the sole trustee.

(2)The instrument of appointment of a custodian trustee—

(a)is taken to be a conveyance of the trust property from the managing trustees to the custodian trustee; but

(b)does not have effect as a breach of covenant or condition, or give rise to the forfeiture, of any lease or agreement for lease or other property.

(3)Section 34(2) applies to the divesting and vesting of the trust property under this section as if—

(a)the reference in section 34(2)(b) to the instrument of change were a reference to the instrument of appointment of the custodian trustee; and

(b)the reference in section 34(2)(b)(i) to the post-change trustee were a reference to the custodian trustee.

(4)The court may, on application, make vesting orders to give effect to subsection (1).

Note—

See section 163 in relation to the persons who may apply to the court for particular orders.

(5)Subsection (1) applies subject to an express contrary intention in the trust instrument.

(6)In this section—

instrument of appointment, of a custodian trustee, means the trust instrument, other instrument or court order by which the custodian trustee is appointed.

49   Trust powers, authorities and discretions of managing trustees not affected

(1)This section applies if trust property vests in a custodian trustee under section 48.

(2)The exercise of all powers, authorities and discretions exercisable by trustees under the trust, including the management of the trust property, remains vested in the managing trustees of the trust as fully and effectively as if there were no custodian trustee.

(3)Without limiting subsection (2), the custodian trustee does not have the power to appoint a new trustee of the trust.

Note—

See, however, section 163(3) in relation to a custodian trustee’s power to apply to the court for an order appointing a new trustee of the trust.

(4)This section applies subject to an express contrary intention in the trust instrument.

50   Function of custodian trustee

(1)A custodian trustee’s function is to do the following, as the managing trustees, by instrument, direct—

(a)get in and hold the trust property;

(b)invest the trust property;

(c)dispose of the trust property.

(2)For performing the custodian trustee’s function under subsection (1), the custodian trustee must perform all acts and execute all documents as the managing trustees, by instrument, direct.

(3)This section applies subject to an express contrary intention in the trust instrument.

51   Protection from liability for custodian trustee

(1)A custodian trustee is not personally liable for an act done, or an omission made, under a direction of the managing trustees mentioned in section 50(1) or (2).

(2)Also, a custodian trustee is not personally liable for an act done, or an omission made, by any of the managing trustees.

(3)This section applies subject to an express contrary intention in the trust instrument.

52   Liability of managing trustees for acts and omissions of custodian trustee

(1)This section applies if a custodian trustee does an act, or makes an omission, under a direction of the managing trustees mentioned in section 50(1) or (2).

(2)The managing trustees are liable for the act done, or the omission made, as if it were the managing trustees’ own act or omission.

(3)This section applies subject to an express contrary intention in the trust instrument.

53   Application by custodian trustee for directions

(1)A custodian trustee may apply to the court for directions if the custodian trustee believes a direction of the managing trustees mentioned in section 50(1) or (2)—

(a)conflicts with the trust instrument or the law; or

(b)exposes, or would expose, the custodian trustee to a personal liability; or

(c)is otherwise objectionable.

(2)The court may, on an application under subsection (1), make the orders and give the directions the court considers appropriate, including an order about the costs of the application.

(3)An order made under subsection (2) giving directions binds the custodian trustee and the managing trustees.

54   Proceedings to be in name of custodian trustee

(1)A proceeding in relation to trust property that is vested in a custodian trustee must be brought or defended, in the name of the custodian trustee, as the managing trustees, by instrument, direct.

(2)If a custodian trustee brings or defends a proceeding under a direction of the managing trustees mentioned in subsection (1)—

(a)the custodian trustee is not personally liable for the costs of bringing or defending the proceeding; but

(b)the managing trustees are personally liable for the costs of bringing or defending the proceeding, as if it had been brought or defended by the managing trustees.

(3)This section applies subject to an express contrary intention in the trust instrument.

55   Persons dealing with custodian trustee

A person dealing with a custodian trustee—

(a)is not required to inquire about—

(i)any direction of the managing trustees about the dealing; or

(ii)whether the managing trustees have agreed to the dealing; and

(b)is not affected by notice of the fact the managing trustees have not agreed to the dealing.

56   Ending custodian trusteeship

(1)The following persons may apply to the court to end a custodian trusteeship—

(a)the custodian trustee;

(b)a managing trustee of the trust;

(c)a beneficiary of the trust.

(2)The court may order the ending of the custodian trusteeship if satisfied that—

(a)it is the general wish of the beneficiaries of the trust; or

(b)it is expedient to end the custodian trusteeship on other grounds.

(3)The court may, to give effect to the ending of the custodian trusteeship—

(a)give the directions it considers appropriate; and

(b)make the vesting orders it considers necessary.

57   Right to indemnity not affected

Nothing in this part limits the right of the managing trustees of a trust, or of a custodian trustee of trust property, to be indemnified out of the trust property in relation to liabilities incurred in the proper administration of the trust.

Part 5    Trustees’ duties

Division 1 Preliminary

58   Application of part

This part does not limit any other duty to which a trustee is subject, whether under this Act or otherwise.

59   Definitions for part

In this part—

professional trustee means—

(a)a trustee whose profession, business or employment is, or includes, acting as a trustee; or

(b)a custodian trustee whose profession, business or employment is, or includes, acting as a custodian trustee.

trustee includes a custodian trustee.

Division 2 General duty to exercise care, diligence and skill in administering trusts

60   Duty of professional trustees

(1)This section applies to a trustee if the trustee is a professional trustee.

(2)The trustee has a duty, in administering a trust, to exercise the care, diligence and skill that a prudent person engaged in the trustee’s profession, business or employment would exercise in managing the affairs of other persons.

61   Duty of particular non-professional trustees

(1)This section applies to a trustee if—

(a)the trustee is not a professional trustee; but

(b)the trustee has, or holds themself out as having, special knowledge or experience relevant to administering trusts or trusts of a particular type.

(2)The trustee has a duty, in administering a trust or a trust of the particular type, to exercise the care, diligence and skill that a prudent person having that special knowledge or experience would exercise in managing the affairs of other persons.

62   Duty of other trustees

(1)This section applies to a trustee if—

(a)the trustee is not a professional trustee; and

(b)section 61 does not apply to the trustee.

(2)The trustee has a duty, in administering a trust, to exercise the care, diligence and skill that a prudent person of business would exercise in managing the affairs of other persons.

Division 3 Duty to act honestly and in good faith

63   Duty to act honestly and in good faith

A trustee has a duty, in administering a trust, to act honestly and in good faith—

(a)if the trust is a charitable trust—to further the purposes of the trust; or

(b)otherwise—for the benefit of the beneficiaries of the trust.

Division 4 Duties relating to accounts and other records

64   Duty to keep accounts and other records

(1)A trustee has a duty, in administering a trust, to—

(a)keep accurate accounts and records for the trust; and

(b)keep the accounts and records for at least 3 years after the termination of the trust.

(2)If a person is the trustee of more than 1 trust, the person must keep separate accounts and records for each trust.

65   Duty to make accounts available for inspection and to provide copies

(1)A trustee has a duty, in administering a trust, to do the following on request by a beneficiary of the trust—

(a)to make the accounts for the trust available for inspection by the beneficiary within a reasonable period after the request is made;

(b)to provide copies of the accounts for the trust to the beneficiary, within a reasonable period after the request is made, on payment of the reasonable costs of providing the copies.

(2)However, subsection (1) does not apply if the request is unreasonable in the circumstances.

Example of a request to provide copies of accounts that may be unreasonable in the circumstances—

a request by a beneficiary who has been provided with copies of the accounts to be provided with updated copies of the accounts at very short intervals

(3)Subsection (1) does not limit any right of a beneficiary—

(a)to obtain other information from the trustee; or

(b)to apply to the court for an order that the trustee provide other information.

