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Trustees Act

Western Australia
T rustees Act 1962
Reprinted under the
Reprints Act 1984 as
at 13 July 2012
Western Australia
T rustees Act 1962
CONTENTS
Part I — Preliminary
1. Short title

2
2. Commencement
2
4. Repeals
2
5. Application
2
6. Terms used
4
Part II — Appointment and
discharge of trustees
7. New trustees, appointment of
8
8. New trustee, protection for people dealing with
in good faith
11
9. Trustee may retire without replacement in some
cases
11
10. Trust property, vesting of in new or continuing
trustees
12
11. Corporation may act as trustee in some cases
14
12. Renouncing probate etc., effect of
14
13. Trustee corporation obtaining probate etc., effect
of
15
14. Advisory trustees, appointment and functions of
16
15. Custodian trustees, appointment and functions of
17
Part III — Investments
16. Application of Part
20
17. Trust funds, investment of
20
18. Investment power of trustees, exercise of

20
19. Investment power of trustees, rules of law and
equity apply
21
20. Investment by trustee, matters to be considered
22
21. Company shares etc. held in trust, trustees’
powers as to
23
22. Choses in action under RITS system,
presumptions as to
24
23. Calls on shares, trustees’ powers as to
25
24. Residence for beneficiary, power to invest in etc.
25
25. Retained authorised investments, no liability for
26
26. Loans secured against property, trustees’ liability
for
26
26A. Improper loans, trustees’ limited liability for
27
26B. Breach of trust as to investments, factors to be
considered by Court
27
26C. Breach of trust as to investments, Court may set
off losses against gains
28
26D. Housing loans, trustees’ liability for
28
26E. Authorised trustee investments, meaning of
31
Part IV — General powers of
trustees
27. Property, powers to sell, lease, exchange, etc.
32
28. Trust or power to sell property, duration of
34
28A. Option to purchase land, trustees’ liability for
grant of

35
29. Rule against perpetuities, application of
35
30. Property, miscellaneous powers as to
36
31. Trust or power to sell, ancillary powers to
41
32. Depreciatory conditions of sale, effect of
42
33. Land may be sold and proceeds secured by
mortgage
42
34. Property may be sold on terms of deferred
payment
43
35. Onerous leases or property may be surrendered
44
36. Leases may be renewed
45
37. Equity of redemption may be purchased instead
of foreclosing
45
38. Property may be sold after right of redemption
barred
46
39. Equity of redemption may be released in
discharge of mortgage debt
46
40. Trustee as mortgagee in possession, application
of income by
47
41. Receipts may be given
49
42. Property, debts, etc., miscellaneous powers as to
49
43. Capital money may be raised by sale, mortgage,
etc. of trust property
50
44. Purchasers etc. dealing with trustees, protection
for
50
45. Trustees dying, devolution of powers or trusts

50
46. Insuring trust property
51
47. Insurance money, application of
51
48. Trust’s documents may be put in safe custody
52
49. Reversionary interests, powers as to
53
50. Valuation of trust property, powers as to
54
51. Trust’s accounts, audit of
54
52. Co-owners, power to act in conjunction with
55
53. Agents, attorneys, etc., power to employ
55
54. Delegation of trustees’ powers during absence
from State or incapacity
57
55. Business, trade, etc. of deceased, power to carry
on
59
56. Business, power to convert into, or sell to, a
company
61
57. Trustee may sue himself in a different capacity
61
Part V — Maintenance,
advancement and
protective trusts
58. Infant beneficiary, application of income
until 18
62
59. Capital may be applied for maintenance,
education, etc.
64
60. Advances for maintenance etc. may be made
conditionally
65
61. Protective trusts, rules as to

66
Part VI — Indemnities and
protection of trustees, etc.
62. Leases etc., trustees’ liability under
68
63. Deceased estate, advertising for claims against,
trustees’ protection
69
64. Claims etc., procedure for barring
71
65. Deceased estate, claims made after distribution
of, tracing, following assets
73
66. Unknown beneficiaries, advertising for,
distribution of shares of
76
67. Service of notices etc. under s. 30(1)(k), 64 and
66
79
68. Trustee of more than one trust, protection as to
notice
80
69. Powers of attorney, protection for trustees
relying on
80
70. Trustees liable for own defaults etc. only
80
71. Trustees’ expenses, reimbursement out of trust
property
81
72. Chattels, bequest for life etc. or interest in,
trustees’ protection
81
73. Chattels bequeathed to infant, dealing with
82
74. Shares, trustees’ liability for calls on after
transfer of
82
75. Breach of trust, Court may relieve trustee from
personal liability for
82
76. Breach of trust, Court may order beneficiary to
give indemnity for

83
Part VII — Further powers of the
Court
Division 1 — Appointment of new trustees
77. New trustees, Court may appoint
84
Division 2 — Vesting orders
78. Vesting orders, when Court may make
85
79. Vesting orders, terms of etc.
86
80. Contingent rights of unborn persons, orders as to
87
81. Mortgagee under a disability, orders as to
87
82. Infant’s beneficial interest, orders as to
87
83. Order for sale or mortgage of land, effect of etc.
88
84. Orders for conveyance of land etc.,
consequential declarations and orders as to
88
85. Vesting orders, effect of
89
86. Vested stock etc., directions as to transfer of etc.
90
87. Person may be appointed to convey instead of
vesting order
91
88. Charities etc., vesting property in
91
Division 3 — Jurisdiction to make other orders
89. Additional powers, Court may confer on trustee
etc.
91
90. Varying or revoking certain trusts, Court’s
powers as to
92
91. Periodic payments, Court may vary amount of
94

92. Directions, trustee may ask Court for
94
93. Applications to Court, who may make
94
94. Review of trustee’s acts by Court etc.
95
95. Trustee acting under Court’s direction,
protection of
95
96. Absence etc. of parties, Court may proceed in
96
97. Costs of court proceedings, orders as to
97
98. Trustees’ remuneration
97
99. Payment into Court by trustees
98
Part VIII — Miscellaneous
100. Indemnity to persons acting under this Act etc.
99
101. Bankers acting on trustees’ authority, protection
of
99
102. Non-charitable and invalid purposes, inclusion
does not invalidate a trust
100
103. Interest bearing securities, apportionment of
interest on sale etc.
101
104. Residuary estate of deceased, application of
income from
102
105. Residuary estate of deceased, application of
income pending sale etc.
103
106. Annuities etc., to be applied as income in some
cases
104
107. Trustees’ remuneration deemed testamentary
expenses
104

108. Missing beneficiaries etc., costs of inquiries as to
105
109. Life tenant etc. to have powers of a trustee in
certain cases
105
110. Regulations
105
First Schedule — Acts repealed
Second Schedule — Form of notice
by advertisement
Notes
Compilation table
108
Provisions that have not come into operation
110
Defined Terms

Reprinted under the
Reprints Act 1984 as
at 13 July 2012
Western Australia
T rustees Act 1962
An Act to consolidate and amend the law relating to trustees.
Part I — Preliminary
1. Short title

This Act may be cited as the Trustees Act 1962 1.
2. Commencement
This Act shall come into operation on 1 January 1963.
[3. Deleted by No. 1 of 1997 s. 4.] 4. Repeals
(1) The Acts specified in the First Schedule are hereby repealed to
the extent mentioned in that Schedule.
(2) Without limiting the provisions of the Interpretation Act 1918 2,
the repeal of any enactment by this Act does not affect any
document made or any thing whatsoever done under the
enactment so repealed or under any corresponding former
enactment, and every such document or thing, so far as it is
subsisting or in force at the time of the repeal and could have
been made or done under this Act, shall continue and have effect
as if it had been made or done under the corresponding provision
of this Act and as if that provision had been in force when the
document was made or the thing was done.
5. Application
(1) Except where otherwise expressly provided, this Act applies to
every trust, as defined in section 6, whether constituted or created
before or after the commencement of this Act.
(1a) Except where otherwise expressly provided, this Act as amended
by the Trustees Amendment Act 1987 applies to every trust, as
defined in section 6, whether constituted or created before or after
the commencement of the Trustees Amendment Act 1987 1.
(2) The powers conferred by or under this Act on a trustee who is
not a corporation are in addition to the powers given by any other
Act and by the instrument (if any) creating the trust; but the
powers conferred on the trustee by this Act, unless otherwise
stated, apply if and so far only as a contrary intention is not
expressed in the instrument (if any) creating the trust, and have
effect subject to the terms of that instrument.
(3) The powers conferred by or under this Act on a trustee that is a
corporation are in addition to the powers given by the instrument
(if any) creating the trust and to the powers given by or under the
Act or any instrument by or under which the corporation is
constituted and any other Act; but the powers conferred on the
trustee by this Act, unless otherwise stated —

(a) apply if and so far only as a contrary intention is not
expressed in the instrument (if any) creating the trust and
have effect subject to the terms of that instrument; and
(b) apply if and so far only as a contrary intention is not
expressed in the Act or any instrument by or under which
the corporation is constituted or any other Act, and have
effect subject to the terms of every such Act and
instrument; but nothing in this paragraph affects any Act
that applies to every trustee, whether a corporation or not.
(4) This Act does not affect the legality or validity of anything done
before the commencement of this Act, except as in this Act
expressly provided.
(5) This Act binds the Crown.
[Section 5 amended by No. 84 of 1987 s. 4.] 6. Terms used
(1) In this Act, unless the context otherwise requires, —
bank means —
(a) an ADI (authorised deposit-taking institution) as defined
in section 5 of the Banking Act 1959 of the
Commonwealth; or
(b) a bank constituted by a law of a State, a Territory or the
Commonwealth;
bankrupt includes insolvent;
benefit , in relation to any person, includes insurance on the life of
that person;
contingent right , in relation to land, includes a contingent or
executory interest and a possibility coupled with an interest,
whether the object of the gift or limitation of the interest or
possibility is or is not ascertained; and also a right of entry,
whether immediate or future, and whether vested or contingent;
conveyance , as applied to any person, includes the execution or
doing by that person of every necessary or suitable assurance,
act, and thing for conveying, transferring, assigning, appointing,
surrendering or otherwise disposing of property; and to convey
has a corresponding meaning;
Court means the Supreme Court of Western Australia or a judge
thereof;
execute includes the doing of all acts and things necessary for a
conveyance, and with reference to an instrument not under seal
means sign, and derivatives of “execute” have corresponding
meanings;

income includes rents and profits other than profits that under
any rule of law are in the nature of capital;
instrument includes an Act of Parliament;
land includes —
(a) land of any tenure; and
(b) mines and minerals, whether or not severed from the
surface; and
(c) buildings or parts of buildings, whether the division is
horizontal, vertical or made in any other way; and
(d) any other corporeal hereditament; and
(e) a rent and other incorporeal hereditaments; and
(f) an easement, right, privilege, share, interest or benefit in,
over or derived from land;
and, in this definition, mines and minerals includes any strata or
seams or minerals or substances in or under any land, and
powers of working or getting them and hereditament means real
property that under an intestacy might at common law have
devolved on an heir;
lease includes a bailment;
mortgagee includes every person having an estate or interest
regarded at law or in equity as merely a security for money and
every person deriving title to the mortgage under the original
mortgagee; and mortgage has a corresponding meaning;
payment , in relation to stocks and securities, includes the deposit
or transfer of them; and to pay has a corresponding meaning;
person includes a trustee corporation and a corporation sole, and
also a body of persons, whether corporate or unincorporate;
personal representative means the executor, original or by
representation, or an administrator for the time being of the estate
of a deceased person;
possession includes receipt of income or the right to receive the
income, if any; and possessed applies to receipt of income of and
to any vested estate less than a life interest, at law or in equity, in
possession or in expectancy in any land;
property includes real and personal property and any estate,
share, and interest in any property, real or personal, and any debt,
and any thing in action, and any other right or interest, whether in
possession or not;
rent includes a rent service or a rent charge, or other rent, toll,
duty, royalty or annual or periodic payment in money or money’s
worth reserved or issuing out of or charged upon land, but does
not include mortgage interest;

right includes an estate or interest;
sale includes an exchange; and to sell has a corresponding
meaning;
securities includes stock, funds, shares and promissory notes;
and securities payable to bearer includes securities transferable
by delivery or by delivery and endorsement;
stock includes shares, and, so far as relates to vesting orders
made by the Court under this Act, includes any fund, annuity or
security transferable in books kept by any corporation or society,
or by instrument of transfer, either alone or accompanied by other
formalities, and any share or interest therein;
transfer , in relation to stock or securities, includes the
performance and execution of every deed, power of attorney, act,
and thing on the part of the transferor to effect and complete the
title in the transferee;
trust does not include the duties incidental to an estate conveyed
by way of mortgage, but with that exception trust extends to
implied and constructive trusts, and to cases where the trustee has
a beneficial interest in the trust property, and to the duties
incidental to the office of a personal representative; and trustee
has a corresponding meaning and includes a trustee corporation
and every other corporation in which property subject to a trust is
vested and every person who immediately before the
commencement of this Act was a trustee of the settlement or in
any way a trustee under the Settled Land Act of 1892 3 and,
where the context admits, includes a personal representative; and
new trustee includes an additional trustee;
trustee corporation means the Public Trustee in and for Western
Australia or any trustee company under the Trustee Companies
Act 1987 ;
trust for sale , in relation to land, means an immediate binding
trust for sale, whether or not exercisable at the request or with the
consent of any person, and with or without power at discretion to
postpone the sale; and trustee for sale means the person
(including a personal representative) holding land on trust for
sale.
(2) Any reference to the investment, loan or advance of trust money
by a trustee on the security of property shall be construed to
include a reference to such investment, loan or advance on the
transfer of an existing security as well as on a new security.
(3) For the purposes of this Act, a person shall be deemed to be
under a disability while he is not of full age or of full mental
capacity.

[Section 6 amended by No. 84 of 1987 s. 5; No. 1 of 1997 s. 5;
No. 26 of 1999 s. 108; No. 39 of 2011 s. 18.] Part II — Appointment and discharge of trustees
7. New trustees, appointment of
(1) Where a trustee, whether original or substituted, and whether
appointed by the Court or otherwise, —
(a) is dead; or
(b) remains out of the State for more than one year without
having properly delegated the execution of the trust; or
(c) seeks to be discharged from all or any of the trusts or
powers reposed in or conferred on him; or
(d) refuses to act therein; or
(e) is unfit to act therein; or
(f) is incapable of acting therein; or
(g) is an infant; or
(h) being a corporation, has ceased to carry on business, is in
liquidation or is dissolved,
then the person nominated for the purpose of appointing new
trustees by the instrument (if any) creating the trust, or if there is
no such person or no such person able and willing to act, then the
surviving or continuing trustee or trustees for the time being, or
the personal representatives of the last surviving or continuing
trustee, may by writing appoint a person or persons, whether or
not being the person or persons exercising the power, to be a
trustee or trustees in the place of the trustee first in this subsection
mentioned.
(2) On the appointment of a trustee or trustees for the whole or any
part of the trust property —
(a) where the number of trustees originally appointed was
less than 4, 2 or more trustees may be appointed in place
of a trustee being replaced under this section, but so that
after any appointment the number of trustees shall not
exceed 4; and
(b) a separate set of trustees may be appointed for any part of
the trust property held on trusts distinct from those
relating to any other part, and whether or not new trustees
are or are to be appointed for any other part of the trust
property; and any existing trustee may be appointed or
remain one of the separate set of trustees; or if only one
trustee were originally appointed, then one separate
trustee may be so appointed for the part of the trust first in

this paragraph mentioned; and
(c) it shall not be obligatory to appoint more than one new
trustee where only one trustee was originally appointed,
or to fill up the original number of trustees where more
than 2 trustees were originally appointed; but, except
where only one trustee was originally appointed, a trustee
shall not be discharged under this section unless there will
remain either a trustee corporation or at least 2 individuals
to act as trustees to perform the trust; and
(d) any assurance or thing requisite for vesting the trust
property, or any part thereof, jointly in the persons who
are the trustees shall be executed or done.
(3) Where a trustee has been removed under a power contained in the
instrument creating the trust, a new trustee or new trustees may
be appointed in the place of the trustee who is removed, as if he
were dead, or, in the case of a corporation, as if the corporation
had been dissolved, and the provisions of this section shall apply
accordingly.
(4) The power of appointment given by subsection (1) or any similar
previous enactment to the personal representative of the last
surviving or continuing trustee is and shall be deemed always to
have been exercisable by the executor for the time being, whether
original or by representation, of that surviving or continuing
trustee who has proved the will of his testator or by the
administrator for the time being of that trustee without the
concurrence of any executor who has renounced or has not
proved; but a sole or last surviving executor intending to
renounce has, or all the executors where they all intend to
renounce have, and shall be deemed always to have had power, at
any time before renouncing probate, to exercise the power of
appointment given by this section or by any similar previous
enactment if willing to act for that purpose and without thereby
accepting the office of executor.
(5) Where, in the case of any trust, there are not more than 3 trustees
(none of them being a trustee corporation), then —
(a) the person or persons nominated for the purpose of
appointing new trustees by the instrument (if any)
creating the trust; or
(b) where there is no person nominated for the purpose of
appointing new trustees by the instrument creating the
trust, or no such person able and willing to act, then the
trustee or trustees for the time being,
may, by writing, appoint a person or persons (whether or not
being the person or persons exercising the power) to be an