(4)In this section—

beneficiary, of a trust, includes a person in whose favour a power to distribute the trust property may be exercised.

Part 6    Investments

Division 1 Preliminary

66   Definitions for part

In this part—

investment power means—

(a)a power of investment conferred on a trustee under the trust instrument; or

(b)a power conferred on a trustee under this part.

professional investor means a person whose profession, business or employment is, or includes, investing money for other persons.

Division 2 Duty of particular trustees to exercise care, diligence and skill in exercising investment powers

67   Duty of trustees who are professional investors

(1)This section applies to a trustee if the trustee is a professional investor.

(2)The trustee has a duty, in exercising an investment power, to exercise the care, diligence and skill that a prudent person engaged in the trustee’s profession, business or employment would exercise in managing the affairs of other persons.

(3)This section applies subject to a contrary intention in the trust instrument.

Note—

See also part 5, division 2 in relation to a trustee’s general duty in administering a trust.

68   Duty of particular trustees who are not professional investors

(1)This section applies to a trustee if—

(a)the trustee is not a professional investor; but

(b)the trustee has, or holds themself out as having, special knowledge or experience in investing money for other persons.

(2)The trustee has a duty, in exercising an investment power, to exercise the care, diligence and skill that a prudent person having that special knowledge or experience would exercise in managing the affairs of other persons.

(3)This section applies subject to a contrary intention in the trust instrument.

Note—

See also part 5, division 2 in relation to a trustee’s general duty in administering a trust.

Division 3 Duties and powers in relation to investments

69   Power to invest

(1)A trustee may invest trust funds in any form of investment, other than a forbidden form of investment.

(2)Also, a trustee may, at any time—

(a)vary an investment of trust funds; or

(b)realise an investment of trust funds and reinvest an amount resulting from the realisation in any form of investment, other than a forbidden form of investment.

(3)A trustee must, in exercising power under subsection (1) or (2), comply with any provision of the trust instrument that is binding on the trustee and requires the trustee to—

(a)obtain a consent or approval in relation to trust investments; or

(b)comply with a direction in relation to trust investments.

(4)In this section—

forbidden form of investment, in relation to trust funds, means a form of investment that is expressly forbidden by the trust instrument.

Note—

See, however, section 75 for a power that can not be forbidden, or otherwise limited, by a trust instrument.

70   Law and equity preserved

(1)A rule or principle of law or equity that imposes a duty on a trustee exercising an investment power continues to apply except to the extent it is inconsistent with this Act or another Act or with the trust instrument.

(2)Without limiting subsection (1), the rules or principles mentioned in that subsection include a rule or principle imposing any of the following duties—

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

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

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

(d)a duty to obtain advice.

(3)A rule or principle of law or equity relating to a provision in a trust instrument 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 costs of obtaining the advice are payable out of the trust funds.

71   Matters to which trustee must have regard in exercising investment power

(1)A trustee must, in exercising an investment power, have regard to the following matters, to the extent they are appropriate to the circumstances of the trust—

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

(b)the desirability of diversifying the trust investments;

(c)the nature of, and the risk associated with, the 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 property;

(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 the existing trust investments.

(2)Subsection (1) does not limit the matters to which a trustee may have regard in exercising an investment power.

72   Advice for particular investment purposes

(1)A trustee may obtain independent and impartial advice, from a person the trustee reasonably believes is competent to give the advice, if the advice is reasonably required for—

(a)the investment of trust funds; or

(b)the management of the trust investments.

(2)If the trustee obtains advice under subsection (1), the trustee—

(a)must consider the advice; and

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

73   Duty to review investments

A trustee must, at least every 12 months, review the performance, individually and as a whole, of the trust investments.

74   Investment in securities under RITS system

(1)A chose in action arising under the RITS system that entitles its holder to a security of a particular description (the underlying security) is, for this Act and a trust instrument, 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 system means the Reserve Bank Information and Transfer System operated by the Reserve Bank of Australia, as operating from time to time.

75   Power to provide residence for beneficiary to live in

(1)A trustee may do any of the following for a beneficiary of the trust—

(a)buy or construct a residence for the beneficiary to live in;

(b)retain a residence that is part of the trust property for the beneficiary to live in;

(c)enter into an agreement or arrangement to secure a right to use a residence for the beneficiary to live in.

Example for paragraph (c)—

entering into a residence contract under the Retirement Villages Act 1999

(2)Also, a trustee who exercises power under subsection (1) may make the residence available to the beneficiary to live in on the conditions the trustee considers appropriate.

(3)However, a trustee may exercise power under subsection (1), or impose conditions under subsection (2), only if the exercise of the power, or the imposition of the conditions, is consistent with the extent of the beneficiary’s interest under the trust.

(4)A trustee may retain a residence bought, constructed, retained or otherwise secured for use by a beneficiary under this section after the beneficiary has stopped living in the residence.

(5)To remove any doubt, it is declared that subsection (4) does not limit the operation of the Retirement Villages Act 1999 or any other Act.

(6)Despite section 69, a trust instrument can not forbid the exercise of, or otherwise limit, a trustee’s power under this section.

(7)In this section—

residence 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 residence; and

(c)an interest in a residence.

76   Power to authorise another person to exercise trustee’s investment powers

(1)A trustee may, by instrument, authorise another person to exercise any of the trustee’s investment powers.

(2)The authorisation may be made on the terms the trustee considers appropriate, including terms relating to remuneration.

(3)However, the authorisation of the other person does not limit any duty or other requirement applying to the trustee under this part or part 5 in relation to the exercise of the trustee’s investment powers.

Note—

See also section 77 in relation to the liability of the trustee for the acts done, and the omissions made, by the person in exercising the trustee’s investment powers.

(4)This section applies subject to an express contrary intention in the trust instrument.

Division 4 Liability of trustees in relation to exercise of investment powers

77   Liability of trustee for acts and omissions of person authorised to exercise trustee’s investment powers

(1)This section applies if a trustee authorises another person under section 76 to exercise any of the trustee’s investment powers.

(2)The trustee is liable for the acts done, and the omissions made, by the other person in exercising the trustee’s investment powers as if the acts and omissions were the trustee’s own acts and omissions.

(3)This section applies subject to an express contrary intention in the trust instrument.

78   Particular loans by trustee not in breach of trust

(1)This section applies if a trustee lends trust funds on the security of property.

(2)The trustee is not in breach of trust only because of the comparison of the amount of the loan with the value of the property when the loan was made if—

(a)it appears to the court that—

(i)in making the loan, the trustee was acting on an independent valuation of the property; and

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

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

(b)the trustee is insured by a prescribed insurer against all loss that may arise because of the borrower’s default.

(3)For this section, a valuation of a property made by a person is an independent valuation of the property if the trustee—

(a)instructed and employed the person, independently of any owner of the property, to make the valuation; and

(b)reasonably believed the person was competent to make the valuation.

(4)In this section—

prescribed insurer means an entity, prescribed by regulation, that carries on the business of insurance.

79   Limitation of liability of trustee for loss on improper investment

(1)This section applies if—

(a)a trustee improperly lends trust funds on the security of property; but

(b)the loan would have been a proper investment if a lesser amount had been lent.

(2)For the trustee’s liability in relation to the investment—

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

(b)the trustee is liable only for the difference between the actual amount lent and the lesser amount, with interest.

80   Court may take into account investment strategy etc. in proceeding for breach of trust

(1)This section applies in relation to a proceeding against a trustee for a breach of trust in relation to the exercise of an investment power.

(2)The court may, in considering the question of the trustee’s liability, take the following matters into account—

(a)the nature and purpose of the trust;

(b)the amount of the trust funds invested in the exercise of the investment power;

(c)whether the trustee had regard to the matters mentioned in section 71 to the extent they were appropriate to the circumstances of the trust;

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

(e)the extent to which the trustee acted on advice that the trustee reasonably believed—

(i)was given by a person who was independent and competent to give the advice; and

(ii)was impartial.

81   Court may set off gains and losses

(1)This section applies in relation to a proceeding against a trustee for a breach of trust in relation to an investment if a loss has been, or is expected to be, sustained by the trust.

(2)The court may set off all or part of the loss resulting from the investment against all or part of any gain resulting from any other investment, whether or not the other investment is a breach of trust.

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

Part 7    General powers of trustees

Division 1 Powers in relation to trust property

82   General powers in relation to trust property

(1)A trustee has, in relation to the trust property, all the powers of an absolute owner of the property.

Notes—

1See, however, part 5 in relation to the duties of a trustee in administering a trust.

2See also the Succession Act 1981, section 49B in relation to particular limitations on a personal representative’s power to carry on a business.

(2)Without limiting subsection (1), the powers conferred on a trustee under subsection (1) include the following powers—

(a)the power to sell the trust property;

(b)the power to lease the trust property or to renew, extend or vary a lease of the trust property;

(c)the power to mortgage the trust property or to renew, extend or vary a mortgage of the trust property;

(d)for trust property that is securities of a corporation—the power to deal with the securities;

(e)the power to settle a debt or claim in relation to the trust property;

(f)the power to insure the trust property against the loss of or damage to the trust property or any risk or liability relating to the trust property.

(3)A power conferred under subsection (1), other than a power mentioned in subsection (2)(a) to (f), may be excluded or modified by an express statement to that effect in the trust instrument.

Note—

See, however, section 216 in relation to the exercise of particular powers under this section by a statutory trustee.

83   Power to postpone sale, calling in and conversion of particular trust property

(1)A trustee may postpone the sale, calling in or conversion of trust property that the trustee has a duty to sell.

(2)Subject to an express contrary intention in the trust instrument, if the trustee’s duty to sell arises because of a trust or direction for sale, the trustee may postpone the sale of the trust property for an indefinite and unlimited period, whether or not that period is longer than the period during which the trust or direction for sale remains valid.

(3)However, this section does not apply if the trust property is of a wasting, speculative or reversionary nature.

Notes—

1See, however, the Succession Act 1981, section 49B in relation to particular limitations on a personal representative’s power to carry on a business.

2See also section 216 in relation to the exercise of power under this section by a statutory trustee.

84   Power to execute instruments etc.

A trustee may, in relation to the trust property, do anything, make any omission, and execute any instrument, necessary to carry into effect the powers and authorities given under this Act or the trust instrument.

Division 2 Expenditure in relation to trust property

85   Power to expend amounts

(1)A trustee may, in relation to the trust property, expend an amount, including an amount from capital, that is subject to the same trusts for 1 or more of the following purposes—

(a)to maintain or renovate the trust property, whether or not the work is necessary for the purpose of salvaging the property;

(b)to improve or develop the trust property;

(c)to pay calls on shares subject to the same trust;

(d)to pay outgoings in relation to the trust property;

(e)if the trust property is land or a water allocation—to subdivide the land or water allocation and pay related expenses;

(f)to provide, construct or maintain any of the following for the trust property if they are likely to be beneficial to the property—

(i)roads, footpaths and other works for pedestrian or vehicular use;

(ii)utility services and other works.

(2)If the trustee is a trustee corporation, the trustee may exercise the power conferred under subsection (1)(c) even if the shares on which the calls are made are shares in the trustee corporation.

(3)In this section—

maintain, in relation to property, includes repair the property and provide for the upkeep of the property.

outgoings includes rates, premiums, taxes, assessments and insurance premiums.

86   Power to apportion expenditure between income and capital and recoup particular expenditure

(1)A trustee may, in relation to the trust property, apportion expenditure made under section 85 between capital and income or otherwise among the persons entitled to the capital or income in the way the trustee considers equitable.

(2)If all or part of the expenditure is made out of capital, the trustee may recoup the expenditure made out of capital from income, if to do so would be equitable in all the circumstances.

(3)If all or part of the expenditure is made out of income, the trustee may recoup the expenditure made out of income from capital, if to do so would be equitable in all the circumstances.

(4)The exercise of power under this section is subject to—

(a)this Act; and

(b)any direction of the court; and

(c)an express contrary intention in the trust instrument.

Division 3 Appropriation

87   Definitions for division

In this division—

entitled person see section 90(1)(a) and (b).

extension application see section 89(4).

interested person see section 88(2).

variation application see section 89(1)(a).

88   Notice of proposed appropriation

(1)This section applies if a trustee proposes to appropriate trust property under section 90.

(2)Before making the appropriation, the trustee must give written notice of the proposed appropriation to each person interested in the appropriation (each an interested person).

(3)However, if the trustee is an interested person, subsection (2) does not require the trustee to give notice of the proposed appropriation to themself.

(4)Subsection (5) applies if an interested person is—

(a)an adult with impaired capacity for financial matters relating to the proposed appropriation; or

(b)a child.

(5)The trustee may comply with subsection (2) in relation to the interested person only by giving notice to—

(a)if the interested person is an adult—each administrator or attorney for the interested person who is authorised, under their appointment as administrator or attorney, to exercise power for financial matters relating to the proposed appropriation; or

(b)if the interested person is a child—each guardian of the child.

89   Interested person may apply to vary proposed appropriation or waive right to apply

(1)An interested person who is given notice under section 88 of a proposed appropriation may—

(a)make an application to the court to vary the proposed appropriation (a variation application); or

(b)by written notice given to the trustee at any time, waive the interested person’s right to make a variation application.

(2)Subject to subsections (3) and (4), a variation application must be started within 2 months after the day the interested person is given notice of the proposed appropriation.

(3)The interested person may, by written notice given to the trustee within the period mentioned in subsection (2), shorten the period that would otherwise apply under subsection (2) to the shorter period stated in the notice.

(4)The court may, on application (an extension application) made by the interested person at any time, allow a variation application to be started within a longer period.

(5)The court may make the orders it considers appropriate in relation to a variation application or an extension application.

(6)This section applies subject to section 91.

90   Appropriation to satisfy legacy or share generally

(1)A trustee may appropriate any part of the trust property to satisfy all or part of—

(a)a legacy, payable out of the trust property, to which a person (an entitled person) is entitled; or

(b)a share of the trust property, whether contingent or absolute, to which a person (also an entitled person) is entitled.

(2)An appropriation of trust property under this section may be made only if—

(a)the appropriation does not adversely affect any specific gift of the trust property; and

(b)the entitled person consents to the appropriation; and

(c)for an appropriation in relation to which the trustee is an interested person, the appropriation has been approved by—

(i)each other interested person; or

(ii)the court, on an ex parte application by the trustee or otherwise; and

(d)notice of the proposed appropriation has been given under section 88; and

(e)the circumstances mentioned in subsection (3)(a), (b) or (c) apply.

(3)For subsection (2)(e), the circumstances are—

(a)all of the following apply—

(i)the relevant application period for each interested person has ended;

(ii)no interested person has, within the relevant application period for the person, started a variation application and served the application on the trustee;

(iii)if any interested person has, since the end of the relevant application period for the person, started an extension application and served the application on the trustee—the extension application has been dismissed by the court; or

(b)if any interested person has started a variation application and served the application on the trustee within the relevant application period for the person or any longer period allowed by the court on an extension application—the variation application has been dismissed by the court; or

(c)each interested person has given the trustee notice under section 89(1)(b) waiving the person’s right to make a variation application.

(4)For making an appropriation under this section, the trustee may, under section 117, ascertain and fix the value of all or any part of the trust property as at the day the appropriation is made.