additional trustee or additional trustees, but it shall not be
obligatory to appoint any additional trustee unless the instrument
(if any) creating the trust, or any statutory enactment, provides to
the contrary; but on any appointment of additional trustees under
this subsection the number of trustees shall not be increased
beyond 4, where 4 or fewer trustees were originally appointed, or
beyond the original number of trustees, where more than 4 were
originally appointed.
(6) Every new trustee appointed under this section has the same
powers, authorities, and discretions and may in every respect act,
as if he had originally been appointed a trustee by the instrument
(if any) creating the trust, both before and after all the trust
property becomes by law or by assurance or otherwise vested in
him.
(7) The provisions of this section that are brought into effect by the
circumstance that a person nominated trustee (whether sole or
otherwise) in a will is dead are brought into effect whether the
death of that person occurred before or after the death of the
testator; and the provisions relative to a continuing trustee relate
also to a refusing or retiring trustee, if willing to act in the
execution of the provisions of this section.
(8) The provisions of this section relating to a person nominated for
the purpose of appointing new trustees apply whether the
appointment is made in a case specified in this section or in a case
specified in the instrument (if any) creating the trust, but where a
new trustee is appointed under this section in a case specified in
that instrument, the appointment shall be subject to the terms
applicable to an appointment in that case under the provisions of
that instrument.
(9) In this section, the term trustee does not include a personal
representative as such.
8. New trustee, protection for people dealing with in good faith
(1) Where any instrument appointing a new trustee contains a
statement as to how a vacancy in the office of trustee occurred,
that statement is conclusive evidence, in favour of a subsequent
purchaser in good faith, or the circumstances under which the
vacancy occurred.
(2) Any appointment of a new trustee depending on such a statement
as is mentioned in subsection (1) and any vesting declaration,
express or implied, consequent on that appointment, in favour of
any subsequent purchaser in good faith, is valid.
(3) The protection afforded to a purchaser by this section extends to

the Commissioner of Titles, Registrar of Titles or other person
registering or certifying title.
(4) This section applies to instruments of appointment signed either
before or after the commencement of this Act.
9. Trustee may retire without replacement in some cases
(1) This section applies where a trustee declares by writing that he is
desirous of being discharged from all or any of the trusts reposed
in him, and after his discharge there will be a trustee corporation
or at least 2 individuals to act as trustees to perform the trust from
which that trustee desires to be discharged.
(2) In any case to which this section applies, if the co-trustees and
such other person, if any, as is empowered to appoint trustees
consent by writing to the discharge of the trustee, and to the
vesting in the co-trustees alone of the trust property, the trustee
desirous of being discharged —
(a) shall be deemed to have retired from the trusts from
which he has declared he desires to be discharged; and
(b) subject to subsection (3), shall, by the writing by which
consent is given to his discharge, be discharged from the
trusts under this Act,
without any new trustee being appointed in his place.
(3) Any conveyance requisite for vesting in the continuing trustees
alone the property subject to the trusts from which the retiring
trustee is to be discharged shall be executed or done; and in
respect of any part of the trust property for the vesting of which
in the continuing trustees a conveyance is necessary, the retiring
trustee shall not be discharged until that part is duly conveyed.
(4) This section applies only if, and as far as, a contrary intention is
not expressed in the instrument (if any) creating the trust and has
effect subject to the provisions of that instrument.
10. Trust property, vesting of in new or continuing trustees
(1) Where a new trustee is appointed, the execution of the instrument
of appointment vests, subject to the provisions of this section, the
trust property for which the new trustee is appointed in the
persons who become and are the trustees, as joint tenants for the
purposes of the trust, without any conveyance.
(2) In any case to which section 9 applies, the execution of the
instrument of discharge vests, subject to the provisions of this
section, all the property subject to the trusts from which the
retiring trustee has declared that he is desirous of being
discharged in the continuing trustees alone, as joint tenants for the

purposes of the trust, without any conveyance.
(3) Subsections (1) and (2) do not apply —
(a) to land conveyed by way of mortgage for securing money
subject to the trust, except land conveyed on trust for
securing debentures or debenture stock; or
(b) to any property, including property subject to the
operation of the Transfer of Land Act 1893 , which is
transferable only in books kept by a company or other
body or in manner directed by or under an Act of
Parliament.
(4) In the case of any property referred to in subsection (3), the
execution of the instrument of appointment of a new trustee or of
the instrument of discharge, as the case may be, for the purposes
of the trust vests in the persons who become and are the trustees
or in the continuing trustee, as the case may be, the right to call
for a conveyance of the property and to sue for and recover the
property.
(5) For purposes of registration —
(a) in the case of an instrument of appointment of a new
trustee, the appointor shall be deemed the conveying party
and the conveyance shall be deemed to be made by him
under a power conferred by this Act; and
(b) in the case of an instrument of discharge, the retiring
trustee and any person consenting in such instrument to
his discharge shall be deemed the conveying parties and
the conveyance shall be deemed to be made by them
under a power conferred by this Act.
(6) In this section —
continuing trustees and retiring trustees have the same meaning
as in section 9(3); and
instrument of discharge means an instrument containing the
consent or consents referred to in section 9(2) and executed in a
case to which section 9 applies.
(7) For the purposes of a covenant against assignments, or against
assignment without licence or consent, contained in any lease,
underlease or agreement for a lease or underlease, a vesting under
this section shall be deemed not to be an assignment.
11. Corporation may act as trustee in some cases
(1) Any trustee corporation may be appointed and may lawfully act
as the sole trustee in respect of any trust, notwithstanding that the
instrument creating the trust may provide for or direct the

appointment of 2 or more trustees; and nothing in this subsection
prevents any other corporation from acting as a trustee in
accordance with any authority vested in it in that behalf, whether
by its memorandum of association or otherwise, but a corporation
shall not administer the estate of any deceased person unless
expressly authorised to do so by any Act.
(2) This section does not permit the appointment of a corporation as
trustee if the instrument creating the trust forbids the appointment
of the corporation.
(3) This section extends to any trust or instrument and to any
appointment of trustees, whether created or made before or after
the commencement of this Act.
12. Renouncing probate etc., effect of
(1) Where a person appointed by will both executor and trustee
thereof renounces probate, or after being duly cited or summoned
fails to apply for probate, the renunciation or failure shall be
deemed to be disclaimer of the trust contained in the will.
(2) Where any person appointed by will both executor and trustee
thereof —
(a) renounces probate; or
(b) after being duly cited or summoned fails to apply for
probate; or
(c) dies before probate is granted to him,
and letters of administration with the will annexed are granted to
any other person, the person who obtains the grant shall, by
virtue of the grant and without further appointment, be deemed to
be appointed trustee of the will in the place of the person who
was appointed by the will.
13. Trustee corporation obtaining probate etc., effect of
(1) Where a trustee corporation has, pursuant to the provisions of
any Act, obtained a grant of probate of a will or letters of
administration with the will annexed, upon the authority of any
person or the majority of persons appointed by the will of any
deceased person to be both executor and trustee thereof, then, by
virtue of the grant and without further appointment, the trustee
corporation shall be deemed to be appointed trustee of the will in
the place of the person or persons by whose authority the trustee
corporation applied for the grant.
(2) Where the Court appoints a trustee corporation administrator in
the place of a person who, by the will, was appointed both
executor and trustee thereof, or in the place of a person who has

obtained letters of administration with the will annexed and who
is both administrator and trustee of that will, then the trustee
corporation shall, by virtue of such appointment and without
further appointment, be deemed to be appointed trustee of the will
in the place of that executor or administrator.
(3) Where, pursuant to section 12(4) of the Public Trustee Act 1941 ,
the Court, upon the application of any executor or administrator
being also trustee of the will of the person whose estate he is
administering, by order transfers to the Public Trustee the estate
of the deceased person for administration, then the Public Trustee
shall, by virtue of that order and without further appointment, be
deemed to be appointed trustee of the will in the place of that
executor or administrator.
14. Advisory trustees, appointment and functions of
(1) In the administration of any trust property any trustee may act, to
the extent in this section provided, with an advisory trustee or
advisory trustees.
(2) An advisory trustee or advisory trustees may be appointed in
respect of all or any part of the trust property —
(a) by the testator, settlor or other creator of the trust, in the
instrument creating the trust; or
(b) by order of the Court made on the application of any
beneficiary or trustee or of any person on whose
application the Court would have power to appoint a new
trustee; or
(c) by any person having power to appoint a new trustee.
(3) Where a trustee acts with an advisory trustee or advisory trustees,
the trust property shall be vested in the firstmentioned trustee (in
this section referred to as the responsible trustee ), who shall
have the sole management and administration of the estate and its
trusts as fully and effectually as if he were the sole trustee, and in
any such case —
(a) the responsible trustee may consult the advisory trustees
on any matter relating to the trusts or the estate; and
(b) the advisory trustees may advise the responsible trustee
on any matter relating to the trusts or the estate, but shall
not be trustees in respect of the trust; and
(c) where any advice or direction is tendered or given by the
advisory trustees, the responsible trustee may follow and
act on that advice or direction without being liable for
anything done or omitted by him by reason of his
following that advice or direction; and

(d) where the responsible trustee is of opinion that any advice
or direction of an advisory trustee conflicts with the trusts
or any rule of law, or exposes him to any liability, or is
otherwise objectionable, he may apply to the Court for
directions in the matter, and any decision and order
therein shall be final and shall bind the responsible trustee
and the advisory trustee, and the Court may make such
order as to costs as appears proper; but nothing in this
section makes it necessary for the responsible trustee to
apply to the Court for any such directions; and
(e) where advisory trustees are not unanimous, and tender to
the responsible trustee conflicting advice or directions, the
responsible trustee may apply to the Court for directions
in like manner and with like effect as provided by
paragraph (d).
(4) A person dealing with the responsible trustee in relation to any
trust property shall not be concerned to inquire as to the
concurrence or otherwise of the advisory trustees or be affected
by notice of the fact that the advisory trustees have not concurred.
(5) Subject to the provisions of the instrument (if any) creating the
trust and to any order made by the Court, where remuneration is
payable to the trustee of any trust property, remuneration or
commission may be paid to both the responsible trustee and the
advisory trustees, and subject as aforesaid the amount thereof
shall be —
(a) as regards the responsible trustee, where the responsible
trustee is the Public Trustee, as prescribed under the
Public Trustee Act 1941 ; and
(b) in any other case, as may be determined by the
responsible trustee if he is entitled to fix his own
remuneration or by the Court.
15. Custodian trustees, appointment and functions of
(1) Subject to the provisions of this section and to the instrument (if
any) creating the trust, any corporation may be appointed to be
custodian trustee of any trust in any case where, and in the same
manner as, it could be appointed to be trustee.
(2) Subject to the provisions of the instrument (if any) creating the
trust, where a custodian trustee is appointed of any trust —
(a) the trust property shall be vested in the custodian trustee
as if the custodian trustee were the sole trustee, and for
that purpose vesting orders may, where necessary, be
made under this Act; and

(b) the management of the trust property and the exercise of
all powers and discretions exercisable by the trustee under
the trust shall be and remain vested in managing trustees
other than the custodian trustee (in this Act called the
managing trustees ) as fully and effectually as if there
were no custodian trustee; and
(c) the sole function of the custodian trustee shall be to get in
and hold the trust property and invest its funds and
dispose of the assets as the managing trustees in writing
direct, for which purpose the custodian trustee shall
execute all such documents and perform all such acts as
the managing trustees in writing direct; and
(d) for the purposes of paragraph (c), a direction given by the
majority of the managing trustees, where there are more
than one, shall be deemed to be given by all the managing
trustees; and
(e) the custodian trustee shall not be liable for acting on any
direction to which paragraph (c) refers; but if the
custodian trustee is of opinion that any such direction
conflicts with the trusts or the law, or exposes the
custodian trustee to any liability, or is otherwise
objectionable, the custodian trustee may apply to the
Court for directions in the matter; and any order giving
directions shall bind both the custodian trustee and the
managing trustees; and the Court may make such order as
to costs as it thinks proper; and
(f) the custodian trustee shall not be liable for any act or
default on the part of any of the managing trustees; and
(g) all actions and proceedings touching or concerning the
trust property shall be brought or defended in the name of
the custodian trustee at the written direction of the
managing trustees, and the custodian trustee shall not be
liable for the costs thereof apart from any payable out of
the trust property; and
(h) a person dealing with the custodian trustee shall not be
concerned to inquire as to the concurrence or otherwise of
the managing trustees or be affected by notice of the fact
that the managing trustees have not concurred; and
(i) the power of appointing new trustees, when exercisable
by the trustee, shall be exercisable by the managing
trustees alone, but the custodian trustee shall have the
same power as any other trustee of applying to the Court
for the appointment of a new trustee.
(3) On the application of the custodian trustee or of any of the

managing trustees or of any beneficiary and on satisfactory proof
that it is the general wish of the beneficiaries or that on other
grounds it is expedient to terminate the custodian trusteeship, the
Court may make an order for that purpose and may also make
such vesting orders and give such directions as in the
circumstances seem to the Court to be necessary or expedient.
(4) Subject to the provisions of the instrument (if any) creating the
trust and to any order made by the Court, where remuneration or
commission is payable to the trustee of any trust property,
remuneration may be paid to both the custodian trustee and the
managing trustees, and subject as aforesaid the amount thereof
shall be —
(a) as regards the custodian trustee, where the custodian
trustee is the Public Trustee, as prescribed under the
Public Trustee Act 1941 ; and
(b) in any other case, as may be determined by the managing
trustees if they are entitled to fix their own remuneration,
or by the Court.
Part III — Investments
[Heading inserted by No. 1 of 1997 s. 6.] [15A. Deleted by No. 1 of 1997 s. 6.] 16. Application of Part
This Part applies to trusts created before or after the coming into
operation of the Trustees Amendment Act 1997 1.
[Section 16 inserted by No. 1 of 1997 s. 6.] [16A-16D. Deleted by No. 1 of 1997 s. 6.] 17. Trust funds, investment of
A trustee may, unless expressly prohibited by the instrument
creating the trust —
(a) invest trust funds in any form of investment; and
(b) at any time, vary an investment or realize an investment of
trust funds and reinvest money resulting from the
realization in any form of investment.
[Section 17 inserted by No. 1 of 1997 s. 6.] 18. Investment power of trustees, exercise of
(1) Subject to the instrument creating the trust, a trustee shall, in
exercising a power of investment —
(a) if the trustee’s profession, business or employment is or

includes acting as a trustee or investing money on behalf
of other persons, exercise the care, diligence and skill that
a prudent person engaged in that profession, business or
employment would exercise in managing the affairs of
other persons; or
(b) if the trustee is not engaged in such a profession, business
or employment, exercise the care, diligence and skill that a
prudent person would exercise in managing the affairs of
other persons.
(2) A trustee shall exercise a power of investment in accordance with
any provision of the instrument creating the trust that is binding
on the trustee and requires the obtaining of any consent or
approval or compliance with any direction with respect to trust
investments.
(3) Subject to the instrument creating the trust, a trustee must, at least
once in each year, review the performance (individually and as a
whole) of trust investments.
[Section 18 inserted by No. 1 of 1997 s. 6.] 19. Investment power of trustees, rules of law and equity apply
(1) Any rules and principles of law or equity that impose a duty on a
trustee exercising a power of investment including, without
limiting the generality of those duties, rules and principles that
impose —
(a) a duty to exercise the power of a trust in the best interests
of all present and future beneficiaries of the trust; or
(b) a duty to invest trust funds in investments that are not
speculative or hazardous; or
(c) a duty to act impartially towards beneficiaries and
between different classes of beneficiaries; or
(d) a duty to take advice,
continue to apply except to the extent that they are inconsistent
with this or any other Act or the instrument creating the trust.
(2) Any rules and principles of law or equity that relate to a provision
in an instrument creating a trust that purports to exempt, limit the
liability of, or indemnify a trustee in respect of a breach of trust,
continue to apply.
(3) If a trustee is under a duty to take advice, the reasonable costs of
obtaining the advice are payable out of trust funds.
[Section 19 inserted by No. 1 of 1997 s. 6.] 20. Investment by trustee, matters to be considered

(1) Without limiting the matters that a trustee may take into account
when exercising a power of investment, a trustee shall, so far as
they are appropriate to the circumstances of the trust, have regard
to —
(a) the purposes of the trust and the needs and circumstances
of the beneficiaries; and
(b) the desirability of diversifying trust investments; and
(c) the nature of and risk associated with existing trust
investments and other trust property; and
(d) the need to maintain the real value of the capital or income
of the trust; and
(e) the risk of capital or income loss or depreciation; and
(f) the potential for capital appreciation; and
(g) the likely income return and the timing of income return;
and
(h) the length of the term of the proposed investment; and
(i) the probable duration of the trust; and
(j) the liquidity and marketability of the proposed investment
during, and on the determination of, the term of the
proposed investment; and
(k) the aggregate value of the trust estate; and
(l) the effect of the proposed investment in relation to the tax
liability of the trust; and
(m) the likelihood of inflation affecting the value of the
proposed investment or other trust property; and
(n) the costs (including commissions, fees, charges and
duties payable) of making the proposed investment; and
(o) the results of a review of existing trust investments.
(2) A trustee may —
(a) obtain and consider independent and impartial advice
reasonably required for the investment of trust funds or
the management of the investment from a person whom
the trustee reasonably believes to be competent to give the
advice; and
(b) pay out of trust funds the reasonable costs of obtaining
the advice.
[Section 20 inserted by No. 1 of 1997 s. 6.] 21. Company shares etc. held in trust, trustees’ powers as to
(1) If securities of a body corporate are subject to a trust, the trustee
may concur in any scheme or arrangement —