(5)An appropriation made under this section is conclusive and binding on all persons who are, or may be, interested in the trust property, unless varied by the court on a variation application.

(6)This section does not limit or otherwise affect any power of appropriation conferred under the trust instrument.

(7)This section applies subject to section 91.

(8)In this section—

relevant application period, for an interested person, means the following period within which a variation application by the interested person must be started—

(a)if paragraph (b) does not apply—the period mentioned in section 89(2);

(b)if the interested person has given the trustee notice under section 89(3)—the shorter period stated in the notice.

91   Exercise of power for particular interested persons and entitled persons

(1)If an interested person is a child, only the guardian of the child may—

(a)give notice under section 89(1)(b) waiving the interested person’s right to make a variation application; or

(b)give notice under section 89(3) shortening the period that would otherwise apply under section 89(2); or

(c)approve an appropriation of trust property, as mentioned in section 90(2)(c)(i).

(2)If an entitled person is a child, only the guardian of the child may give consent for the child to the making of an appropriation of trust property, as mentioned in section 90(2)(b).

(3)If there is more than 1 guardian of a child, the guardians must act jointly in exercising power for the child for a matter mentioned in subsection (1) or (2).

(4)Sections 89 and 90 do not limit or otherwise affect—

(a)the operation of a provision of another Act that provides for how, or by whom, an application to the court may be made on behalf of a person under a legal incapacity; or

(b)the powers of an administrator or attorney for a person with impaired capacity for a matter.

92   Appropriation to pay annuity

(1)This section applies if a trust instrument provides for the payment of an annuity, whether or not the trust instrument provides that the annuity may be charged on the trust property.

(2)The trustee may set aside and appropriate out of any trust property available for payment of the annuity an amount (the appropriated amount) that, in the trustee’s opinion at the time of appropriation, is enough, when invested, to provide out of the income of the investment the amount required to pay the annuity.

(3)After the appropriation has been made—

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

(b)the trustee may distribute the residue of the trust property and the income of the trust property in accordance with the trust instrument.

(4)On the distribution of the residue of the trust property and the income of the trust property under subsection (3)(b), the residue and the income cease to be liable for the annuity.

(5)In this section—

annuity includes any periodic payment.

93   Notice to relevant registrar if land or water allocation to be distributed after appropriation to pay annuity

(1)This section applies if a trustee proposes to distribute, under section 92(3)(b), trust property that is land or a water allocation.

(2)The trustee must give the relevant registrar written notice that the trust property may be distributed because of an appropriation made under section 92(2) for payment of an annuity.

(3)The relevant registrar is not required to inquire into whether the appropriated amount set aside under section 92(2) is enough to provide for payment of the annuity.

Division 4 Delegation

Subdivision 1 Preliminary

94   Definitions for division

In this division—

delegate see section 95(4)(b).

instrument of delegation see section 95(2).

stated circumstances, in relation to the delegation of a matter, see section 95(4)(a).

Subdivision 2 Delegation by trustees

95   Power to delegate matters

(1)This section applies if a trustee—

(a)is absent, or is about to be absent, from the State; or

(b)is, or may be about to become, because of physical infirmity, temporarily incapable of performing the duties of a trustee.

(2)The trustee may, by instrument (an instrument of delegation), delegate the administration or exercise of all or any trusts, powers, authorities and discretions vested in the trustee as trustee to—

(a)an individual who resides in the State, if—

(i)for an individual who is a co-trustee of the trustee—the individual is not the trustee’s only co-trustee; or

(ii)for another individual—section 13(1) would not prevent the individual from being appointed as a trustee; or

(b)a trustee corporation that carries on business in the State, if section 13(1) would not prevent the trustee corporation from being appointed as a trustee.

(3)For subsection (2), it does not matter whether the trusts, powers, authorities and discretions are vested in the trustee alone or jointly with 1 or more other persons.

(4)The instrument of delegation must—

(a)state the circumstances in which the delegation is to operate (the stated circumstances); and

(b)be signed by the trustee and the person to whom the matters are delegated (the delegate).

(5)This section applies despite any rule or principle of law or equity to the contrary.

96   Period during which delegation is in effect

(1)The delegation of a matter under section 95 commences—

(a)on the happening of an event stated in the instrument of delegation as the time the delegation commences; or

(b)if the instrument of delegation does not state an event as mentioned in paragraph (a)—

(i)on the day stated in the instrument of delegation as the day the delegation commences; or

(ii)if no day is stated for that purpose—on the day the instrument of delegation is signed.

(2)The delegation of the matter continues in effect until the first of the following happens—

(a)the happening of an event stated in the instrument of delegation as the time the delegation ends;

(b)the beginning of the day, if any, stated in the instrument of delegation as the day the delegation ends;

(c)the beginning of the day that is 12 months after the day the delegation commences;

(d)the delegation is revoked under subdivision 3;

(e)the trustee is replaced or removed, or is otherwise discharged from the trust, whether under part 3 or otherwise;

(f)the trustee dies.

97   Effect of delegation

(1)If a trustee delegates a matter under section 95, the delegate has, within the scope of the delegation, the same trusts, powers, authorities, discretions, duties and liabilities in relation to the matter as the delegate would have if the delegate were the trustee, other than the power of delegation conferred under section 95.

(2)However, the delegate may perform or exercise the delegated matter only in the stated circumstances.

(3)The delegate is subject to the court’s jurisdiction and power in the administration of the trust as if the delegate were the trustee.

98   Liability of trustee for acts and omissions of delegate

If a trustee delegates a matter under section 95, the trustee is liable for the acts done, and the omissions made, by the delegate in relation to the matter as if they were the trustee’s own acts and omissions.

99   Trustee to notify particular persons of delegation

(1)If a trustee delegates a matter under section 95, the trustee must give written notice of the delegation to—

(a)if the trustee has any co-trustees—each co-trustee; and

(b)if there is an appointor for the trust who is not also the trustee—the appointor.

(2)If neither subsection (1)(a) nor (b) applies, the trustee must give written notice of the delegation to each beneficiary of the trust, to the extent it is practicable to do so.

(3)Subsection (4) applies if a beneficiary to whom notice must be given under subsection (2) is—

(a)an adult with impaired capacity for financial matters relating to the adult’s interest under the trust; or

(b)a child.

(4)The trustee may comply with subsection (2) in relation to the beneficiary only by giving notice to—

(a)if the beneficiary is an adult—each administrator or attorney for the beneficiary who is authorised, under their appointment as administrator or attorney, to exercise power for financial matters relating to the beneficiary’s interest under the trust; or

(b)if the beneficiary is a child—each guardian of the child.

Subdivision 3 Revocation of delegation

100   Revocation by trustee—instrument of revocation

A trustee may revoke the delegation of a matter under section 95 by giving the delegate an instrument, signed by the trustee, revoking the delegation.

101   Revocation by trustee—impaired capacity for administering trust

The delegation of a matter under section 95 is revoked if the trustee becomes a person with impaired capacity for administering the trust.

102   Revocation by delegate

The delegation of a matter under section 95 is revoked if—

(a)the delegate resigns by written notice given to the trustee; or

(b)the delegate becomes disqualified from being appointed as a trustee by an order made under section 168; or

(c)for a delegate who is an individual, the delegate—

(i)dies; or

(ii)becomes a person with impaired capacity for administering the trust; or

(iii)becomes an insolvent under administration; or

(d)for a delegate that is a trustee corporation, the delegate—

(i)stops carrying on business; or

(ii)becomes a Chapter 5 body corporate; or

(iii)is deregistered or otherwise ceases to exist.

Subdivision 4 Protections for third parties

103   Definition for subdivision

In this subdivision—

delegate includes a former delegate.