(a) for or arising out of the reconstruction, reduction of
capital or liquidation of, or the issue of shares by, the
body corporate; or
(b) for the sale of all or any part of the property and
undertaking of the body corporate to another body
corporate; or
(c) for the acquisition of securities of the body corporate, or
of control of the body corporate, by another body
corporate; or
(d) for the amalgamation of the body corporate with another
body corporate; or
(e) for the release, modification or variation of rights,
privileges or liabilities attached to the securities, or any of
them,
in the same manner as if the trustee were beneficially entitled to
the securities.
(2) The trustee may accept instead of, or in exchange for, or in
addition to, the securities subject to the trust any securities of any
denomination or description of another body corporate party to
the scheme or arrangement.
(3) If a conditional or preferential right to subscribe for securities in a
body corporate is offered to a trustee in respect of a holding in
that body corporate or another body corporate, the trustee may, as
to all or any of the securities —
(a) exercise the right and apply capital money subject to the
trust in payment of the consideration; or
(b) assign the benefit of the right, or the title to the right, to a
person, including a beneficiary under the trust, for the
best consideration that can be reasonably obtained; or
(c) renounce the right.
(4) A trustee accepting or subscribing for securities under this
section is, for the purposes of any provision of this Part,
exercising a power of investment.
(5) A trustee may retain securities accepted or subscribed for under
this section for any period for which the trustee could properly
have retained the original securities.
(6) The consideration for an assignment made under subsection (3)
(b) shall be held as capital of the trust.
(7) This section applies in relation to securities acquired before or
after the coming into operation of the Trustees Amendment

Act 1997 1 but subject to the instrument creating the trust.
[Section 21 inserted by No. 1 of 1997 s. 6.] 22. Choses in action under RITS system, presumptions as to
(1) A chose in action arising under the RITS system and which
entitles its holder to a security of a particular description (the
underlying security ) is, for the purposes of this Act and the
instrument creating a trust, taken to be the same in all respects as
the underlying security.
(2) The holding or acquisition by a trustee of a chose in action
referred to in subsection (1) shall be regarded as an investment by
the trustee in the underlying security.
(3) It does not matter that the right conferred by the chose in action
referred to in subsection (1) is a right in respect of securities of a
particular description and not in respect of particular securities.
(4) This section applies to a trust created before or after the coming
into operation of the Trustees Amendment Act 1997 1 but applies
only to the extent that the trust instrument creating the trust does
not expressly prohibit its application.
(5) In this section —
RITS system means the Reserve Bank Information and Transfer
System operated by the Reserve Bank of Australia, as operating
from time to time.
[Section 22 inserted by No. 1 of 1997 s. 6.] 23. Calls on shares, trustees’ powers as to
Subject to the instrument creating the trust —
(a) a trustee may apply capital money subject to a trust in
payment of calls on shares subject to the same trust; and
(b) if the trustee is a trustee corporation, it may exercise the
powers conferred by this section despite the shares on
which the calls are made being shares in the trustee
corporation.
[Section 23 inserted by No. 1 of 1997 s. 6.] 24. Residence for beneficiary, power to invest in etc.
(1) Subject to the instrument creating the trust, a trustee may —
(a) invest any trust funds in the purchase of a dwelling-house
for a beneficiary to use as a residence; or
(b) enter into any other agreement or arrangement to secure
for a beneficiary a right to use a dwelling-house as a

residence.
(2) Despite the terms of the instrument creating the trust, a trustee
may, if to do so would not unfairly prejudice the interests of the
other beneficiaries, retain as part of the trust property a
dwelling-house for a beneficiary to use as a residence.
(3) A dwelling-house purchased, retained or otherwise secured for
use by the beneficiary as a residence may be made available to the
beneficiary for that purpose on such terms and conditions
consistent with the trust and the extent of the interest of the
beneficiary as the trustee thinks fit.
(4) The trustee may retain a dwelling-house or any interest or rights
in respect of a dwelling-house acquired under this section after
the use of the dwelling-house by the beneficiary has ceased.
(5) In this section —
dwelling-house includes —
(a) any building or part of a building designed, or converted
or capable of being converted, for use as a residence; and
(b) any amenities or facilities for use in connection with the
use of a dwelling-house.
[Section 24 inserted by No. 1 of 1997 s. 6.] 25. Retained authorised investments, no liability for
A trustee is not liable for breach of trust by reason only of
retaining an investment that has ceased to be —
(a) an investment authorised by the instrument creating the
trust; or
(b) an investment properly made by the trustee exercising a
power of investment; or
(c) an investment made under this Act or a corresponding
previous enactment; or
(d) an investment authorised by any other Act or the general
law.
[Section 25 inserted by No. 1 of 1997 s. 6.] 26. Loans secured against property, trustees’ liability for
(1) If a trustee lends money on the security of a property, the trustee
is not liable for breach of trust by reason only of the proportion
borne by the amount of the loan to the value of the property at the
time when the loan was made if it appears to the Court —
(a) that, in making the loan, the trustee was acting on a report
as to the value of the property made by a person whom

the trustee reasonably believed to be competent to give
such a report and whom the trustee instructed and
employed independently of any owner of the property;
and
(b) that the amount of the loan did not exceed two-thirds of
the value of the property as stated in the report; and
(c) that the loan was made in reliance on the report.
(2) This section applies to transfers of existing securities as well as to
new securities and to investments made before or after the
coming into operation of the Trustees Amendment Act 1997 1.
[Section 26 inserted by No. 1 of 1997 s. 6.] 26A. Improper loans, trustees’ limited liability for
(1) If a trustee improperly advances trust money on a security that
would at the time of the investment have been a proper
investment if the sum advanced had been smaller than the actual
sum advanced, the security shall be taken to be a proper
investment in respect of the smaller sum, and the trustee is only
liable to make good the difference between the sum advanced and
the smaller sum, with interest.
(2) This section applies to investments made before or after the
coming into operation of the Trustees Amendment Act 1997 1.
[Section 26A inserted by No. 1 of 1997 s. 6.] 26B. Breach of trust as to investments, factors to be considered
by Court
In proceedings against a trustee for breach of trust in respect of a
duty under this Part relating to the trustee’s power of investment,
the Court may, when considering the question of the trustee’s
liability, take into account —
(a) the nature and purpose of the trust; and
(b) whether the trustee had regard to the matters set out in
section 20 so far as is appropriate to the circumstances of
the trust; and
(c) whether the trust investments have been made pursuant to
an investment strategy formulated in accordance with the
duty of a trustee under this Part; and
(d) the extent the trustee acted on the independent and
impartial advice of a person competent (or apparently
competent) to give the advice.
[Section 26B inserted by No. 1 of 1997 s. 6.]

26C. Breach of trust as to investments, Court may set off losses
against gains
(1) The Court may, when considering an action for breach of trust
arising out of or in respect of an investment by a trustee where a
loss has been, or is expected to be, sustained by the trust, set off
all or part of the loss resulting from that investment against all or
part of the gain resulting from any other investment whether in
breach of trust or not.
(2) The power of set off conferred by subsection (1) is in addition to
any other power or entitlement to set off all or part of any loss
against any property.
[Section 26C inserted by No. 1 of 1997 s. 6.] 26D. Housing loans, trustees’ liability for
(1) If a trustee lends money on a real security in accordance with the
provisions of this Act, or had made such a loan in accordance
with the provisions of this Act as in force immediately before the
coming into operation of the Trustees Amendment Act 1997 1, the
trustee is not chargeable with breach of trust by reason only of
the proportion borne by the amount of the loan to the value of the
property on which the loan is secured if —
(a) the trustee was not expressly forbidden by the instrument
(if any) creating the trust to lend money on a real security;
and
(b) the loan was a housing loan; and
(c) the loan is secured by a contract of insurance in the
prescribed form entered into with an authorised insurer.
(2) The Minister may by notice published in the Gazette —
(a) declare a corporation that is lawfully carrying on the
business of insuring mortgages in Western Australia to be
an authorised insurer for the purposes of this section; and
(b) revoke a declaration made under paragraph (a).
(3) The Minister may by notice published in the Gazette —
(a) specify terms and conditions subject to which an
authorised insurer is authorised to enter into contracts of
insurance for the purpose of this section; and
(b) vary or revoke any such terms and conditions.
(4) An authorised insurer who fails to comply with any terms or
conditions subject to which it is authorised to enter into contracts
of insurance for the purpose of this section shall be guilty of an
offence.

Penalty: $5 000.
(5) In this section —
authorised insurer means a corporation that has been declared to
be an authorised insurer under subsection (2);
dwelling-house includes —
(a) any building that consists, or any buildings that consist, in
whole or in substantial part, of residential
accommodation, whether constituting a single unit of
accommodation or 2 or more such units; and
(b) any residential accommodation of a kind commonly
known as a flat or home unit; and
(c) appurtenances, outbuildings, fences and permanent
provision for lighting, water supply, drainage and
sewerage provided in connection with the
dwelling-house;
housing loan means a loan —
(a) made for any one or more of the following purposes, that
is to say, of enabling the borrower —
(i) to acquire a prescribed interest in land and
construct, or complete the construction of, a
dwelling-house on the land; or
(ii) to construct a dwelling-house, or complete the
construction of a dwelling-house, on land in
which the borrower has a prescribed interest; or
(iii) to acquire a prescribed interest in land on which
there is a dwelling-house; or
(iv) to alter, improve or extend a dwelling-house
constructed on land in which the borrower has a
prescribed interest; or
(v) to meet expenses in respect of the provision of
improvement of roads, kerbing, guttering or
footpaths in connection with land in which the
borrower has a prescribed interest; or
(vi) to discharge a mortgage, charge or other
encumbrance over land in which the borrower has
a prescribed interest, being land on which a
dwelling-house is being constructed;
and
(b) the repayment of which is secured by a security over the
interest of the borrower in the land,
and, where the lender requires the borrower to meet the cost of
the premium in respect of a contract of insurance entered into in

respect of the loan, includes moneys advanced by the lender to
enable the borrower to meet that cost, being moneys the
repayment of which is secured by a security over the interest of
the borrower in the land;
prescribed interest in land means —
(a) an estate in fee simple; or
(b) an interest as lessee under a lease in perpetuity from the
Crown in right of the Commonwealth or the State of
Western Australia; or
(c) an interest as lessee under a lease for a term of years from
the Crown in right of the Commonwealth or the State of
Western Australia or from the owner of an estate in fee
simple if the authorised insurer is satisfied that the term,
covenants and conditions of the lease give reasonable
security of tenure to the lessee for a substantial period.
[Section 26D inserted by No. 1 of 1997 s. 6.] 26E. Authorised trustee investments, meaning of
Any provision in an instrument (whether or not creating a trust)
that empowers or requires a person to invest money in
investments authorised for the investment of trust funds or
moneys is to be read as if it empowered or required that person to
invest that money according to the provisions of this Part relating
to the investment of trust funds.
[Section 26E inserted by No. 1 of 1997 s. 6.] Part IV — General powers of trustees
27. Property, powers to sell, lease, exchange, etc.
(1) Subject to the provisions of this section, every trustee, in respect
of any property for the time being vested in him, may —
(a) sell the property; or
(b) dispose of the property by way of exchange for other
property in the State of a like nature and a like or better
tenure, or, where the property vested in him consists of an
undivided share, concur in the partition of the property in
which the share is held, and give or take any property by
way of equality of exchange or partition; or
(c) postpone the sale, calling in, and conversion of any
property that he has a duty to sell, whether or not it is of a
wasting, speculative or reversionary nature; but, in the
case of property of a wasting or speculative nature, for no
longer than is reasonably necessary to permit its prudent
realisation; or

(d) let or sublet the property at a reasonable rent for any term
not exceeding one year, or from year to year, or for a
weekly, monthly or other like tenancy or at will; or
(e) grant a lease or sublease of the property for any term not
exceeding —
(i) in the case of a building lease, 30 years; or
(ii) in the case of any other lease (including a mining
lease), 10 years;
to take effect in possession within one year next after the
date of the grant of the lease or sublease at a reasonable
rent, with or without a fine, premium or foregift, any of
which if taken shall be deemed to be part of and an
accretion to the rental, and shall, as between the persons
beneficially entitled to the rental, be considered as
accruing from day to day and be apportioned over the
term of the lease or sublease; or
(f) at any time during the currency of a lease of the property,
reduce the rent or otherwise vary or modify the terms
thereof, or accept, or concur or join with any other person
in accepting, the surrender of any lease.
(2) Any trustee may, on such conditions as he thinks proper, rescind,
cancel, modify or vary any contract or agreement for the sale and
purchase of any land, or agree to do so, or compromise with or
make allowances to any person with whom such a contract or
agreement has been made, or who is the assignee thereof in
respect of any unpaid purchase money secured on mortgage or
otherwise; and without prejudice to the generality of this
subsection, a trustee may, by writing, waive or vary any right
exercisable by him that arises from a failure to comply at or
within the proper time with any term of any agreement for sale,
mortgage, lease, or other contract.
(3) In exercising any power of leasing or subleasing conferred by
this section or by the instrument (if any) creating the trust, a
trustee may —
(a) grant to the lessee or sublessee a right of renewal for one
or more terms, at a rent to be fixed or made ascertainable
in a manner specified in the original lease or the original
sublease, but so that the aggregate duration of the original
and of the renewal terms shall not exceed the maximum
single term that could be granted in the exercise of the
power; or
(b) grant a lease with an optional or compulsory purchasing
clause; or

(c) grant to the lessee or sublessee a right to claim
compensation for improvements made or to be made by
him in, upon or about the property which is leased or
subleased.
(4) Where the property subject to a trust includes land, the trustee
shall exercise the power conferred by this section to sell the land,
if so required in writing by the person or all the persons at that
time beneficially entitled to an interest in possession under the
trust of the land.
(5) Where there is a power (statutory or otherwise) to postpone the
sale of any land or investment that a trustee has a duty to sell by
reason only of a trust or direction for sale, then, subject to any
express direction to the contrary in the instrument (if any)
creating the trust, the trustee shall not be liable in any way merely
for postponing the sale in the exercise of his discretion for an
indefinite and unlimited period, whether or not that period
exceeds the period during which the trust or direction for sale
remains valid; nor shall a purchaser of the land or investment be
concerned in any case with any directions respecting the
postponement of a sale; but nothing in this subsection applies to
any property of a wasting or speculative nature.
[Section 27 amended by No. 1 of 1997 s. 7.] 28. Trust or power to sell property, duration of
(1) Where the instrument creating a trust to sell property or a power
to sell property does not expressly limit the duration of the trust
or power, then, notwithstanding any lapse of time or that all the
beneficiaries are absolutely entitled to the property in fee simple
or full ownership in possession and are not under any disability
the trustee may sell the property; but in all other respects the
authority conferred by this section is subject to any restrictions to
which the trust or power created by the instrument is subject.
(2) A purchaser of any property sold under a trust for sale or a
power to sell, or the Registrar of Titles or other person registering
or certifying title, shall not be concerned to enquire whether the
property was sold under the authority conferred by this section.
(3) Nothing in this section affects a trust for sale or a power to sell
that is for the time being in existence under the instrument
creating the trust or power.
28A. Option to purchase land, trustees’ liability for grant of
(1) Where there is statutory or other power to sell land that is subject
to a trust, a trustee who grants to a person an option to purchase

that land within a period not exceeding 6 months for a price fixed
at the time the option is granted shall not be chargeable with
breach of trust by reason only that the trustee granted that option
if before so doing the trustee received advice from an
independent valuer to the effect that —
(a) the purchase price fixed for the land is reasonable; and
(b) the fee payable for the option is reasonable.
(2) In subsection (1), independent valuer means —
(a) a person who is instructed and employed independently
of the person to whom the option is granted; and
(b) in the case of land in the State, a person who is licensed
under the Land Valuers Licensing Act 1978 ; or
(c) in the case of land in another State or a Territory, a person
who is licensed as a valuer under the law of that State or
Territory or, if there is no such law, a person who is a
Fellow or Associate of the Australian Property Institute
(Inc.).
[Section 28A inserted by No. 84 of 1987 s. 13; amended by
No. 74 of 2003 s. 122.] 29. Rule against perpetuities, application of
(1) The rule of law known as the rule against perpetuities does not
apply and shall be deemed never to have applied so as to render
void —
(a) a trust or power to sell property, where a trust of the
proceeds of sale is valid; or
(b) a trust or power to lease or exchange property, where the
lease or exchange directed or authorised by the trust or
power is ancillary to the carrying out of a valid trust; or
(c) any other power that is ancillary to the carrying out of a
valid trust or the giving effect to a valid disposition of
property; or
(d) any provision for the remuneration of trustees.
(2) This section does not —
(a) render any trustee liable for any acts done prior to the
commencement of this Act for which that trustee would
not have been liable had this section not been enacted; or
(b) enable any person to recover any money distributed or
paid under any trust, if he could not have recovered that
money had this section not been enacted.
30. Property, miscellaneous powers as to

(1) Every trustee, in respect of any property for the time being vested
in him, may —
(a) expend money subject to the same trusts for the repair,
maintenance, upkeep or renovation of the property,
whether or not the work is necessary for the purpose of
the salvage of the property; or
(b) subject to the rules of law applicable in such cases and to
any direction of the Court to the contrary, apportion the
cost of the work mentioned in paragraph (a) between
capital and income or otherwise among the persons
entitled thereto in such manner as he considers equitable,
with power, where the whole or part of the cost of the
work is charged to capital, to recoup capital from
subsequent income, if that course would be equitable
having regard to all the circumstances of the case; or
(c) expend money, subject to the same trusts, in the
improvement or development of the property, but not,
without the consent of the Court, in excess of —
(i) $20 000, or such other amount as the Governor
may by regulation provide, for any one purpose;
or
(ii) $50 000, or such other amount as the Governor
may by regulation provide, for any one purpose if
the expenditure is made upon the advice of a
person whom the trustee reasonably believes to be
competent to give prudent advice concerning the
proposed improvement or development;
or
(d) where the property is land and the land may be sold or let
or leased or otherwise disposed of under any power or
trust vested in the trustee, subdivide the land into blocks
and for that purpose construct and dedicate all such roads,
streets, access ways, service lanes, and footpaths and
make all such reserves, and do all such other things, and
pay all such money, as he thinks necessary or as are
required by, or under, any Act relating to subdivisions; or
(e) contribute out of money subject to the same trusts such
sum as he thinks reasonable towards the construction and
maintenance of such roads, streets, access ways, service
lanes, and footpaths, and such sewerage, water,
electricity, drainage and other works as are in the opinion
of the trustee likely to be beneficial to the property,
notwithstanding that they are intended to be constructed

wholly or in part on land not subject to the same trusts; or
(f) grant easements and profits à prendre and enter into party
wall agreements and agreements that relate to fencing, and
execute all necessary documents to give effect thereto; or
(g) pay rates, taxes, assessments, insurance premiums, and
other outgoings in respect of the property out of money
subject to the same trusts; or
(h) as mortgagor or mortgagee, agree to the renewal,
extension or variation of the mortgage for such period and
on such terms and conditions as he thinks fit; but —
(i) the powers conferred by this paragraph may be
exercised by a trustee as mortgagor for the
purpose of raising additional money on the
security of a mortgage of any property, where the
trustee would have power under section 43 to
raise money by a mortgage of the property, and
not otherwise; and
(ii) nothing in this paragraph authorises a trustee to
advance money other than in accordance with
Part III;
or
(i) make such inquiries, by way of advertisement or
otherwise, as he thinks necessary for the purpose of
ascertaining the next-of-kin or beneficiaries entitled to the
property, and charge the cost of the inquiries and
advertisements against the property; or
(j) where the property includes a life policy and there is no
money or insufficient money available for the payment of
premiums on the policy, surrender the policy for money
or accept instead of the policy a fully paid up policy or
vary the terms of the policy in such manner as the trustee
thinks fit; or
(k) appropriate any part of the property in or towards
satisfaction of any legacy payable thereout, or in or
towards satisfaction of any share of the trust property,
(whether settled, contingent or absolute) to which any
person is entitled, and for that purpose value the whole or
any part of the property in accordance with section 50;
but —
(i) the appropriation shall not be made so as to affect
adversely any specific gift; and
(ii) before any such appropriation is effectual, notice
thereof shall be given to all persons of full age and

full mental capacity who are interested in the
appropriation, and to the parent or guardian of any
infant who is interested in the appropriation, and to
the person having the care and management of the
estate of any person who is not of full mental
capacity, and any such person may, within one
calendar month after receipt of the notice, or, where
the person to whom notice has been given is out of
the jurisdiction, within such extended period as the
Court may, on the application of the trustee or of
any person interested, allow, apply to the Court to
vary the appropriation, and the appropriation shall
be conclusive save as otherwise directed by the
Court;
or
(l) where provision is made in any instrument creating a trust
for payment of an annuity or other periodic payment, and
notwithstanding that the annuity or payment may by the
instrument be charged upon the trust property or upon
any part thereof, set aside and appropriate out of property
available for payment of the annuity and invest a sum
sufficient in the opinion of the trustee at the time of
appropriation to provide out of the income thereof the
amount required to pay the annuity or periodic payment,
and so that after the appropriation shall have been
made, —
(i) the annuitant shall have the same right of recourse
to the capital and income of the appropriated sum
as he would have had against the trust property if
no appropriation had been made; and
(ii) the trustee may forthwith distribute the residue of
the trust property and the income thereof (which
residue and income shall no longer be liable for
the annuity) in accordance with the trusts declared
of and concerning the same;
or
(m) do or omit all acts and things, and execute all instruments
necessary to carry into effect the powers and authorities
given by this Act or by or under the instrument creating
the trust.
(2) Where in the administration of any property employed in the
production of income or from which income is derived a trustee
considers that, in the interests of the persons entitled or who may
become entitled to the capital of the property, it is equitable to set
up a depreciation or replacement fund in respect of the property

or in respect of any asset comprised therein then, notwithstanding
any rule of law to the contrary, it shall be lawful for, but not
obligatory upon, him to do so and to credit from time to time and
accumulate by way of compound interest such part of the income
so produced or derived as he considers equitable, and also the
resulting income therefrom; and in any such case the fund shall
follow the destination of the capital of the property and shall be
subject to all the trusts, powers, and provisions applicable thereto;
with further power to the trustee to apply as he thinks fit the fund
and accumulations of income in or towards the replacement,
repair, maintenance, upkeep or renovation of the property or asset
or in or towards the acquisition by purchase or otherwise of
property or assets of a like nature or property or assets that
otherwise may advantageously be employed in conjunction with
the property in producing or deriving the income as aforesaid.
(3) Nothing in subsection (1)(k) shall be read as requiring a trustee to
give to himself, in some other capacity, notice of an
appropriation; but, where a trustee would, but for this subsection,
be obliged to give to himself such a notice, the appropriation is
not effectual until it has been approved by the Court, on the ex
parte application of the trustee or otherwise.
[Section 30 amended by No. 113 of 1965 s. 8; No. 18 of 1968
s. 3; No. 84 of 1987 s. 14; No. 1 of 1997 s. 8.] 31. Trust or power to sell, ancillary powers to
(1) Where a trust for sale or a power of sale of property is vested in a
trustee, he may sell or concur with any other person in selling all
or any part of the property, either subject to prior encumbrances
or not, and either together or in lots, by public auction, by public
tender or by private contract, subject to any such conditions
respecting title or evidence of title or other matters as the trustee
thinks fit, with power to vary any contract for sale, and to buy in
at any auction, or to rescind any contract for sale and to resell,
without being answerable for any loss.
(2) A trust or power to sell or dispose of land includes a trust or
power to sell or dispose of part thereof, whether the division is
horizontal, vertical or made in any other way; and also includes a
trust or power to sell or dispose of any building, fixture, timber
or other thing affixed to the soil apart and separately from the
land itself.
(3) If a trustee joins with any other person in selling trust property
and other property, the purchase money shall be apportioned in or
before the contract of sale, and a separate receipt shall be given by
the trustee for the apportioned share; but a contravention of this

subsection does not invalidate and shall not be deemed to have
invalidated any instrument intended to affect or evidence the title
to the trust property, and no person being a purchaser, lessee,
mortgagee, or other person who, in good faith and for valuable
consideration, acquires the trust property or an interest in it or a
charge over it, and neither the Registrar of Titles nor any other
person registering or certifying title, shall be affected by notice of,
or be concerned to inquire whether there has been, a
contravention of this subsection.
32. Depreciatory conditions of sale, effect of
(1) A sale by a trustee shall not be impeached by any beneficiary
upon the ground that any of the conditions subject to which the
sale was made may have been unnecessarily depreciatory, unless
it also appears that the consideration for the sale was thereby
rendered inadequate.
(2) A sale by a trustee shall not, after the execution of the conveyance
or transfer, be impeached as against the purchaser, upon the
ground that any of the conditions subject to which the sale was
made may have been unnecessarily depreciatory, unless it appears
that the purchaser was acting in collusion with the trustee at the
time when the contract for sale was made.
(3) A purchaser, upon any sale by a trustee, shall not be at liberty to
make any objection against the title upon any of the grounds in
this section mentioned.
33. Land may be sold and proceeds secured by mortgage
(1) Where a trustee sells land for an estate in fee simple, the trustee
may, where the proceeds are liable to be invested, contract that the
payment of any part, not exceeding two-thirds, of the purchase
money shall be secured by a mortgage of the land sold, with or
without the security of any other property, and the mortgage
shall, if any buildings or other improvements are comprised in the
mortgage, contain a covenant by the mortgagor to keep them
insured against loss or damage by fire to their full insurable
value.
(2) The trustee shall not be bound to obtain any report as to the value
of the land or other property to be comprised in such a mortgage
as is mentioned in subsection (1), or any advice as to the making
of the loan, and shall not be liable for any loss that may be
incurred by reason only of the security being insufficient at the
date of the mortgage.
(3) Where the sale referred to in subsection (1) is made under the
order of the Court, the powers conferred by that subsection shall
apply only if and so far as the Court may by order direct.

34. Property may be sold on terms of deferred payment
(1) A sale of property by a trustee, in exercise of any power vested in
him in that behalf by the instrument creating the trust or by or
under this Act or any other enactment, may be on terms of
deferred payment.
(2) The terms of deferred payment may provide that the purchase
money shall be paid by instalments.
(3) The terms upon which property is sold shall, in addition to such
other provisions as the trustee may think proper, include
provisions giving effect to the following, namely that —
(a) the part of the purchase money to be paid by deposit shall
not be less than the sum which a person acting with
prudence would, if the property were his own, have
accepted in the circumstances in order to sell the property
to the best advantage, and in any case shall not be less
than one-tenth of the purchase money; and
(b) the balance of the purchase money shall be payable by
such instalments and shall bear interest payable
half-yearly or oftener on the amount from time to time
unpaid at such rate as a person acting with prudence
would, if the property were his own, have accepted in the
circumstances in order to sell the property to the best
advantage, and in any case the whole purchase money
shall be payable within a period not exceeding 10 years
from the date of sale; and
(c) if any instalment or interest or part thereof is in arrear and
unpaid for 6 months, or for such less period as may be
specified, the whole of the purchase money shall become
due and payable; and
(d) the purchaser shall maintain and protect the property, and,
in the case of land, keep all buildings (if any) thereon
insured against loss or damage by fire to their full
insurable value.
(4) Notwithstanding that the property has been sold on terms of
deferred payment, the trustee may, at any time after one-third of
the purchase money has been paid, convey the property and take
a mortgage back to secure payment of the balance of the purchase
money and interest, with or without the security of any other
property.
(5) Whether the sale is made under the order of the Court or
otherwise, the Court may make such order as it thinks fit as to the
terms of deferred payment.

[(6) deleted] (7) For the purposes of any consent or direction required by the
instrument (if any) creating the trust or by statute, a trustee selling
property on terms of deferred payment shall be deemed not to be
lending money or investing trust funds.
[Section 34 amended by No. 1 of 1997 s. 9.] 35. Onerous leases or property may be surrendered
(1) Where a leasehold is vested in a trustee and the property is
subject to onerous covenants of such a nature that it would not be
in the interests of the beneficiaries to retain the property, the
trustee may surrender, or concur in surrendering, the lease; and
the trustee shall not be chargeable with breach of trust nor shall
the surrender be impeached by any beneficiary upon the ground
only that the covenants were not of such a nature, if the trustee
has acted bona fide and on the advice of a person whom he
reasonably believed to be a competent valuer instructed and
employed independently of the lessor, whether the valuer carried
on business in the locality where the property is situate or
elsewhere.
(2) Where a freehold is vested in a trustee and the property is of so
onerous a nature that it would not be in the interests of the
beneficiaries to retain the property, if the Crown agrees to accept
the surrender of the freehold, the trustee may surrender, or concur
in surrendering, it to the Crown; and the trustee shall not be
chargeable with breach of trust nor shall the surrender be
impeached by any beneficiary upon the ground only that the
property was not of such a nature, if the trustee has acted
bona fide and on the advice of a person whom he reasonably
believed to be a competent valuer, whether that valuer carried on
business in the locality where the property is situate or elsewhere.
(3) A subsequent purchaser or the Registrar of Titles or other person
registering or certifying title shall not be concerned to inquire
whether a surrender was authorised by this section.
36. Leases may be renewed
(1) A trustee of any leaseholds for lives or years that are renewable
under any covenant or contract or by custom or usual practice
may, if he thinks fit, and shall, if thereto required by any person
having any beneficial interest, present or future or contingent, in
the leaseholds, use his best endeavours to obtain from time to
time a renewed lease of the same hereditaments on the agreed or
reasonable terms, and for that purpose may from time to time
make or concur in making a surrender of the lease for the time

being subsisting, and do all such other acts as are requisite; but
where, by the terms of the instrument (if any) creating the trust,
the person in possession for his life or other limited interest is
entitled to enjoy the same without any obligation to renew, or to
contribute to the expense of renewal, this section does not apply
unless the consent in writing of that person is obtained to the
renewal.
(2) A trustee obtaining a renewal of a lease under the powers
conferred by this section or otherwise may pay or apply capital
money subject to the trust, for the purpose of obtaining the
renewal.
37. Equity of redemption may be purchased instead of
foreclosing
A trustee may, in lieu of proceeding to foreclosure, purchase the
equity of redemption of land in the State the subject of a mortgage
held by the trustee under which default has been made where the
moneys expended in that purchase are subject to the same trusts
as the mortgage debt; but in no case shall the moneys paid by
way of consideration for such purchase exceed 5% of the amount
due under the mortgage.
38. Property may be sold after right of redemption barred
(1) Where any property is vested in a trustee by way of security, and
the property becomes discharged from the right of redemption
whether by virtue of the Limitation Act 2005 or of any order for
foreclosure or purchase of the equity of redemption or otherwise,
the trustee shall hold the property on trust for sale.
(2) The net proceeds of sale of any property to which this section
relates shall, after payment of costs and expenses, be applied in
like manner as the mortgage debt, if received, would have been
applicable, and the income of the property until sale shall be
applied in like manner as the interest, if received, would have
been applicable.
(3) This section does not affect the right of any person to require that,
instead of a sale, the property shall be conveyed to him or in
accordance with his directions.
[Section 38 amended by No. 20 of 2005 s. 23.] 39. Equity of redemption may be released in discharge of
mortgage debt
(1) Where an equity of redemption is vested in a trustee and the
mortgaged property is not of greater value than the amount of the
mortgage debt, the trustee may release the equity of redemption to

the mortgagee in discharge of the mortgage debt or part thereof;
and the trustee shall not be chargeable with breach of trust nor
shall the release be impeached by any beneficiary upon the
ground only that the mortgaged property was of greater value
than the amount of the mortgage debt or the part thereof
discharged, if the trustee has acted bona fide and on the advice of
a person whom he reasonably believed to be a competent valuer
instructed and employed independently of the mortgagee, whether
the valuer carried on business in the locality where the property is
situate or elsewhere.
(2) A subsequent purchaser or the Registrar of Titles or other person
registering or certifying title shall not be concerned to inquire
whether a release was authorised by this section.
40. Trustee as mortgagee in possession, application of income by
(1) Where a trustee is entitled, whether severally or as a
co-mortgagee, to a debt secured by a mortgage of land in trust as
to the whole or part of that debt for persons by way of
succession, and the trustee is at the date of commencement of this
Act, or at any time after that date becomes, mortgagee in
possession of the mortgaged land, the trustee shall apply the net
income of the mortgaged land received by him after that date or
after he becomes mortgagee in possession —
(a) in discharge of all rents, taxes, rates, and outgoings
affecting the mortgaged land; and
(b) in payment of the premiums on any insurances properly
payable on the mortgaged property; and
(c) in keeping down all annual sums or other payments and
the interest on all principal sums having priority to the
mortgage in right whereof he is in possession;
and subject to the rights of the mortgagor, the trustee shall hold
the residue of the income so received by him upon the trusts to
which the mortgage debt is subject.
(2) The rents, taxes, outgoings, premiums, costs, annual sums,
payments and interest to be discharged, kept down and paid,
pursuant to subsection (1), shall be those accruing due —
(a) after the date of the commencement of this Act, where the
trustee is in possession of the mortgaged land at that date;
and
(b) after the date of possession by the trustee, where the entry
into possession is after the date of commencement of this
Act;
but if at the date of commencement of this Act, or on the date of

possession by the trustee, as the case may be, any rents, taxes,
rates, outgoings, annual sums, payments, interest or premiums
mentioned in subsection (1)(a), (b) or (c) were or are due and
unpaid, and such of those rents, taxes, rates, outgoings, annual
sums, payments and premiums as are periodic payments were
payable wholly or in part in respect of any period subsequent to
the date of commencement or to the date of possession, as the
case may be, then the lastmentioned rents, taxes, rates, outgoings,
annual sums, payments, and premiums shall, for the purpose of
this section, be considered as accruing from day to day and shall
be apportionable in respect of time accordingly.
(3) On the recovery of the moneys secured by the mortgage, whether
in whole or in part, and whether by repayment or on realisation of
the security or otherwise, such part of the income applied by the
trustee in the payments specified in subsection (1)(a), (b) and (c)
as would otherwise have been payable as interest to the person
entitled to the interest of the mortgage debt shall, as between the
persons respectively entitled to the income and corpus of the
mortgage debt, be deemed to be arrears of interest and the amount
received by the trustee shall be apportioned accordingly.
(4) Notwithstanding anything in this section contained, the trustee
may, if in the administration of the trust he thinks it necessary so
to do, apply income of the mortgaged property received by him
after the date of commencement of this Act in payment of any
rents, taxes, rates, outgoings, premiums, costs, annual sums,
payments, and interest affecting the mortgaged land other than
those specified in subsection (2); but the person entitled to the
interest on the mortgage debt shall be entitled to recoupment out
of the capital of the mortgage debt of all payments made by the
trustee under the authority conferred by this subsection.
41. Receipts may be given
(1) The receipt in writing of a trustee for any money, securities or
other personal property or effects payable, transferable or
deliverable to him under any trust or power is a sufficient
discharge to the person paying, transferring or delivering it or
them, and effectually exonerates that person from seeing to the
application, or being answerable for any loss or misapplication,
of the money, securities or other personal property or effects.
(2) This section applies notwithstanding anything to the contrary
contained in the instrument (if any) creating the trust.
42. Property, debts, etc., miscellaneous powers as to
A trustee may, if and as he thinks fit —