104   Validity of particular acts of delegate in favour of third party

(1)This section applies if—

(a)a delegate does an act, or signs an instrument, in favour of another person in the exercise, or purported exercise, of power under a delegation made under section 95; but

(b)the delegate lacks the power to do the act, or sign the instrument, because the delegation of the matter, for any reason, is not in operation.

(2)The act done or instrument signed by the delegate is, in favour of the other person, as valid and effective as it would be if the delegation of the matter had been in operation.

(3)Subsection (2) does not apply if, when the act was done or the instrument was signed, the other person had actual notice that the delegation of the matter was not in operation.

(4)For this section, the delegation of a matter is in operation at a particular time only if, at that time—

(a)the delegation of the matter has commenced and is in effect; and

Note—

See section 96 in relation to when the delegation of a matter commences and is in effect.

(b)the stated circumstances apply.

105   Effect of statutory declaration by delegate

(1)This section applies if a delegate makes a statutory declaration relating to a trust stating that—

(a)the delegation of a matter under section 95 has commenced and has not been revoked or otherwise ended, and the circumstances in which the delegation is to operate apply; or

(b)in any transaction, the delegate is acting in the administration of the trust.

(2)The statutory declaration is, in favour of a person dealing with the delegate, conclusive evidence of the matter stated.

106   Persons dealing with delegate in good faith not affected by notice of trust

(1)This section applies if, in any transaction, it appears from the delegation of a matter under section 95, or from any evidence required for the purpose of a delegation under that section or otherwise, that the delegate is acting in the administration of a trust.

(2)A person dealing in good faith with the delegate is not affected by notice of the trust.

Division 5 Appointment of agents

(2)To remove any doubt, it is declared that, on the commencement, the repealed Act, section 117 ceases to apply in relation to the instrument of transfer.

309   References to repealed Act

A reference in an instrument to the repealed Act may, if the context permits, be taken to be a reference to this Act.

310   Transitional regulation-making power

(1)A regulation (a transitional regulation) may make provision about a matter for which—

(a)it is necessary to make provision to allow or facilitate the doing of anything to achieve the transition from the operation of the repealed Act to the operation of this Act; and

(b)this Act does not provide or sufficiently provide.

(2)A transitional regulation may have retrospective operation to a day not earlier than the day this section commences.

(3)A transitional regulation must declare it is a transitional regulation.

(4)This section and any transitional regulation expire on the day that is 2 years after the day this section commences.

Part 18    Amendment of Acts

Division 1 Amendment of this Act

311   Act amended

This division amends this Act.

312   Amendment of long title

Long title, from ‘, to repeal’—
omit.

Division 2 Amendment of Aboriginal Land Act 1991

313   Act amended

This division amends the Aboriginal Land Act 1991.

Note—

See also the amendments in schedule 2.

314   Amendment of pt 21, div 2, hdg (Powers of Supreme Court)

Part 21, division 2, heading, after ‘Supreme Court’—
insert—

and District Court

315   Insertion of new s 268A

Before section 269—
insert—

268A    Definition for division

In this division—

court, in relation to a proceeding relating to trust property of a land trust, means—

(a)in any case—the Supreme Court; or

(b)if the value of all the trust property of the land trust does not exceed the monetary limit under the District Court of Queensland Act 1967, section 68—the District Court.

316   Amendment of s 269 (Jurisdiction of Supreme Court)

(1)Section 269, ‘Supreme Court’—
omit, insert—

court

(2)Section 269, ‘Trusts Act 1973’—
omit, insert—

Trusts Act 2025

317   Amendment of sch 1 (Dictionary)

Schedule 1—
insert—

court, in relation to a proceeding relating to trust property of a land trust, for part 21, division 2, see section 268A.

Division 3 Amendment of Corrective Services Act 2006

318   Act amended

This division amends the Corrective Services Act 2006.

319   Amendment of s 311 (Prisoners trust fund)

Section 311—
insert—

(3A)The Trusts Act 2025 does not apply in relation to the prisoners trust fund.

320   Amendment of s 315 (Investment of prisoners trust fund)

Section 315(1)—
insert—

Note—

See section 311(3A) in relation to the non-application of the Trusts Act 2025 to the prisoners trust fund.

321   Insertion of new s 319KA

After section 319K—
insert—

319KA    Relationship with Trusts Act 2025

The Trusts Act 2025 does not apply in relation to a victim trust fund.

Division 4 Amendment of District Court of Queensland Act 1967

322   Act amended

This division amends the District Court of Queensland Act 1967.

323   Amendment of s 68 (Civil jurisdiction)

Section 68(1)(b)—
insert—

(viiia)for an application under the Trusts Act 2025 relating to a trust or trust property, where the value of all the trust property of the trust does not exceed the monetary limit;

(viiib)for another application under the Trusts Act 2025, where the value of the property to which the application relates does not exceed the monetary limit;

Division 5 Amendment of Funeral Benefit Business Act 1982

324   Act amended

This division amends the Funeral Benefit Business Act 1982.

Note—

See also the amendment in schedule 2.

325   Amendment of s 79 (Application of Trusts Act 1973)

(1)Section 79, heading, ‘Trusts Act 1973’—
omit, insert—

Trusts Act 2025

(2)Section 79(1), after ‘applies’—
insert—

if a payment is made by or on behalf of a contributor under a funeral benefit agreement

(3)Section 79(2) and (3)—
omit, insert—

(2)The Trusts Act 2025 applies in relation to the payment in the way, and to the extent, prescribed by regulation.

326   Replacement of pt 9, hdg (Transitional provisions for Liquor and Gaming (Red Tape Reduction) and Other Legislation Amendment Act 2013)

Part 9, heading—
omit, insert—

Part 9    Transitional provisions

Division 1 Transitional provisions for Liquor and Gaming (Red Tape Reduction) and Other Legislation Amendment Act 2013

327   Amendment of s 90 (Definitions for pt 9)

(1)Section 90, heading, ‘pt 9’—
omit, insert—

division

(2)Section 90, ‘part’—
omit, insert—

division

328   Insertion of new pt 9, div 2

Part 9—
insert—

Division 2 Transitional provisions for Trusts Act 2025

97   Definition for division

In this division—

new, for a provision of this Act, means the provision as in force from the commencement.

98   Application of Trusts Act 2025 to particular payments made before commencement

New section 79(2) applies in relation to a payment made to an entity as mentioned in new section 79(1) whether the payment was made before or after the commencement.

99   Continued application of repealed Trusts Act 1973 in particular circumstances

(1)This section applies if, on the commencement, a regulation under new section 79(2) is not in force.

(2)Until a regulation under new section 79(2) is first in force, the repealed Trusts Act provisions continue to apply in relation to a payment made to an entity as mentioned in new section 79(1) as if—

(a)the Trusts Act 2025 had not been enacted; and

(b)the entity were a trustee, and the payment were trust property, within the meaning of the repealed Trusts Act 1973.

(3)Subsection (2) applies whether the payment was made before or after the commencement.

(4)In this section—

repealed Trusts Act provisions means the following provisions of the repealed Trusts Act 1973—

(a)part 1;

(b)part 2, other than sections 17 and 18;

(c)part 3, other than sections 28, 30 and 30A;

(d)part 4, other than sections 32 to 48, 53 and 57;

(e)part 5;

(f)part 6, other than sections 66, 67, 73 to 75 and 78;

(g)part 7, other than sections 84, 86 to 89, 93 and 95;

(h)part 10, other than sections 114, 116 and 117.

Division 6 Amendment of Public Trustee Act 1978

329   Act amended

This division amends the Public Trustee Act 1978.

Note—

See also the amendment in schedule 2.