(a) accept any property, real or personal, before the time at
which it is made transferable or payable; or
(b) sever and apportion any blended trust funds or property;
or
(c) pay or allow any debt or claim on any evidence that he
thinks sufficient; or
(d) accept any composition or any security, real or personal,
for any debt or for any property, real or personal, claimed;
or
(e) allow any time for payment of any debt; or
(f) compromise, compound, abandon, submit to arbitration or
otherwise settle any debt, account, claim or thing
whatever relating to the trust or to the trust property;
and for any of those purposes may enter into, give, execute, and
do such agreements, instruments of composition or arrangement,
releases, and other things as to him seem expedient, without
being responsible for any loss occasioned by any act or thing so
done by him in good faith.
43. Capital money may be raised by sale, mortgage, etc. of trust
property
(1) Where a trustee is authorised by the instrument (if any) creating
the trust or by or under this Act or any other Act or by law to pay
or apply capital money subject to the trust for any purpose or in
any manner, he has and shall be deemed always to have had
power to raise the money required by sale, conversion, calling in
or mortgage of all or any part of the trust property for the time
being in possession; and where a trustee, in the exercise of his
powers in that behalf, purchases any property for the trust, he has
and shall be deemed always to have had power to make the
purchase on terms of deferred payment or on mortgage of that
property.
(2) This section applies notwithstanding anything to the contrary
contained in the instrument (if any) creating the trust.
44. Purchasers etc. dealing with trustees, protection for
A purchaser or mortgagee, paying or advancing money on a sale
or mortgage purporting to be made under any trust or power
(statutory or otherwise) vested in a trustee, shall not be concerned
to see that the money is wanted, or that no more than is wanted is
raised, or otherwise as to the application thereof.
45. Trustees dying, devolution of powers or trusts

(1) Where a power or trust is given to, or imposed on, 2 or more
trustees jointly, then, unless the contrary is expressed in the
instrument (if any) creating the power or trust, the power or trust
may be exercised or performed for the time being by the
survivors or survivor of them.
(2) Until the appointment of a new trustee, the personal
representative for the time being of a sole trustee or (where there
were 2 or more trustees) of the last surviving or continuing
trustee shall be capable of exercising or performing any power or
trust that was given to, or capable of being exercised by, the sole
or last surviving or continuing trustee, or other trustees for the
time being of the trust; but for the purposes of this subsection the
term trustee does not include a personal representative as such.
(3) This section does not authorise the exercise or performance of
any power or trust by an executor who has renounced or has not
proved.
46. Insuring trust property
(1) A trustee may insure against loss or damage, whether by fire or
otherwise, any insurable property to any amount, including the
amount of any insurance already on foot, not exceeding the full
replacement value of the property; and may also insure against
any risk or liability against which it would be prudent for a
person to insure, if he were acting for himself; and may pay the
premiums for the insurance out of the income of the property
concerned or out of the income of any other property subject to
the same trusts, without obtaining the consent of any person who
may be entitled wholly or partly to that income.
(2) A trustee may recover the amounts of any premiums paid in
respect of any insurance properly effected from the life tenant or
other person entitled to or in receipt of the rents and profits of the
property concerned.
(3) Nothing in this section imposes any obligation on a trustee to
insure or to insure for any particular value or sum.
47. Insurance money, application of
(1) Money receivable by a trustee or any beneficiary under a policy
of insurance against the loss of, or damage to, any property
subject to a trust, whether by fire or otherwise, (in this section
called insurance money ) shall, where the policy has been kept up
under any trust in that behalf or under any power (statutory or
otherwise) or in performance of any covenant or of any
obligation (statutory or otherwise) or by a tenant for life
impeachable for waste, be capital for the purposes of the trust,

except so far as it would be regarded as income under any rule of
law.
(2) If any insurance money is receivable by any person other than the
trustee of the trust, that person shall use his best endeavours to
recover and receive the money, and shall pay the net residue
thereof, after discharging any costs of recovering and receiving it,
to the trustee of the trust, or, if there is no trustee capable of
giving a discharge therefor, into Court.
(3) Any insurance money, receivable in respect of property held
upon trust for sale, shall be held upon the trusts and subject to the
powers and provisions applicable to money arising by a sale
under the trust; and, in any other case, shall be held upon trusts
corresponding as nearly as may be with the trusts affecting the
property in respect of which it was payable.
(4) Any insurance money, or any part thereof, may be applied by the
trustee, or, if in Court, under the direction of the Court, in
rebuilding, reinstating, replacing or repairing the property lost or
damaged; but any such application by the trustee shall be subject
to the consent of any person whose consent is required by the
instrument (if any) creating the trust to the investment of money
subject to the trust.
(5) Nothing in this section affects the right of any person to require
any insurance money or any part thereof to be applied in
rebuilding, reinstating or repairing the property lost or damaged,
or the rights of any mortgagee, lessor or lessee, whether under
any statute or otherwise.
(6) This section applies to policies effected either before or after the
commencement of this Act, but only to money received after that
commencement.
48. Trust’s documents may be put in safe custody
A trustee may deposit any document held by him relating to the
trust, or to the trust property, with any bank or corporation whose
business includes the undertaking of the safe custody of
documents, and any sum payable in respect of any such deposit
shall be paid out of the income of the trust property, and so far as
there is no available income out of the capital of the trust
property.
[Section 48 amended by No. 1 of 1997 s. 10.] 49. Reversionary interests, powers as to
(1) Where trust property includes any share or interest in property
not vested in the trustee, or the proceeds of sale of any such

property, or any other thing in action, the trustee, on its or their
falling into possession or becoming payable or transferable,
may —
(a) agree or ascertain the amount or value thereof or any part
thereof in such manner as he thinks fit; and
(b) accept in or towards satisfaction thereof, at the market or
current value, or upon any valuation or estimate of value
that he may think fit, any investments in which trust funds
may be invested under this Act; and
(c) allow any deductions for duties, costs, charges, and
expenses that he thinks proper or reasonable; and
(d) execute any release in respect thereof, so as effectually to
discharge all accountable parties from all liability in
respect of any matter coming within the scope of the
release,
without being responsible for any loss occasioned by any act or
thing so done by him in good faith.
(2) The trustee shall not be under any obligation and shall not be
chargeable with any breach of trust by reason of any
omission —
(a) to give any notice in respect of, or apply for any charging
or other like order upon, any securities or other property
out of or in which the share or interest or other thing in
action mentioned in subsection (1) is derived, payable or
charged; or
(b) to take any proceedings on account of any act, default or
neglect on the part of the persons in whom the securities
or other property mentioned in paragraph (a) or any of
them or any part of them are for the time being, or had at
any time been, vested,
unless and until required in writing so to do by some person, or
the guardian of some person, beneficially interested under the
trust, and unless also due provision is made to his satisfaction for
payment of the costs of any proceedings required to be taken.
(3) Nothing in subsection (2) relieves the trustee of the obligation to
get in and obtain payment or transfer of the share or interest or
other thing in action upon its falling into possession.
[Section 49 amended by No. 1 of 1997 s. 11.] 50. Valuation of trust property, powers as to
(1) A trustee may, for the purpose of giving effect to the trust, or any
of the provisions of the instrument (if any) creating the trust or of

this Act or any other Act, from time to time ascertain and fix the
value of any trust property, or of any property that he is
authorised to purchase or otherwise acquire, in such manner as he
thinks proper; and where the trustee is not personally qualified to
ascertain the value of any property he shall consult a duly
qualified person (whether employed by him or not) as to that
value; but the trustee shall not be bound to accept any valuation
made by any person whom the trustee may consult.
(2) Any valuation made by the trustee in good faith under this section
is binding on all persons beneficially interested under the trust.
51. Trust’s accounts, audit of
(1) A trustee may, in his absolute discretion, from time to time, cause
the accounts of the trust property to be examined or audited by a
person who publicly carries on the business of an accountant, and
shall for that purpose produce such vouchers and give such
information to that person as he may require.
(2) The costs of the examination or audit, including the fee of the
person making the examination or audit, shall be charged against
the capital or income of the trust property, or partly in one way
and partly in the other, as the trustee may in his absolute
discretion think fit, but, in default of any direction by the trustee
to the contrary in any special case, costs attributable to capital
shall be borne by capital and those attributable to income by
income.
(3) Where the trustee, or one of the trustees, is the Public Trustee or
an incorporated company, nothing in this section authorises,
except in the case of a business forming part of the trust property,
any costs or fee to be paid out of, or borne by, the capital or
income of the trust property, unless the Court approves of the
costs or fee being so paid out or borne.
52. Co-owners, power to act in conjunction with
Where an undivided share in any property is subject to a trust, the
trustee may (without prejudice to any trust or power in relation to
the entirety of the property) execute or exercise any trust or
power vested in him in relation to that share in conjunction with
the persons entitled to, or having power in that behalf over, the
other share or shares, and notwithstanding that the trustee or any
one or more of several trustees may be entitled to or interested in
any such share, either in his or their own right or in a fiduciary
capacity.
53. Agents, attorneys, etc., power to employ

(1) A trustee may, instead of acting personally, employ and pay an
agent, whether a solicitor, accountant, bank, trustee corporation,
stockbroker or other person, to transact any business or do any
act required to be transacted or done in the execution of the trust
or the administration of the trust property, including the receipt
and payment of money, and the keeping and audit of trust
accounts, and shall be entitled to be allowed and paid all charges
and expenses so incurred, and shall not be responsible for the
default of any such agent employed in good faith and without
negligence.
(2) A trustee may appoint any person to act as his agent or attorney
for the purpose of selling, converting, collecting, getting in, and
executing and perfecting assurances of, or managing or
cultivating, or otherwise administering any property real or
personal, movable or immovable, subject to the trust in any place
outside the State, or executing or exercising any discretion or
trust or power vested in him in relation to any such property, with
such ancillary powers, and with and subject to such provisions
and restrictions, as he may think fit, including a power to appoint
substitutes, and shall not, by reason only of his having made any
such appointment, be responsible for any loss arising thereby.
(3) Without limiting the generality of the powers conferred by
subsections (1) and (2), a trustee may —
(a) appoint a solicitor to be his agent to receive and give a
discharge for any money or valuable consideration or
property receivable by the trustee under the trust, by
permitting the solicitor to have the custody of, and to
produce, a deed or instrument having in the body thereof
or endorsed thereon a receipt for the money or valuable
consideration or property, the deed or instrument being
executed, or the endorsed receipt being signed, by the
person entitled to give a receipt for that consideration; or
(b) appoint a bank or solicitor to be his agent to receive and
give a discharge for any money payable to the trustee
under or by virtue of a policy of insurance, by permitting
the bank or solicitor to have the custody of and to produce
the policy of insurance with a receipt signed by the
trustee,
and the production, by the solicitor, of any such deed or
instrument as is mentioned in paragraph (a) shall have the same
validity and effect as if the person appointing the solicitor had not
been a trustee.
(4) A trustee shall not be chargeable with a breach of trust, by reason
only of his having made, or concurred in making, any

appointment such as is mentioned in subsection (3); but nothing
in that subsection exempts a trustee from any liability that he
would have incurred if this Act and any enactment replaced by
this Act had not been passed, where he permits any money,
valuable consideration or property therein mentioned to remain in
the hands or under the control of the bank or solicitor for a longer
period than is reasonably necessary to enable the bank or
solicitor, as the case may be, to pay or transfer it to the trustee.
(5) Subsections (3) and (4) apply whether the money or valuable
consideration or property was or is received before or after the
commencement of this Act.
54. Delegation of trustees’ powers during absence from State or
incapacity
(1) A trustee who for the time being is out of the State or is about to
depart therefrom, or is a member of Her Majesty’s forces, or who
is, or may be about to become, by reason of physical infirmity,
temporarily incapable of performing all his duties as a trustee
may, subject to the provisions of this section, but notwithstanding
any rule of law or equity to the contrary, by power of attorney
executed as a deed, delegate to any person the execution or
exercise during his absence from the State or during his
incapacity, as the case may be, of all or any trusts, powers,
authorities, and discretions vested in him as such trustee, whether
alone or jointly with any other person or persons; but a person
being the only other co-trustee and not being a trustee corporation
shall not be appointed to be an attorney under this subsection.
(2) Notwithstanding the power to delegate conferred by
subsection (1), a trustee may not so delegate unless his
co-trustees or co-trustee (if any) and such other person as is
empowered by the instrument (if any) creating the trust to appoint
trustees, consent by the same or other deed to the delegation.
(3) Where any delegation has under this section been duly made to
and accepted by any person and is for the time being in operation,
that person has, within the scope of the delegation, the same
trusts, powers, authorities, discretions, liabilities, and
responsibilities (except the power of delegation conferred by this
section) as he would have if he were then the trustee.
(4) In any proceedings brought by any person beneficially interested
under the trust against the donor of a power of attorney given
under this section, in respect of any act or default of the donee of
the power, it is a defence for the donor to prove that the donee
was appointed by him in good faith and without negligence.
(5) All jurisdictions and powers of any Court apply to the donee of a

power of attorney given under this section in the same manner, so
far as respects the execution of the trust or the administration of
the estate to which the power of attorney relates, as if the donee
were acting in relation to the trust or estate in the same capacity as
the donor of the power.
(6) A power of attorney given under this section does not come into
operation unless and until the donor is out of the State or is
incapable of performing all his duties as a trustee, and is revoked
by his return or by his recovery of that capacity, as the case may
be.
(7) In favour of any person dealing with the donee of a power of
attorney given under this section, any act done or instrument
executed by the donee is, notwithstanding that the power has
never come into operation or has been revoked, whether by the
act of the donor of the power or by operation of law, as valid and
effectual as if the power had come into operation and remained
unrevoked at the time when the act was done or the instrument
executed, unless that person had at that time actual notice that the
power had never come into operation or of the revocation of the
power.
(8) In favour of any person dealing with the donee of a power of
attorney given under this section, any act done or instrument
executed by the donee is, notwithstanding that any consents to the
delegation that are required by subsection (2) have not been
given, as valid and effectual as if those consents had been
properly given, unless that person had at the time when the act
was done or the instrument was executed actual notice that those
consents had not been given.
(9) A statutory declaration by the donee of a power of attorney given
under this section relating to any trust or estate that the power has
come into operation, or that in any transaction the donee is acting
in the execution of the trust or the administration of the estate, is,
in favour of a person dealing with the donee of the power,
conclusive evidence of that fact.
(10) The fact that it appears from any power of attorney given under
this section, or from any evidence required for the purposes of
any power of attorney or otherwise, that in any transaction the
donee of the power is acting in the execution of a trust shall not
affect with notice of the trust any person dealing in good faith
with the donee.
(11) Where it is intended that the donee of a power of attorney given
under this section shall be entitled to transfer, or otherwise deal
with, land under the operation of the Transfer of Land Act 1893 ,
the power of attorney shall be in the form, and executed and

attested in the manner, prescribed by Part VI of that Act.
55. Business, trade, etc. of deceased, power to carry on
(1) Subject to the provisions of any other Act, if at the time of his
death any person is engaged (whether alone or in partnership) in
carrying on a business, trade or occupation, it shall be lawful for
his trustee to continue to carry on that business, trade or
occupation, in the same manner, for any one or more of the
following periods, namely —
(a) 2 years from the death of that person; or
(b) such period as may be necessary or desirable for the
winding up of the business; or
(c) such further period or periods as the Court may approve.
(2) In exercise of the powers conferred by this section or by the
instrument creating the trust, a trustee may —
(a) employ any part of the deceased’s estate that is subject to
the same trusts; and
(b) from time to time increase or diminish the part of the
estate employed as provided by paragraph (a); and
(c) purchase stock, machinery, implements, and chattels for
the purpose of the business mentioned in subsection (1);
and
(d) employ such managers, agents, servants, clerks, workmen
and others as he thinks fit; and
(e) at any time enter into a partnership agreement to take the
place of any partnership agreement subsisting
immediately before the death of the deceased or at any
time thereafter and notwithstanding that the trustee was a
partner of the deceased in his own right; and
(f) enter into share-farming agreements.
(3) Application to the Court for leave to carry on a business may be
made by the trustee or any person beneficially interested in the
estate at any time, whether or not any previous authority to carry
on the business has expired; and the Court may make such an
order, or may order that the business be not carried on, or be
carried on subject to conditions, or may make such other order as,
in the circumstances, it thinks fit.
(4) Nothing in this section affects any other authority to do the acts
thereby authorised to be done.
(5) Where a trustee is in any manner interested or concerned in a
trade or business, he may make such subscriptions as it would be
prudent for him to make, if he were acting for himself, out of the

income of the assets affected, to any fund created for objects or
purposes in support of any trade or business of a like nature and
subscribed to by other persons engaged in a like trade or
business.
56. Business, power to convert into, or sell to, a company
(1) A trustee may at any time, at the expense of the trust property,
convert or join in converting any business into a company limited
by shares in such manner as he thinks fit; and may, at the like
expense, promote and assist in promoting a company for taking
over the business; and may sell or transfer the business and the
capital and assets and goodwill thereof, or any part thereof, to the
company, or to any company having for its objects the purchase
of such a business, in consideration, in either case, wholly or in
part of ordinary or preference shares wholly or partially paid up
of any such company, or wholly or in part of debentures,
debenture stock, or bonds of any such company, and as to the
balance (if any) in cash payable immediately, or by any
instalments with or without security.
(2) A trustee may retain as an investment of the trust any shares,
debentures, debenture stock or bonds received by him in
consequence of the exercise by him of any power conferred by
subsection (1).
[Section 56 amended by No. 1 of 1997 s. 12.] 57. Trustee may sue himself in a different capacity
Notwithstanding any rule of law or practice to the contrary, a
trustee of any property in that capacity may sue, and be sued by,
himself in any other capacity whatsoever, including his personal
capacity; but in every such case the trustee shall obtain the
directions of the Court in which the proceedings are taken, as to
the manner in which the opposing interests are to be represented.
Part V — Maintenance, advancement and
protective trusts
58. Infant beneficiary, application of income until 18
(1) Where any property is held by a trustee in trust for any person for
any interest whatsoever, whether vested or contingent, then,
subject to any prior interests or charges affecting that property —
(a) during the infancy of that person, if his interest so long
continues, the trustee may, at his sole discretion, pay to
his parent or guardian (if any) or otherwise apply for or
towards his maintenance, education (including past
maintenance or education) or his advancement or benefit,
the whole or such part, if any, of the income of that

property as may, in all the circumstances, be reasonable,
whether or not there is —
(i) any other fund applicable to the same purpose; or
(ii) any person bound by law to provide for his
maintenance, education, advancement or benefit;
and
(b) if the person on attaining the age of 18 years has not a
vested interest in that income, the trustee shall thenceforth
pay the income of that property and of any accretion
thereto, under subsection (2), to him until he either attains
a vested interest therein or dies, or until failure of his
interest;
but, in deciding whether the whole or any part of the income of
the property is during a minority to be paid or applied for the
purposes in this subsection mentioned, the trustee shall have
regard to the age of the infant and his requirements and,
generally, to the circumstances of the case, and in particular to
what other income (if any) is applicable for the same purposes;
and where the trustee has notice that the income of more than one
fund is applicable for those purposes, then, so far as practicable,
unless the entire income of the funds is paid or applied for those
purposes or the Court otherwise directs, a proportionate part only
of the income of each fund shall be so paid or applied.
(2) During the infancy of any such person as is mentioned in
subsection (1), if his interest so long continues, the trustee shall
accumulate all the residue of that income in the way of compound
interest by investing it and the resulting income thereof from time
to time in investments in which trust funds may be invested under
this Act, and shall hold those accumulations —
(a) if the person —
(i) attains the age of 18 years, or marries under that age,
and his interest in the income during his infancy or
until his marriage is a vested interest; or
(ii) on attaining the age of 18 years or on marriage
under that age becomes entitled to the property
from which the income arose in fee simple,
absolute or determinable, or absolutely, or for an
entailed interest,
in trust for that person absolutely, but without prejudice to
any provisions with respect thereto contained in any
settlement by him made under any statutory power during
his infancy, and so that the receipt of that person after
marriage, and though still an infant, shall be a good
discharge; and

(b) in any other case, notwithstanding that the person had a
vested interest in the income, as an accretion to the capital
of the property from which the accumulations arose and
as one fund with that capital for all purposes;
but the trustee may, at any time during the infancy of that person
if his interest so long continues, apply those accumulations, or
any part thereof, as if they were income arising in the then current
year.
(3) This section applies in the case of a contingent interest, only if the
limitation or trust carries the intermediate income of the property
held in trust, but it applies to a future or contingent legacy by the
parent of, or a person standing in loco parentis to, the legatee, if
and for such period as, under the general law, the legacy carries
interest for the maintenance of the legatee, and in the latter case
the rate of interest shall (if the income available is sufficient and
subject to any rules of Court to the contrary) be 5% per annum;
and where in the case of a contingent interest the limitation or
trust would, but for the operation of a protective trust (whether
created or statutory) carry the intermediate income of the
property, that limitation or trust shall for the purposes of this
subsection be deemed, notwithstanding the protective trust, to
carry the intermediate income.
(4) This section applies to a vested annuity in like manner as if the
annuity were the income of property held by a trustee in trust to
pay the income thereof to the annuitant for the same period for
which the annuity is payable, save that in any case accumulations
made during the infancy of the annuitant shall be held in trust for
the annuitant or his personal representative absolutely.
[Section 58 amended by No. 113 of 1965 s. 8; No. 46 of 1972
s. 6(2); No. 1 of 1997 s. 13.] 59. Capital may be applied for maintenance, education, etc.
A trustee may at any time or times pay or apply any capital
money or other capital asset subject to a trust, for the
maintenance, education (including past maintenance or
education), or the advancement or benefit, in such manner as he
may in his absolute discretion think fit, of any person entitled to
the capital of the trust property or any share thereof, whether
absolutely or contingently on his attaining any specified age or on
the occurrence of any other event, or subject to a gift over on his
death under any specified age or on the occurrence of any other
event, and whether in possession or in remainder or reversion,
and any such payment or application may be made
notwithstanding that the interest of that person is liable to be

defeated by the exercise of a power of appointment or revocation
or by the operation of the rule against perpetuities or to be
diminished by the increase of the class to which he belongs;
but —
(a) the money or asset so paid or applied for the maintenance,
education, advancement or benefit of any person shall not
exceed altogether $2 000 or half of the presumptive or
vested share or interest of that person in the trust
property, whichever is the greater; and
(b) where that person or any other person is or becomes
absolutely and indefeasibly entitled to the share of the
trust property in which that person had a presumptive or
vested interest when the money or asset was so paid or
applied, that money or asset shall be brought into account
as part of that share of the trust property; and
(c) that payment or application shall not be made so as to
prejudice any person entitled to any prior life or other
interest, whether vested or contingent, in the money or
asset paid or applied, unless that person is in existence
and of full age and consents in writing to the payment or
application, or unless the Court, on the application of the
trustee, so orders.
[Section 59 amended by No. 113 of 1965 s. 8.] 60. Advances for maintenance etc. may be made conditionally
(1) Where a power to pay or apply any property for the maintenance,
education, advancement or benefit of any person or for any one
or more of those purposes is vested in a trustee, the trustee when
exercising the power shall have, and be deemed always to have
had, authority to impose on the person any condition, whether as
to repayment, payment of interest, giving security, or otherwise;
and at any time after imposing any such condition, the trustee
may, either wholly or in part, waive the condition or release any
obligation undertaken or any security given by reason of the
condition.
(2) In determining the amount or value of the property that a trustee,
who has imposed a condition pursuant to subsection (1), may pay
or apply in exercise of his powers in that regard, any money
repaid to the trustee or recovered by him shall be deemed not to
have been so paid or applied by the trustee.
(3) Nothing in this section imposes upon a trustee any obligation to
impose any condition pursuant to subsection (1); and a trustee,
when imposing any condition as to giving security, shall not be
affected by any restrictions upon the investment of trust funds,

whether imposed by this Act or by any rule of law or by the trust
instrument (if any).
(4) A trustee is not liable for any loss which may be incurred in
respect of any money that is paid or applied under this section,
whether the loss arises through failure to take security, through
the security being insufficient, through failure to take action for
its protection, through the release or abandonment of the security
without payment, or from any other cause.
61. Protective trusts, rules as to
(1) Where any income, including an annuity or other periodic income
payment, is directed to be held on protective trusts for the benefit
of any person (in this section called the principal beneficiary ) for
the period of his life or any less period, then during that period
(in this section called the trust period ) that income shall, without
prejudice to any prior interest, be held on trust as by this section
provided.
(2) The income to which this section refers shall be held on trust for
the principal beneficiary during the trust period or until, whether
before or after the termination of any prior interest —
(a) the principal beneficiary does, or attempts to do, or
suffers, any act or thing; or
(b) any event, other than an advance under any statutory or
express power, happens,
whereby, if the income were payable during the trust period to the
principal beneficiary absolutely during that period, he would be
deprived of the right to receive it or any part of it; and, in any of
those cases, as well as on the termination of the trust period,
whichever first happens, this trust of the income shall fail and
determine.
(3) Where the trust, to which subsection (2) refers, fails or
determines during the subsistence of the trust period, then, during
the remainder of that period, the income to which that subsection
refers shall be held upon trust for the application thereof for the
maintenance, education, advancement or benefit of all, or any one
or more exclusively of the other or others, of —
(a) the principal beneficiary and his, or her, spouse or
de facto partner (if any) and his, or her, children or more
remote issue (if any); or
(b) where there is no spouse or de facto partner or issue of
the principal beneficiary in existence, the principal
beneficiary and the persons who would, if he were dead,
be entitled to the trust property or the income thereof or

the annuity fund (if any) or arrears of the annuity,
as the trustee, in his absolute discretion and without being liable
to account for the exercise of that discretion, thinks fit.
(4) This section does not apply to trusts coming into operation before
the commencement of this Act, and has effect subject to any
variation, contained in the instrument creating the trust, of the
trusts declared by subsections (2) and (3).
(5) Nothing in this section operates to validate any trust that would, if
contained in the instrument creating the trust, be liable to be set
aside.
[Section 61 amended by No. 28 of 2003 s. 202.] Part VI — Indemnities and protection of trustees, etc.
62. Leases etc., trustees’ liability under
(1) Where a trustee liable as such for —
(a) any rent, covenant or agreement reserved by, or contained
in, any lease; or
(b) any rent, covenant or agreement payable under, or
contained in, any grant made in consideration of a rent
charge; or
(c) any indemnity given in respect of any rent, covenant or
agreement referred to in either paragraph (a) or (b),
satisfies all liabilities under the lease or grant that may have
accrued and been claimed up to the date of the conveyance
hereinafter in this subsection mentioned, and, where necessary,
sets apart a sufficient fund to answer any future claim that may be
made in respect of any fixed and ascertained sum that the lessee
or grantee agreed to lay out on the property demised or granted,
although the period for laying out that sum may not have arrived,
then, and in any such case, the trustee may convey the property
demised or granted to a purchaser, legatee, devisee or other
person entitled to call for a conveyance thereof; and may
thereafter distribute the trust estate, other than the fund (if any) set
apart under this subsection, to or amongst the persons entitled
thereto, without appropriating any part, or any further part, as the
case may be, of the trust estate to meet any future liability under
the said lease or grant; and notwithstanding that distribution, the
trustee shall not be personally liable in respect of any subsequent
claim under the lease or grant.
(2) For the purposes of this section a trustee shall be deemed to be
liable as such for any liabilities arising from privity of estate that
he may incur under the obligations contained in a lease or grant, if

he is entitled to reimburse himself out of the trust property for all
expenses he may incur in respect of the liabilities.
(3) This section operates without prejudice to the right of the lessor
or grantor, or the persons deriving title under the lessor or
grantor, to follow the trust property or any part thereof or any
property representing that property into the hands of the persons
amongst whom it may have been distributed, and applies
notwithstanding anything to the contrary in the instrument (if
any) creating the trust.
(4) In this section lease includes a sublease and an agreement for a
lease or sublease and any instrument giving any such indemnity
as is mentioned in subsection (1) or varying the liabilities under
the lease; grant applies to a grant whether the rent is created by
limitation, grant, reservation or otherwise, and includes an
agreement for a grant and any instrument giving any such
mentioned indemnity or varying the liabilities under the grant; and
lessee and grantee include persons respectively deriving title
under a lessee or grantee.
63. Deceased estate, advertising for claims against, trustees’
protection
(1) Where a trustee has given notice by advertisement published at
least once in the Government Gazette and in a newspaper
circulating in each locality in which, in the opinion of the trustee,
claims are likely to arise, requiring persons having claims to
which this section applies to send to the trustee, within the time
fixed in the notice, particulars of their claims and warning them of
the consequences of their failure to do so, then, at the expiration
of that time or at any time thereafter, the trustee may administer or
distribute the property or any part thereof to which the notice
relates to or among the persons entitled thereto having regard
only to the claims, whether formal or not, of which the trustee
then has notice; and he shall not, as respects the property so
administered or distributed, be liable to any person of whose
claim he has not had notice at the time of the administration or
distribution.
(2) Nothing in this section affects any remedy that a person may have
under section 65 or any other right or remedy available to him
against any person other than the trustee, including any right that
he may have to follow the property and any money or property
into which it is converted.
(3) The time to be fixed by any notice, published in accordance with
subsection (1), for the sending in of claims, shall be not less than
one month from the date on which the notice is given.

(4) Where the personal representative of a deceased person gives
notice by advertisement in accordance with subsection (1), the
localities specified in that subsection shall include each locality in
which the deceased resided or carried on business at any time
during the year immediately preceding his death.
(5) Notice by advertisement for the purposes of this section shall, so
far as regards the contents of the advertisement, be sufficient if
given in the form in the Second Schedule or in a form to the like
effect.
(6) Where the trustee is in doubt as to what advertisements should be
published under this section, he may apply to the Court for
directions.
(7) Any advertisement published under this section may relate to
more than one estate or trust property.
(8) This section applies notwithstanding anything to the contrary in
the instrument (if any) creating the trust.
(9) Except as provided in subsection (10), this section applies to
claims, whether present or future, certain or contingent, against a
trustee, being claims —
(a) against or in respect of the estate of the deceased person
or the trust property, including (without limiting the
generality of the foregoing) claims that survive or lie
against or in respect of the estate or property under
section 4 of the Law Reform (Miscellaneous Provisions)
Act 1941 ; or
(b) against the trustee personally, by reason of his being
under any liability in respect of which he is entitled to
reimburse himself out of the estate or property that he is
administering.
(10) This section does not apply to —
(a) any claim under the Inheritance (Family and Dependants
Provision) Act 1972 ; or
(b) any claim by a person to be a beneficiary under the will,
or to be entitled on the intestacy, of the deceased person,
or to be beneficially interested under the trust.
[Section 63 amended by No. 57 of 1972 s. 3.] 64. Claims etc., procedure for barring
(1) Where a trustee wishes to reject a claim that has been made, or
that he has reason to believe may be made —
(a) to or against the estate or property that he is

administering; or
(b) against the trustee personally, by reason of his being
under any liability in respect of which he is entitled to
reimburse himself out of the estate or property that he is
administering,
the trustee may serve upon the claimant or the person who may
become a claimant a notice calling upon him, within a period of
3 months from the date of service of the notice, to take legal
proceedings to enforce the claim and also to prosecute the
proceedings with all due diligence.
(2) At the expiration of the period stipulated in a notice served under
subsection (1), the trustee may apply to the Court for an order
under subsection (3), and shall serve a copy of the application on
the person concerned.
(3) Where, on the hearing of an application made under
subsection (2), the person concerned does not satisfy the Court
that he has commenced proceedings and is prosecuting them with
all due diligence, the Court may make an order —
(a) extending the period, or barring the claim, or enabling the
trust property to be dealt with without regard to the claim;
and
(b) imposing such conditions and giving such directions,
including a direction as to the payment of the costs of or
incidental to the application, as the Court thinks fit.
(4) Where a trustee has served any notices under this section in
respect of claims on 2 or more persons, and the period specified
in each of those notices has expired, he may, if he thinks fit,
apply for an order in respect of the claims of those persons by a
single application, and the Court may, on that application, make
an order accordingly.
(5) This section applies to every claim therein mentioned, whether the
claim is or may be made as creditor or next-of-kin or beneficiary
under the trust or otherwise; but it does not apply to any claim
under the Inheritance (Family and Dependants Provision)
Act 1972 , and no order made under this section shall affect any
application for revocation of any grant of Probate or of Letters of
Administration, whether that application is made before or after
the order.
(6) On an application by a trustee under this section, the persons
beneficially entitled to the estate or property need not be made
parties to the proceedings, and an order made by the Court on the
application shall not affect their right to contest the claim of the
trustee to be entitled to indemnify himself out of the estate or

property that he is administering where they were not parties to
the proceedings in which the order was made.
[Section 64 amended by No. 57 of 1972 s. 3.] 65. Deceased estate, claims made after distribution of, tracing,
following assets
(1) This section applies where a trustee has distributed any assets
forming part of the estate of a deceased person or subject to a
trust, and there is nothing in any Act to prevent the distribution
from being disturbed.
(2) Where this section applies, the Court may make an order on a
claim, being —
(a) an application under the Inheritance (Family and
Dependants Provision) Act 1972 ; or
(b) a claim to which section 63 applies; or
(c) a claim by a person to be a beneficiary under the will, or
to be entitled on the intestacy, of the deceased person, or
to be beneficially interested under the trust;
any of which application or claims are, hereinafter in this section,
called the claim .
(3) An order under subsection (2) may provide that —
(a) any person to whom any assets, to which the section
applies, were distributed, or his personal representative,
shall pay to the person making the claim or to the trustee a
sum not exceeding the value of those assets; or
(b) any person, who has received, otherwise than in good
faith and for valuable consideration, any interest in any
assets, to which this section applies, from the person to
whom they were distributed or his personal
representative, shall pay to the person making the claim or
to the trustee a sum not exceeding the value of that
interest;
and for the purpose of giving effect to that order the Court may
make such further order as it thinks fit.
(4) The remedies given to any person by this section are in addition
to all other rights and remedies (if any) available to that person,
and nothing, other than the provisions of subsection (7) and (8),
restricts those other rights and remedies.
(5) Subject to the provisions of subsection (6), an order under this
section shall not be made by the Court —
(a) where the claim is an application for an order under the