330   Replacement of s 40 (When public trustee being custodian trustee or statutory trustee may act as general trustee)

Section 40—
omit, insert—

40   When public trustee as custodian trustee may act as managing trustee

(1)This section applies if—

(a)the public trustee has been appointed under the Trusts Act 2025, section 47 as the custodian trustee of trust property; and

(b)because of a circumstance mentioned in section 20(1)(a) to (i) of that Act, there is no managing trustee of the trust capable of acting in the execution of the trust.

(2)Until a new managing trustee of the trust is appointed, the public trustee—

(a)may act as managing trustee of the trust; and

(b)for that purpose, has all the powers, authorities and discretions of a managing trustee of the trust.

Note—

See the Trusts Act 2025, section 49.

(3)However, the public trustee is not required to act in the execution of the trust.

(4)This section does not affect the power of any court or person to appoint a new managing trustee of the trust, but an appointment of a managing trustee does not take effect until written notice of the appointment is given to the public trustee.

(5)In this section—

managing trustee see the Trusts Act 2025, section 46.

40A    When public trustee as statutory trustee may act as trustee

(1)This section applies if, apart from this section, the public trustee is a statutory trustee within the meaning of the Trusts Act 2025.

(2)Until a new trustee of the trust is appointed, the public trustee—

(a)may act as a trustee of the trust who is not a statutory trustee; and

(b)for that purpose, has all the powers, authorities and discretions of a trustee who is not a statutory trustee within the meaning of the Trusts Act 2025.

331   Insertion of new pt 10, div 4

Part 10—
insert—

Division 4 Transitional provisions for Trusts Act 2025

150   When public trustee as custodian trustee may act as managing trustee—existing appointment

Section 40, as inserted by the Trusts Act 2025, applies as if—

(a)the reference in section 40(1)(a) to the Trusts Act 2025, section 47 included a reference to the repealed Trusts Act 1973, section 19; and

(b)the reference in section 40(1)(b) to the Trusts Act 2025, section 20(1)(a) to (i) included a reference to the repealed Trusts Act 1973, section 12(1)(a) to (h) or (3).

151   Application of former s 40(3) to particular statutory trustees

(1)This section applies if, immediately before the commencement, the public trustee was, apart from former section 40(3), a statutory trustee within the meaning of the repealed Trusts Act 1973 of land mentioned in section 6(1)(a) of that Act.

(2)Former section 40(3) continues to apply to the public trustee as if the Trusts Act 2025 had not been enacted.

(3)In this section—

former section 40(3) means section 40(3) as in force immediately before the commencement.

Division 7 Amendment of River Improvement Trust Act 1940

332   Act amended

This division amends the River Improvement Trust Act 1940.

333   Insertion of new s 5BA

After section 5B—
insert—

5BA    Relationship with Trusts Act 2025

The Trusts Act 2025, section 14 does not apply to a trust established under this Act.

334   Replacement of pt 9, hdg (Transitional provision for Water Legislation Amendment Act 2016)

Part 9, heading—
omit, insert—

Part 9    Transitional and validation provisions

Division 1 Transitional provision for Water Legislation Amendment Act 2016

335   Insertion of new pt 9, div 2

Part 9—
insert—

Division 2 Validation provision for Trusts Act 2025

25   Relationship with repealed Trusts Act 1973

The repealed Trusts Act 1973, section 11 is taken—

(a)never to have applied to a trust established under this Act; and

(b)never to have affected the appointment of a member of a trust made, before the commencement of this section, under part 3, division 1 of this Act.

Division 8 Amendment of Succession Act 1981

336   Act amended

This division amends the Succession Act 1981.

Note—

See also the amendments in schedule 2.

337   Insertion of new ss 49B–49D

After section 49A—
insert—

49B   Power to carry on business

(1)This section applies if, at the time of a deceased person’s death, the person was engaged in carrying on a business.

(2)The personal representative of the deceased person may carry on the business, but only for—

(a)the period, of not more than 2 years from the deceased person’s death, that is reasonably necessary for realising the business; and

(b)any further period approved by the court under section 49D.

(3)For the purpose of carrying on the business, the personal representative may—

(a)use any part of the deceased person’s estate that is reasonably necessary; and

(b)increase or reduce, as necessary, usage of the estate under paragraph (a); and

(c)buy stock, machinery, implements and chattels; and

(d)employ the managers, agents, workers and other persons the personal representative considers appropriate; and

(e)at any time, enter into a partnership agreement to take the place of any partnership agreement in effect immediately before, or at any time after, the deceased person’s death; and

(f)enter into sharefarming agreements.

(4)For subsection (3)(e), it does not matter that the personal representative was a partner of the deceased person in the personal representative’s own right.

(5)Nothing in this section affects any other authority to do the acts authorised to be done under this section.

(6)If the deceased person’s estate is being administered under the deceased person’s will, this section is subject to a contrary intention appearing in the will.

(7)Without limiting subsection (6), a provision of the deceased person’s will that confers on the personal representative the power to postpone the sale of any relevant business property is, for that subsection, taken to be a contrary intention appearing in the deceased person’s will.

(8)This section applies—

(a)despite the Trusts Act 2025, sections 82 and 83; but

(b)subject to the other provisions of the Trusts Act 2025 and any other Act.

(9)In this section—

relevant business property, in relation to a deceased person, means property that, at the time of the deceased person’s death, was being used by the person in carrying on a business.

Note—

See, however, the Trusts Act 2025, section 264 in relation to the continued application of the repealed Trusts Act 1973, section 57 to a trustee who, immediately before the commencement, was carrying on a business under that section.

49C    Power to subscribe to particular funds if carrying on business

(1)This section applies if the personal representative of a deceased person is carrying on a business under section 49B.

(2)The personal representative may subscribe to a relevant fund in connection with the business if the personal representative considers it would, if the personal representative were acting for themself, be prudent to subscribe to the fund.

(3)Subscriptions to the relevant fund must be paid from the business income of the deceased person’s estate.

(4)This section does not affect any other authority the personal representative may have to subscribe to the relevant fund.

(5)If the deceased person’s estate is being administered under the deceased person’s will, this section is subject to a contrary intention appearing in the will.

(6)In this section—

relevant fund, in connection with a business, means a fund that—

(a)is created for objects or purposes in support of any business of a similar nature; and

(b)is subscribed to by other persons engaged in a similar business.

49D    Court may approve period for carrying on business

(1)This section applies if, at the time of a deceased person’s death, the person was engaged in carrying on a business.

(2)The court may, on application by the personal representative of the deceased person or a beneficiary of the deceased person’s estate—

(a)by order, approve that the personal representative may carry on the business for a stated period, including on the conditions the court considers appropriate; and

(b)make the order retrospective to a stated date.

(3)An application for an order under subsection (2) may be made at any time, whether or not any previous authority to carry on the business, including a previous approval under this section, has ended.

338   Insertion of new s 53A

After section 53—
insert—

53A    Protection of personal representatives for calls made after transfer of shares

(1)This section applies if, on a deceased person’s death, the person was registered as the holder of shares in a company that have not been fully paid up.

(2)The personal representative of the deceased person may distribute the deceased person’s estate as soon as the personal representative has obtained the registration of some other person as the holder of the shares.

(3)It is not necessary for a distribution under subsection (2) for the personal representative to reserve any portion of the estate for the payment of calls made after the date of the registration, whether the call is made by the company or its directors or by its liquidator in a winding-up.

(4)This section does not affect any right the company or its liquidator may have to follow the assets of the deceased person’s estate into the hands of the persons to whom the assets have been distributed.

(5)In this section—

personal representative, of a deceased person, includes a trustee of the will or estate of the deceased person.

339   Insertion of new s 61AA

After section 61—
insert—

61AA    Abolition of rule in Allhusen v Whittell

(1)This section applies if—

(a)under the will of a person who dies on or after 1 July 1973, any property included in a disposition of the residuary estate is settled in succession (the settled property); and

(b)income is derived from the settled property.