Inheritance (Family and Dependants Provision)
Act 1972 , unless that application is made within the time
permitted by that Act; or
(b) in the case of any other claim, unless the application for
that order is made within the time within which the
applicant could have enforced his claim in respect of the
estate, without special leave of the Court, if the assets had
not been distributed;
but, notwithstanding the foregoing provisions of this subsection,
the order may be made, with the special leave of the Court, on
application made within the time within which the applicant could
have enforced his claim, in respect of the estate, with special leave
of the Court, if the assets had not been distributed.
(6) Notwithstanding anything to the contrary in subsection (5),
where a trustee has made a distribution of any assets forming part
of the estate of a deceased person or subject to a trust, and any
person who is entitled to apply for an order under this section
has, within the time specified in that subsection, applied to the
Court for an order on the claim and that person was not aware of
the distribution at the time when he made that application, the
Court may hear an application by that person under this section
after the expiration of the period prescribed by subsection (5), if it
is made within 6 months after the date on which the person first
became aware of the distribution, and may make an order
accordingly.
(7) Notwithstanding any rule of law to the contrary, where a trustee
has made a distribution of any assets forming part of the estate of
a deceased person or subject to a trust —
(a) a person may exercise the remedies (if any) given to him
by this section and all other rights and remedies available
to him (including all rights that he may have to follow
assets and any money or property into which they have
been converted) without first exercising the rights and
remedies (if any) available to him against the trustee in
consequence of the making of the distribution; and
(b) a person shall not exercise any remedy that may be
available to him against the trustee in consequence of the
making of the distribution, until he has exhausted all other
remedies available to him, whether under this section or in
equity or otherwise.
(8) Where a trustee has made a distribution of any assets forming
part of the estate of a deceased person or subject to a trust, relief
(whether under this section or in equity or otherwise) against any
person other than the trustee or in respect of any interest of any

such person in any assets so distributed and in any money or
property into which they have been converted, shall be denied,
wholly or in part, if the person from whom relief is sought
received the assets or interest in good faith and has so altered his
position in reliance on his having an indefeasible interest in the
assets or interest, that, in the opinion of the Court, having regard
to all possible implications in respect of the trustee and other
persons, it is inequitable to grant relief or to grant relief in full.
(9) Without prejudice to the provisions of subsection (8), an order
under this section may provide that any payment directed to be
made by that order shall be made by periodic payments or by
instalments, and the Court may fix the amount or rate thereof in
the order, and may from time to time vary, suspend or discharge
the order for cause shown, as the Court thinks fit.
[Section 65 amended by No. 57 of 1972 s. 3.] 66. Unknown beneficiaries, advertising for, distribution of
shares of
(1) Where any property is held by a trustee and the property or any
part thereof cannot be distributed because the trustee does not
know —
(a) whether any person who is, or may be, entitled thereto is,
or at any material date was, in existence; or
(b) whether all or any of the persons who are members of
any class that is or may be entitled thereto are, or at any
material date were, in existence; or
(c) whether any such person as is mentioned in paragraph (a)
or (b) is alive or dead or where he is to be found,
the trustee may publish such advertisements (whether in the State
or elsewhere) as are appropriate in the circumstances calling upon
every such person and every person claiming through any such
person to send in his claim within a time to be specified in the
advertisements, being, in any case, not less than 2 months from
the date on which the advertisement is published.
(2) Where the trustee is in doubt as to what advertisements should be
published under this section, he may apply to the Court for
directions in that regard.
(3) Where the trustee has received (whether as a result of
advertisements or not) a claim that any person is a person to
whom any advertisement made under this section relates, or any
notice that any person may claim to be such a person, and the
trustee is not satisfied that the claim is or would be valid, the
trustee may serve upon the claimant or the person of whom the

trustee has notice as aforesaid, a notice calling upon him, within a
period of 3 months from the date of service of the notice, to take
legal proceedings to enforce the claim, if he wishes to pursue it,
and to prosecute the proceedings with all due diligence; and
advising him that, if he fails to do so, his claim may be
disregarded and application may be made to the Court without
further notice for an order authorising the distribution of the
property.
(4) Nothing in subsection (3) makes it necessary for the trustee to
serve a notice therein mentioned on any person; and the Court
may make an order under this section, whether or not such a
notice has been served on any person, if it is satisfied that the
information supplied to the trustee by that person or otherwise in
the possession of the trustee indicates that the person is not one
of the persons specified in the advertisements or is not likely to
be one of those persons.
(5) Upon proof by affidavit of the circumstances, and of the inquiries
that have been made, and of the results of the inquiries and
advertisements, and of the claims of which the trustee has
received notice, and of the notices that the trustee has given to
claimants under subsection (3), and of the action (if any) that the
claimants have taken to enforce their claims, the Court may order
that the trustee be at liberty to distribute the property or part
thereof, subject to such conditions as the Court may impose —
(a) as if every person and every member of any class of
person specified in the order (being all or any of the
persons specified in the advertisements) is not in
existence or never existed or has died before a date or
event specified in the order; and
(b) where as a consequence of the order it is not possible or
practicable to determine whether or not any condition or
requirement affecting a beneficial interest in the property
or any part thereof has been complied with or fulfilled, as
if that condition or requirement had or had not been
complied with or fulfilled, as the Court may determine.
(6) In making any order under subsection (5), the Court may —
(a) disregard (without express reference thereto in the order)
the claims of any persons who do not appear to the Court
to be, or likely to be, any of the persons specified in the
advertisements;
(b) disregard (without express reference thereto in the order)
the claim of any person to whom the trustee has given
notice under subsection (3) and who has failed to take
legal proceedings to enforce the claim or to prosecute any

such proceedings with all due diligence;
(c) exclude from the operation of the order any person to
whom the trustee has not given notice under
subsection (3) and who, in the opinion of the Court, may
be one of the persons specified in the advertisements, or
any person whom the Court considers should, for any
reason, be excluded from the operation of the order;
(d) provide that the order shall not be acted on for such
period or except on such conditions as may be specified
in the order or that the effect of the order shall during a
period so specified be advertised in such manner and
form as may be specified in the order, or that the order be
served upon such person or persons as are specified
therein; and in the event of the Court exercising the
jurisdiction conferred by this paragraph it may in the
order direct that the order shall be of no effect in respect
of any person specified therein in the event of that person
instituting proceedings in the State to enforce his claim
and serving the proceedings upon the trustee within such
period as is specified in the order.
(7) The Court may make an order under this section notwithstanding
that there has not been strict compliance with any directions as to
advertisements previously given by the Court, or that an error has
been made in any advertisement (whether or not any directions
have previously been given by the Court) if the Court considers
that the error would not be likely to have prejudiced or misled the
persons to whom the advertisement relates.
(8) Where the Court makes an order under this section that the trustee
may distribute any property or part thereof as if every person and
every member of any class of persons specified in the order (not
being a person expressly excluded from the operation of the
order) is not in existence or never existed or has died before a
date or event specified in the order, and the trustee distributes in
accordance with the order, the trustee shall be exonerated from
any further liability to any such person or to any member of any
such class; but nothing in this section affects any remedy that any
person may have against any person other than the trustee,
including any right that he may have to follow the property and
any money or property into which it is converted.
(9) The Court may make one or more orders under this section in
respect of the same property.
(10) Any order made under this section may direct how the costs of
the order and of advertising under or for the purposes of the
order shall be borne.

(11) It shall not be necessary to serve notice of an application for an
order under this section upon any person, unless the Court
otherwise orders.
(12) Nothing in this section affects the right of the trustee (if he so
wishes) to distribute under any other law or statutory provision
or affects the protection thereby afforded when he makes
distribution pursuant to any such law or provision.
67. Service of notices etc. under s. 30(1)(k), 64 and 66
(1) Any notice, application or order that is to be served in accordance
with section 64 or section 66, or in accordance with any order
made pursuant to the latter section, or any notice that is to be
served under section 30(1)(k), may be served —
(a) by delivering it to the person for whom it is intended or
by sending it by prepaid registered letter addressed to that
person at his usual or last known place of abode or
business; or
(b) in such other manner as may be directed by an order of
the Court.
(2) Where a notice is sent by post as provided by this section, it shall
be deemed to be served at the time at which the letter would have
been delivered in the ordinary course of post.
68. Trustee of more than one trust, protection as to notice
A trustee acting for the purposes of more than one trust shall not,
in the absence of fraud, be affected by notice of any instrument,
matter, fact or thing in relation to any particular trust, if he has
obtained notice thereof merely by reason of his acting or having
acted for the purposes of another trust.
69. Powers of attorney, protection for trustees relying on
(1) A trustee acting or paying money in good of faith in reliance on
any power of attorney and on a statutory declaration or other
sufficient evidence that the power of attorney had not been
revoked shall not be liable for that act or payment by reason of
the fact that at the time of the act or payment the person who gave
the power of attorney was subject to any disability or bankrupt or
dead, or had done or suffered some act or thing to avoid the
power, if this fact was not known to the trustee at the time of his
so acting or paying.
(2) Nothing in this section affects the right of any person entitled to
money paid by a trustee, in circumstances mentioned in
subsection (1), against the person to whom the payment is made;
and the person so entitled shall have the same remedy against the

person to whom payment is made as he would have had against
the trustee.
70. Trustees liable for own defaults etc. only
A trustee shall be chargeable only for money and securities
actually received by him, notwithstanding his signing any receipt
for the sake of conformity; and shall be answerable and
accountable only for his own acts, receipts, neglects or defaults,
and not for those of any other trustee, nor those of any bank,
broker or other person with whom any trust money or securities
may be deposited, nor for the insufficiency or deficiency of any
securities, nor for any other loss, unless the insufficiency,
deficiency or loss occurs through his own wilful default.
71. Trustees’ expenses, reimbursement out of trust property
A trustee may reimburse himself for or pay or discharge out of
the trust property all expenses reasonably incurred in or about the
execution of the trusts or powers.
72. Chattels, bequest for life etc. or interest in, trustees’
protection
(1) Where any chattels are, under the provisions of a will, bequeathed
to any person, including an infant, for life or for any
limited interest, the trustee may cause an inventory to be made of
the chattels, of which inventory a copy shall be signed by that
person and retained by the trustee, and another copy shall be
delivered to that person.
(2) The trustee may, upon obtaining a signed copy of an inventory
thereof, deliver any chattels to a person such as is mentioned in
subsection (1) on such terms and conditions as the trustee thinks
fit, and shall not thereafter be bound to see to the repair or
insurance of the chattels, and shall not be subject to any liability
whatsoever by reason of the loss or destruction of the chattels or
the neglect of that person to effect any necessary repairs or
insurance.
[(3) deleted] (4) Where chattels bequeathed to a person for life or some other
limited interest consist wholly of articles of household furniture,
the trustee may deliver those articles to that person and shall be
entitled to the protection provided by subsection (2) without any
obligation to register an inventory under subsection (3).
[Section 72 amended by No. 42 of 2011 s. 25.] 73. Chattels bequeathed to infant, dealing with

(1) A trustee may in his discretion deliver to an infant, or to the
guardian or any of the guardians of an infant, any chattels
absolutely vested in the infant, and the receipt of the infant or
guardian shall be a complete discharge to the trustee for any
chattels so delivered.
(2) The powers conferred by this section are in addition to the
powers conferred by section 59 and, for the purposes of
paragraph (a) of that section, the value of the chattels delivered
pursuant to this section shall not be taken into account in any
way.
74. Shares, trustees’ liability for calls on after transfer of
A personal representative of a deceased person who was
registered as the holder of shares not fully paid up in any
incorporated company may distribute the assets of the estate of
that deceased person as soon as the personal representative has
procured the registration of some other person as the holder of
the shares, without reserving any portion of the estate for the
payment of any calls made after the date of that registration,
whether made by the company or its directors or by its liquidators
in a winding up, but nothing in this section affects any right that
the company or its liquidator may have to follow the assets of the
deceased person into the hands of any persons to or amongst
whom they have been transferred or distributed.
75. Breach of trust, Court may relieve trustee from personal
liability for
If it appears to the Court that a trustee, whether appointed by the
Court or otherwise, is, or may be, personally liable for any breach
of trust, whether the transaction alleged to be a breach of trust
occurred before or after the commencement of this Act, but has
acted honestly and reasonably, and ought fairly to be excused for
the breach of trust and for omitting to obtain the directions of the
Court in the matter in which he committed the breach, then the
Court may relieve him either wholly or partly from personal
liability for that breach.
76. Breach of trust, Court may order beneficiary to give
indemnity for
(1) Where a trustee commits a breach of trust at the instigation or
request or with the consent in writing of a beneficiary, the Court
may, if it thinks fit, make such order as to the Court seems just
for impounding all or any part of the interest of the beneficiary in
the trust estate by way of indemnity to the trustee or persons
claiming through him.

(2) This section applies to breaches of trust committed as well before
as after the commencement of this Act.
Part VII — Further powers of the Court
Division 1 — Appointment of new trustees
77. New trustees, Court may appoint
(1) The Court may, whenever it is expedient to appoint a new trustee
or new trustees, and it is inexpedient, difficult or impracticable so
to do without the assistance of the Court, make an order for the
appointment of a new trustee or new trustees, either in
substitution for, or in addition to, any existing trustee or trustees,
or although there is no existing trustee.
(2) In particular, and without limiting the generality of the provisions
of subsection (1), the Court may make an order appointing a new
trustee in substitution for a trustee who —
(a) desires to be discharged; or
(b) has been held by the Court to have misconducted himself
in the administration of the trust; or
(c) is convicted of an indictable offence; or
(d) is a person of unsound mind; or
(e) is bankrupt; or
(f) is a corporation that has ceased to carry on business, or is
in liquidation, or has been dissolved.
(3) An order under this section, and any consequential vesting order
or conveyance, does not operate further or otherwise as a
discharge to any discharged, former or continuing trustee than an
appointment of new trustees under any power for that purpose
contained in any instrument would have operated.
(4) Nothing in this section confers power to appoint an executor or
administrator.
(5) Every trustee appointed by the Court has, as well before as after
the trust property becomes by law or by assurance or otherwise
vested in him, the same powers, authorities, and discretions, and
may in all respects act, as if he had been originally appointed a
trustee by the instrument (if any) creating the trust.
[Section 77 amended by No. 70 of 2004 s. 82.] Division 2 — Vesting orders
78. Vesting orders, when Court may make
(1) The Court may make an order, in this Act called a vesting order ,

that has effect as provided in section 85.
(2) A vesting order may be made in any of the following cases,
namely —
(a) where the Court appoints or has appointed a new trustee;
or
(b) where a new trustee has been appointed out of Court
under any statutory or express power; or
(c) where a trustee retires or has retired; or
(d) where a trustee is under a disability; or
(e) where a trustee is out of the jurisdiction of the Court; or
(f) where a trustee cannot be found; or
(g) where a trustee, being a corporation, has ceased to carry
on business or is in liquidation or has been dissolved; or
(h) where a trustee neglects or refuses to convey any
property, or to receive the dividends or income of any
property, or to sue for or recover any property according
to the direction of the person absolutely entitled to the
same for 28 days next after a request in writing has been
made to him by that person; or
(i) where it is uncertain who was the survivor of 2 or more
trustees jointly entitled to or possessed of any property; or
(j) where it is uncertain whether the last trustee known to
have been entitled to or possessed of any property is alive
or dead; or
(k) where there is no personal representative of the last
trustee who was entitled to or possessed of any property
or where it is uncertain who is the personal representative
of that trustee or where the personal representative of that
trustee cannot be found; or
(l) where any person neglects or refuses to convey any
property, or to receive the dividends or income of any
property, or to sue for or recover any property in
accordance with the terms of an order of the Court; or
(m) where a deceased person was entitled to or possessed of
any property and his personal representative is under a
disability; or
(n) where property is vested in a trustee and it appears to the
Court to be expedient to make a vesting order.
(3) Where the provisions of subsection (2) are applicable, they
extend to a trustee entitled to, or possessed of, any property either
solely or jointly with any other person and whether by way of
mortgage or otherwise.