(2)The personal representative of the deceased person must not apply any part of the income of the settled property to pay any of the following (each a capital expense)—

(a)the debts and liabilities that have accrued at the date of the deceased person’s death;

(b)the funeral, testamentary and administration expenses;

(c)any legacies bequeathed by the will.

(3)Subsection (2) does not apply in relation to—

(a)any commission payable to the personal representative in relation to the income of the settled property; or

(b)any testamentary or administration expenses that, apart from that subsection, would be payable wholly out of income.

(4)The personal representative must—

(a)apply the income of the settled property, in priority to any other property, to pay the interest (if any) that accrues on a capital expense after the date of the deceased person’s death and up to the payment of the capital expense; and

(b)pay the balance of the income of the settled property to the person for the time being entitled to the income.

(5)If, after the deceased person’s death, income is derived from property that is ultimately applied (wholly or in part) to pay a capital expense, for this section, the income is taken to be income of the residuary estate.

(6)This section—

(a)affects only the rights of the beneficiaries under the deceased person’s will; and

(b)does not affect the rights of creditors of the deceased person’s estate.

(7)This section applies subject to—

(a)a contrary intention appearing in the deceased person’s will; and

(b)the provisions of any Act about charges on the property of the deceased person’s estate.

(8)In this section—

personal representative, of a deceased person, includes a trustee of the will of the deceased person.

Division 9 Amendment of Torres Strait Islander Land Act 1991

340   Act amended

This division amends the Torres Strait Islander Land Act 1991.

Note—

See also the amendments in schedule 2.

341   Amendment of pt 15, div 2, hdg (Powers of Supreme Court)

Part 15, division 2, heading, after ‘Supreme Court’—
insert—

and District Court

342   Insertion of new s 173A

Before section 174—
insert—

173A    Definition for division

In this division—

court, in relation to a proceeding relating to trust property of a land trust, means—

(a)in any case—the Supreme Court; or

(b)if the value of all the trust property of the land trust does not exceed the monetary limit under the District Court of Queensland Act 1967, section 68—the District Court.

343   Amendment of s 174 (Jurisdiction of Supreme Court)

(1)Section 174, ‘Supreme Court’—
omit, insert—

court

(2)Section 174, ‘Trusts Act 1973’—
omit, insert—

Trusts Act 2025

344   Amendment of sch 1 (Dictionary)

Schedule 1—
insert—

court, in relation to a proceeding relating to trust property of a land trust, for part 15, division 2, see section 173A.

Part 19    Other amendments

345   Legislation amended

Schedule 2 amends the legislation it mentions.

Schedule 1 Dictionary

section 5

able and willing to act, as appointor for a trust, for part 3, see section 18.

accountant means—

(a)a member of CPA Australia who is entitled to use the letters ‘CPA’ or ‘FCPA’; or

(b)a member of Chartered Accountants Australia and New Zealand who is entitled to use the letters ‘CA’ or ‘FCA’; or

(c)a member of the Institute of Public Accountants who is entitled to use the letters ‘MIPA’ or ‘FIPA’.

administrator means—

(a)an administrator under the Guardianship and Administration Act 2000 appointed for 1 or more financial matters for a person; or

(b)another person authorised by an order registered under the Guardianship and Administration Act 2000, section 169 to do anything in relation to 1 or more financial matters for a person.

advancement, in relation to a person, includes benefit.

agent means an agent appointed under section 107.

appointor, for a trust, means a person nominated in the trust instrument for the purpose of appointing new trustees of the trust.

apprehended decision, for part 11, division 9, see section 187(1)(b)(ii).

approved form means a form approved under section 219.

attorney means a person appointed as an attorney, and authorised to do anything in relation to 1 or more financial matters for another person, by an enduring power of attorney—

(a)made by the other person under the Powers of Attorney Act 1998; or

(b)made by the other person in another jurisdiction and recognised under section 34 of that Act.

benefit, in relation to the advancement of a person, includes insurance on the life of the person.

capacity, for a matter, see section 10(1).

Chapter 5 body corporate see the Corporations Act, section 9.

charitable see section 11.

charitable trust means a trust created for a charitable purpose.

charity means an institution, whether or not incorporated, that is established for a charitable purpose.

claim, in relation to a trust, for part 9, division 2, see section 137.

claimant—

(a)for part 9, division 2—see section 137; or

(b)for part 9, division 3—see section 143(1)(b).

contingent right, in relation to land, includes—

(a)a contingent or executory interest and a possibility coupled with an interest, whether or not the object of the gift or limitation of the interest or possibility is ascertained; and

(b)a right of entry, whether immediate or future, and whether vested or contingent.

continuing trustee includes a surviving trustee.

court means—

(a)in relation to any matter under this Act—the Supreme Court; or

(b)in relation to a matter under this Act for which the District Court has jurisdiction under the District Court of Queensland Act 1967—the District Court.

create, a trust, includes establish a trust.

custodian trustee means a corporation appointed as a custodian trustee under section 47.

deductible gift recipient, for part 13, see section 212.

delegate—

(a)for part 7, division 4, generally—see section 95(4)(b); or

(b)for part 7, division 4, subdivision 4—see section 103.

eligible recipient, for part 13, see section 212.

entitled person, for part 7, division 3, see section 90(1)(a) and (b).

extension application, for part 7, division 3, see section 89(4).

financial matter—

(a)in relation to an adult for whom an attorney is appointed—see the Powers of Attorney Act 1998, schedule 2, section 1; or

(b)in relation to any other adult—see the Guardianship and Administration Act 2000, schedule 2, section 1.

government entity, for part 13, see section 212.

guardian, in relation to a child, means—

(a)a parent of the child; or

(b)another person who has the legal parental responsibility for making decisions about the long-term care, wellbeing and development of the child.

impaired capacity, for a matter, see section 10(2).

instrument of change, for part 3, division 5, see section 32(1).

instrument of delegation, for part 7, division 4, see section 95(2).

interested person, for part 7, division 3, see section 88(2).

investment power, for part 6, see section 66.

last continuing trustee includes a sole trustee.

lease includes bailment.

licensed trustee company see the Corporations Act, section 9.

management power, in relation to a trust, for part 11, division 6, see section 178.

managing trustee, of a trust, see section 46.

minimum trustee requirements, for a trust, for part 3, division 3, see section 27.

mortgage debt, for part 7, division 6, see section 110(1)(a).

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

possessed, of property, for part 11, see section 162.

post-change trustee, in relation to an instrument of change, for part 3, division 5, see section 33.

potential claimant, for part 9, division 2, see section 137.

pre-change trustee, in relation to an instrument of change, for part 3, division 5, see section 33.

prescribed power, for a prescribed trust, for part 13, see sections 213(2) and 214(3).

prescribed trust, for part 13, see section 212.

primary beneficiary, in relation to a mortgage debt held on trust for persons in succession, for part 7, division 6, see section 109.

priority outgoing, in relation to land the subject of a mortgage, for part 7, division 6, see section 109.

professional charges, of a professional trustee, for part 10, see section 158.

professional investor, for part 6, see section 66.

professional trustee—

(a)for part 5—see section 59; or

(b)for part 10—see section 158.

protective trust, for part 11, division 7, see section 182.

public trustee means the public trustee under the Public Trustee Act 1978.

recipient, for part 9, division 3, see section 143(2).

relevant capital, for part 8, see section 128(2).

relevant decision, for part 11, division 9, see section 187(1)(b)(i).

relevant power, in relation to a trustee or another person, for part 11, division 9, see section 186.

relevant registrar means—

(a)in relation to land—the registrar under the Land Title Act 1994 or other person having the function of registering or recording dealings with the land; or

(b)in relation to a water allocation—the registrar under the Water Act 2000.

relevant trust, for part 13, see section 212.

requirement, of another Act or of a law of another State or the Commonwealth, includes a requirement the other Act or law authorises or permits to be imposed.

sale, of property, includes an exchange of property.

securities includes stock and debentures.

stated circumstances, in relation to the delegation of a matter, for part 7, division 4, see section 95(4)(a).

statutory trustee see section 7(2).

stock includes shares.

trust see section 6.

trustee—

(a)generally—see section 7(1); or

(b)for part 5—see section 59; or

(c)for part 10—see section 158.

trustee corporation means—

(a)the public trustee; or

(b)a licensed trustee company.

trust instrument see section 8.

trust property see section 9.

variation application, for part 7, division 3, see section 89(1)(a).

vesting order see section 171(1).

water allocation means a water allocation under the Water Act 2000.

Schedule 2 Other amendments

section 345

Aboriginal Land Act 1991

1   Part 21, heading, ‘Trusts Act 1973’—

omit, insert—

Trusts Act 2025

2   Section 267, heading, ‘Trusts Act 1973’—

omit, insert—

Trusts Act 2025

3   Section 267(1), (2) and (3), ‘Trusts Act 1973’—

omit, insert—

Trusts Act 2025

4   Section 268, heading, ‘Trusts Act 1973’—

omit, insert—

Trusts Act 2025

5   Section 268(1), ‘Trusts Act 1973’—

omit, insert—

Trusts Act 2025

6   Sections 270(1), 271(2) and 272(1), ‘Supreme Court’—

omit, insert—

court

7   Section 273(1), ‘Supreme Court’s’—

omit, insert—

court’s

8   Sections 273, 274(1), 275 and 276, ‘Supreme Court’—

omit, insert—

court

Building Industry Fairness (Security of Payment) Act 2017

1   Section 56A, heading, ‘Trusts Act 1973’—

omit, insert—

Trusts Act 2025

2   Section 56A, ‘the Trusts Act 1973’—

omit, insert—

the Trusts Act 2025

Charitable Funds Act 1958

1   Section 3(3), ‘the Supreme Court or of any judge’—

omit, insert—

the Supreme Court or the District Court, or the powers of the Attorney-General,

2   Section 3(3)—

insert—

Note—

See the Trusts Act 2025, part 12, division 3 in relation to the approval of particular schemes by the Supreme Court, the District Court and the Attorney-General.

3   Section 21(c), from ‘is vested in any persons’—

omit, insert—

is vested in any persons—

(i)the order vesting the property has the same effect as if it were a vesting order under the Trusts Act 2025 made in relation to property of the same type; and

(ii)the Trusts Act 2025, part 11, division 4 applies, with any necessary modifications, in relation to the order as if it were a vesting order mentioned in subparagraph (i);

Funeral Benefit Business Act 1982

1   Section 40(1)(a), ‘Trusts Act 1973, part 3’—

omit, insert—

Trusts Act 2025, part 6

Guardianship and Administration Act 2000

1   Schedule 4, definition authorised investment, paragraph (a), from ‘would be’—

omit, insert—

would be an investment in accordance with the Trusts Act 2025; or

Land Act 1994

1   Section 90, ‘Trusts Act 1973’—

omit, insert—

Trusts Act 2025

Land Valuation Act 2010

1   Section 210(2)—

omit, insert—

(2)Despite the Trusts Act 2025, section 78(3), the valuer-general’s certificate is taken to be an independent valuation of the property for section 78(2)(a) of that Act.

2   Section 210(4), definition trustee, ‘Trusts Act 1973, section 5’—

omit, insert—

Trusts Act 2025, section 7(1)

Legal Aid Queensland Act 1997

1   Section 45(2), ‘Trusts Act 1973’—

omit, insert—

Trusts Act 2025

Limitation of Actions Act 1974

1   Section 5(1), definition trust, ‘Trusts Act 1973’—

omit, insert—

Trusts Act 2025, section 6

2   Section 5(1), definition trustee, ‘Trusts Act 1973’—

omit, insert—

Trusts Act 2025, section 7(1)

Nature Conservation Act 1992

1   Section 31(5), ‘Trusts Act 1973’—

omit, insert—

Trusts Act 2025

Powers of Attorney Act 1998

1   Section 84(3), definition authorised investment, paragraph (a), from ‘would be’—

omit, insert—

would be an investment in accordance with the Trusts Act 2025; or

Property Law Act 1974

1   Section 38(3A), ‘Trusts Act 1973, section 90’—

omit, insert—

Trusts Act 2025, sections 173 to 175

2   Section 222(2), ‘Trusts Act 1973’—

omit, insert—

Trusts Act 2025

Property Law Act 2023

1   Section 38(1), ‘Trusts Act 1973, section 90’—

omit, insert—

Trusts Act 2025, sections 173 to 175

Public Trustee Act 1978

1   Sections 19(1)(d) and 41(7), ‘Trusts Act 1973’—

omit, insert—

Trusts Act 2025

Retirement Villages Act 1999

1   Sections 95 and 101, ‘an authorised investment under the Trusts Act 1973.’—

omit, insert—

an investment made under the Trusts Act 2025, section 69 in accordance with the duties under—

(a)sections 70 and 71 of that Act; and

(b)either—

(i)part 6, division 2 of that Act; or

(ii)part 5, division 2 of that Act, to the extent that division applies in relation to the exercise of an investment power.

2   Sections 95 and 101—

insert—

(2)In this section—

investment power see the Trusts Act 2025, section 66.

Succession Act 1981

1   Section 5, definition trustee, paragraph (b), ‘Trusts Act 1973’—

omit, insert—

Trusts Act 2025

2   Section 6(4), ‘Trusts Act 1973’—

omit, insert—

Trusts Act 2025

3   Section 36(12), ‘Trusts Act 1973, section 67(3)’—

omit, insert—

Trusts Act 2025, section 136(1)

4   Section 45(5), ‘and notwithstanding the provisions of the Trusts Act 1973, section 16,’—

omit.

5   Section 49(1), ‘Trusts Act 1973’—

omit, insert—

Trusts Act 2025

Torres Strait Islander Land Act 1991

1   Section 155(2), note—

omit, insert—

Note—

See also section 173 in relation to the application of the Trusts Act 2025.

2   Part 15, heading, ‘Trusts Act 1973’—

omit, insert—

Trusts Act 2025

3   Section 173, heading, ‘Trusts Act 1973’—

omit, insert—

Trusts Act 2025

4   Section 173(1), (2) and (3), ‘Trusts Act 1973’—

omit, insert—

Trusts Act 2025

5   Sections 175(1), 176(2) and 177(1), ‘Supreme Court’—

omit, insert—

court

6   Section 178(1), ‘Supreme Court’s’—

omit, insert—

court’s

7   Sections 178, 179(1), 180 and 181, ‘Supreme Court’—

omit, insert—

court

Trustee Companies Act 1968

1   Section 37(2)(a)—

omit, insert—

(a)in investments that—

(i)could be made by a trustee exercising an investment power under the Trusts Act 2025, part 6; or

(ii)are authorised by any other Act for the investment of trust funds; or

United Grand Lodge of Antient Free and Accepted Masons of Queensland Trustees Act 1942

1   Section 3D, heading, ‘Unauthorised’—

omit, insert—

Particular

2   Section 3D, ‘an authorised investment within the meaning of the Trusts Act 1973’—

omit, insert—

a prescribed investment

3   Section 3D—

insert—

(2)In this section—

investment power see the Trusts Act 2025, section 66.

prescribed investment means an investment made under the Trusts Act 2025, section 69 in accordance with the duties under—

(a)sections 70 and 71 of that Act; and

(b)either—

(i)part 6, division 2 of that Act; or

(ii)part 5, division 2 of that Act, to the extent that division applies in relation to the exercise of an investment power.

© State of Queensland 2025