79. Vesting orders, terms of etc.
(1) A vesting order may vest the property in such person, in such
manner and for such estate or interest as the Court may direct, or
may release or dispose of any contingent right to such person as
the Court may direct.
(2) The fact that a vesting order is founded or purports to be founded
on an allegation of the existence of any of the matters mentioned
or referred to in section 78 is conclusive evidence of the matter so
alleged, in any Court, upon any question as to the validity of the
order.
(3) Nothing in this Act prevents the Court from directing a
reconveyance or the payment of costs occasioned by any vesting
order if improperly obtained, or from making a further vesting
order.
(4) Where, by reason of the dissolution of a corporation either before
or after the commencement of this Act, a legal estate in any
property has determined, the Court may by order create a
corresponding estate and vest it in the person who would have
been entitled to the estate that determined, had it remained a
subsisting estate.
80. Contingent rights of unborn persons, orders as to
Where any property is subject to a contingent right in an unborn
person or class of unborn persons who on coming into existence
would become entitled to or possessed of the property on any
trust, the Court may make an order releasing the property from
the contingent right or may make an order vesting in any person
the estate or interest to, or of, which the unborn person or class of
unborn persons would, on coming into existence, be entitled or
possessed in the property.
81. Mortgagee under a disability, orders as to
Where any person entitled to or possessed of any property by
way of mortgage is under a disability the Court may make an
order vesting or releasing or disposing of the property in like
manner as in the case of a trustee under like disability.
82. Infant’s beneficial interest, orders as to
Where an infant is beneficially entitled to any property, the Court
may, where it considers it necessary or desirable in the interest of
the infant or of the infant and some other person, make an
order —

(a) appointing a person to sell and convey, lease, mortgage or
charge the property, or otherwise to exercise such of the
powers as are conferred by or under this Act on a trustee,
as the Court may in the order specify; or
(b) in the case of stock or a thing in action, vesting in any
person the right to transfer or call for a transfer of that
stock, or to receive the dividends or income thereof, or to
sue for and recover that thing in action, upon such terms
as the Court thinks fit.
83. Order for sale or mortgage of land, effect of etc.
Where the Court gives a judgment or makes an order directing the
sale or mortgage of any land, every person who is entitled to, or
possessed of, any interest in the land, or entitled to a contingent
right therein, and is a party to the action or proceeding in which
the judgment or order is given or made or is otherwise bound by
the judgment or order, shall be deemed to be so entitled or
possessed as a trustee for the purposes of this Act, and the Court
may, if it thinks expedient, make an order vesting the land, or any
part thereof, for such estate or interest as the Court thinks fit in
the purchaser or mortgagee or in any other person.
84. Orders for conveyance of land etc., consequential
declarations and orders as to
Where a judgment is given for the specific performance of a
contract concerning any interest in land, or for partition, or sale in
lieu of partition, or exchange of any land, or generally where any
judgment is given for the conveyance of any interest in land
(either in cases arising out of the doctrine of election or
otherwise), the Court may declare —
(a) that any of the parties to the action are trustees of any
interest in the land, or any part thereof, within the
meaning of this Act; or
(b) that the interests of unborn persons who might claim
under any party to the action, or under the will or
voluntary settlement of any deceased person who was,
during his lifetime, a party to the contract or transaction
concerning which the judgment is given, are the interests
of persons who, on coming into existence, would be
trustees within the meaning of this Act;
and thereupon the Court may make a vesting order relating to the
rights of those persons, born and unborn, as if they had been
trustees.
85. Vesting orders, effect of

(1) In the case of a vesting order consequential on the appointment of
a new trustee or the retirement of a trustee, the vesting order has
the same effect —
(a) as if the persons (if any) who, before the appointment or
retirement, were the trustees had duly executed all proper
conveyances of the property for such estate or interest as
the Court directs; or
(b) if there is no such person as is mentioned in
paragraph (a), or no such person of full capacity, as if
such person had existed and been of full capacity, and had
duly executed all proper conveyances of the property for
such estate or interest as the Court directs.
(2) In every case, other than those hereinbefore in this section
mentioned, the vesting order has the same effect as if the trustee
or other person or description or class of persons to whose
rights, or supposed rights, the provisions of this Division
respectively relate, had been an ascertained and existing person of
full capacity, and had executed a conveyance or release to the
effect intended by the order.
(3) In the case of land subject to the operation of the Transfer of
Land Act 1893 , the land does not vest until the appropriate entries
are made in accordance with the provisions of that Act.
(4) In the case of —
(a) any property that does not come within subsection (3),
but a transfer of which is required to be registered by or
under any Act, whether of this State or otherwise; or
(b) any security that is transferable only in books kept by a
corporation, company or other body, or in manner
directed by or under any Act, whether of this State or
otherwise,
a vesting order vests in the person named in the order the right to
transfer or call for a transfer of the property or security.
(5) In the case of any security or chose in action, the vesting order
vests in the person named in the order the right to receive the
dividends or income thereof, and to sue for or recover the chose
in action.
(6) The person, in whom the right to transfer or call for the transfer
of any property or security is vested by an order of the Court
under this Act, may transfer the property or security to himself or
to any other person in accordance with the order; and all banks,
corporations, companies, societies, associations and persons shall
give effect to the transfer or comply with any direction or request

to transfer the property or security given or made in accordance
with the order.
(7) After notice in writing of an order made under this section, it
shall not be lawful for any bank, corporation, company, society,
association or person to transfer any property or security to
which the order relates, or to pay any dividends thereon, except in
accordance with the order.
(8) An order shall not be made under this section vesting in any
person shares that are not fully paid up, unless that person applies
for the order or consents to the making of the order.
86. Vested stock etc., directions as to transfer of etc.
The Court may make declarations and give directions concerning
the manner in which the right to transfer any stock or thing in
action vested under the provisions of this Act is to be exercised.
87. Person may be appointed to convey instead of vesting order
Where a vesting order can be made under any of the foregoing
provisions, the Court may, if it is more convenient, appoint a
person to convey the property or release any right, and a
conveyance or release by that person in conformity with the order
has the same effect as an order under the appropriate provision.
88. Charities etc., vesting property in
The powers conferred by this Act as to vesting orders may be
exercised for vesting any property in any trustee of a charity or
society over which the Court would have jurisdiction upon action
duly instituted, whether the appointment of the trustee was made
by instrument under a power or by the Court under its general or
statutory jurisdiction.
Division 3 — Jurisdiction to make other orders
89. Additional powers, Court may confer on trustee etc.
(1) Where in the opinion of the Court any sale, lease, mortgage,
surrender, release or other disposition, or any purchase,
investment, acquisition, retention, expenditure or other transaction
is expedient in the management or administration of any property
vested in a trustee, or would be in the best interests of the
persons, or the majority of the persons, beneficially interested
under the trust, but it is inexpedient or difficult or impracticable to
effect the disposition or transaction without the assistance of the
Court, or it or they cannot be effected by reason of the absence of
any power for that purpose vested in the trustee by the trust
instrument (if any) or by law, the Court may by order confer

upon the trustee, either generally or in any particular instance, the
necessary power for the purpose, on such terms, and subject to
such provisions and conditions (if any) as the Court may think
fit, and may direct in what manner any money authorised to be
expended, and the costs of any transaction, are to be paid or
borne, and as to the incidence thereof between capital and income.
(2) The Court may from time to time rescind or vary any order made
under this section, or may make any new or further order; but
such a rescission or variation of any order shall not affect any act
or thing done in reliance on the order before the person doing the
act or thing became aware of the application to the Court to
rescind or vary the order.
(3) An order may be made under this section, notwithstanding
anything to the contrary contained or expressed in the instrument
creating the trust.
(4) An application to the Court under this section may be made by
the trustees, or by any of them, or by any person beneficially
interested under the trust.
90. Varying or revoking certain trusts, Court’s powers as to
(1) Without limiting any other powers of the Court, it is hereby
declared that, where any property is held on trusts arising under
any will, settlement or other disposition, or on the intestacy or
partial intestacy of any person, or under any order of the Court,
the Court may, if it thinks fit, by order approve on behalf of —
(a) any person having, directly or indirectly, an interest,
whether vested or contingent, under the trusts who, by
reason of infancy or other incapacity, is incapable of
assenting; or
(b) any person (whether ascertained or not) who may become
entitled, directly or indirectly, to an interest under the
trusts as being, at a future date or on the happening of a
future event, a person of any specified description or a
member of any specified class of persons; but this
paragraph does not include any person who would be of
that description or a member of that class, if that date had
fallen or that event had happened at the date of the
application to the Court; or
(c) any unborn or unknown person; or
(d) any person, in respect of any discretionary interest of his
under protective trusts where the interest of the principal
beneficiary has not failed or determined,
any arrangement (by whomever proposed, and whether or not

there is any other person beneficially interested who is capable of
assenting thereto) varying or revoking all or any of the trusts, or
enlarging the powers of the trustees of managing or administering
any of the property subject to the trusts.
(2) Except where the Court approves an arrangement on behalf of a
person referred to in subsection (1)(d), the Court shall not
approve an arrangement on behalf of any person if the
arrangement is to his detriment; and, in determining whether any
such arrangement is to the detriment of a person, the Court may
have regard to all the benefits that may accrue to him directly or
indirectly in consequence of the arrangement, including the
welfare and honour of the family to which he belongs.
(3) This section does not apply to any trust affecting property settled
by any Act, other than the Administration Act 1903 .
(4) Any rearrangement approved by the Court under subsection (1)
is binding on all persons on whose behalf it was so approved,
and thereafter the trusts as so rearranged shall take effect
accordingly.
(5) In this section —
discretionary interest means an interest arising under the trust
specified in section 61(3) or any like trust;
principal beneficiary has the same meaning as in section 61(1);
protective trusts means the trusts specified in section 61(2)
and (3) or any like trusts.
91. Periodic payments, Court may vary amount of
Without limiting any other powers of the Court, it is hereby
declared that the Court may, on the application of any trustee or
of any person beneficially interested under the trust, by order,
vary from time to time the amount of any payment (whether by
way of annuity or otherwise) being made periodically to any
beneficiary, if the Court is of opinion, having regard to all the
circumstances of the case, that it is just and equitable that the
amount be varied.
92. Directions, trustee may ask Court for
(1) Any trustee may apply to the Court for directions concerning any
property subject to a trust, or respecting the management or
administration of that property, or respecting the exercise of any
power or discretion vested in the trustee.
(2) Every application made under this section shall be served upon,
and the hearing thereof may be attended by, all persons interested
in the application or such of them as the Court thinks expedient.

93. Applications to Court, who may make
(1) An order under this Act for the appointment of a new trustee, or
concerning any property subject to a trust, may be made on the
application of any person beneficially interested in the property,
whether under a disability or not, or on the application of any
person duly appointed trustee of the property or intended to be so
appointed.
(2) An order under this Act concerning any interest in any property
subject to a mortgage may be made on the application of any
person beneficially interested in the property, whether under a
disability or not, or of any person interested in the money secured
by the mortgage.
94. Review of trustee’s acts by Court etc.
(1) Any person who has, directly or indirectly, an interest, whether
vested or contingent, in any trust property, and who is aggrieved
by any act, omission or decision of a trustee in the exercise of any
power conferred by this Act, or who has reasonable grounds to
apprehend any such act, omission or decision of a trustee by
which he will be aggrieved, may apply to the Court to review the
act, omission or decision, or to give directions in respect of the
apprehended act, omission or decision; and the Court may require
the trustee to appear before it, and to substantiate and uphold the
grounds of the act, omission or decision that is being reviewed,
and may make such order in the premises as the circumstances of
the case may require.
(2) An order of the Court under subsection (1) shall not —
(a) disturb any distribution of the trust property, made
without breach of trust, before the trustee became aware
of the making of the application to the Court; or
(b) affect any right acquired by any person in good faith and
for valuable consideration.
(3) Where any application is made under this section, the Court
may —
(a) if any question of fact is involved, direct how the question
shall be determined; and
(b) if the Court is being asked to make an order that may
adversely affect the rights of any person who is not a
party to the proceedings, direct that that person shall be
made a party to the proceedings.
95. Trustee acting under Court’s direction, protection of

(1) Any trustee acting under any direction of the Court shall be
deemed, so far as regards his own responsibility, to have
discharged his duty as trustee in the subject-matter of the
direction, notwithstanding that the order giving the direction is
subsequently invalidated, overruled, set aside or otherwise
rendered of no effect, or varied.
(2) This section does not indemnify any trustee in respect of any act
done in accordance with any direction of the Court if he has been
guilty of any fraud or wilful concealment or misrepresentation in
obtaining the direction or in acquiescing in the Court making the
order giving the direction.
96. Absence etc. of parties, Court may proceed in
(1) Where in any proceedings the Court is satisfied that diligent
search has been made for any person, who, in the character of
trustee, is made a defendant in any action, to serve him with a
process of the Court, and that he cannot be found, the Court may
hear and determine the proceedings and give judgment therein
against that person, in his character of a trustee, as if he had been
duly served or had entered an appearance in the action, and had
also appeared by his counsel or solicitor at the hearing, but
(except as provided in subsection (2)) without prejudice to any
interest he may have in the matters in question in the proceedings
in any other character.
(2) Where any party to any proceedings relating to a trust, or where
any person or class of persons that the Court thinks should be
made a party or parties to those proceedings or otherwise be
given an opportunity to attend and be heard in those proceedings,
at the time of the proceedings —
(a) is not within the jurisdiction; or
(b) is under disability; or
(c) cannot be found; or
(d) is unborn; or
(e) is not capable of being identified or ascertained,
the Court may appoint some person to represent that party,
person or class, or may proceed in his or their absence, and all
orders made in the proceedings are as binding on that party,
person or class as if personally present and of full capacity.
97. Costs of court proceedings, orders as to
The Court may order the costs and expenses of and incidental to
any application for any order under this Act, or of and incidental
to the order, or any conveyance or assignment in pursuance

thereof, to be raised and paid out of the property in respect of
which any of them is made, or out of the income of the property,
or to be borne and paid in such manner and by such persons as
the Court thinks fit.
98. Trustees’ remuneration
(1) The Court may, out of the property subject to any trust, allow to
any person who is, or has been, a trustee thereof or to that
person’s personal representative such commission or percentage
for that person’s services as is just and reasonable.
(2) The aggregate commission or percentage allowed under
subsection (1) shall not exceed 5% of the gross value of the trust
property.
(3) The Court may, from time to time, allow such portion of the
aggregate commission or percentage allowable under this section
as it thinks fit.
(4) Where the Court allows a commission or percentage under this
section, in any case in which 2 or more persons are or have been
trustees, whether acting at the same time or at different times, the
Court may, in its discretion, apportion the total amount allowed
among the trustees in such manner as it thinks fit, and, in
particular, may divide the amount in unequal shares or may make
the allowance to one or more of the trustees to the exclusion of
the other or others.
(5) In the absence of a direction to the contrary in the trust
instrument, a trustee being a person engaged in any profession or
business for whom no benefit or remuneration is provided in the
trust instrument is entitled to charge and be paid out of the trust
property all usual professional or business charges for business
transacted, time expended, and acts done by him or his firm in
connection with the trust, including acts that a trustee not being in
any profession or business could have done personally; and, on
any application to the Court for commission or percentage under
subsection (1), the Court may take into account any charges that
have been paid out of the trust property under this subsection.
[Section 98 amended by No. 18 of 1968 s. 4.] 99. Payment into Court by trustees
(1) Trustees or the majority of trustees having in their hands or under
their control money or securities subject to a trust may pay them
into Court; and they shall be dealt with according to the orders,
and subject to the rules, of the Court.
(2) The receipt or certificate of the proper officer is a sufficient

discharge to trustees for any money or securities paid into Court.
(3) Where money or securities are vested in any persons as trustees
and the majority are desirous of paying them into Court, but the
concurrence of the other or others cannot be obtained, the Court
may order the payment into Court to be made by the majority
without the concurrence of the other or others.
(4) Where any money or securities ordered to be paid into Court
under subsection (3) are deposited with a banker, broker or other
depositary, the Court may order payment or delivery of the
money or securities to the majority of the trustees, for the purpose
of payment into Court.
(5) Every transfer, payment, and delivery of money or securities
made in pursuance of any order under this section is valid and
takes effect as if it had been made on the authority or by the act of
all the persons entitled to the money and securities.
Part VIII — Miscellaneous
100. Indemnity to persons acting under this Act etc.
This Act, and every order purporting to be made under this Act,
is a complete indemnity to every bank, company, society,
association or person for any acts done pursuant thereto, and it is
not necessary for any bank, company, society, association or
person to inquire concerning the propriety of the order, or
whether the Court had jurisdiction to make it.
101. Bankers acting on trustees’ authority, protection of
(1) Where there are 2 or more trustees of a trust and the trustees by
writing under their hands authorise a banker —
(a) to pay bills of exchange drawn upon the banking account
of the trustees by the trustee or trustees named in that
behalf in the authority; or
(b) to recognise as a valid endorsement upon any bill of
exchange payable to the order of the trustees the
endorsement thereon by the trustee or trustees named in
that behalf in the authority; or
(c) to pay money out of any account of the trust in a savings
bank, on presentation of withdrawal forms signed in the
manner specified in the authority,
the banker acting in pursuance of that authority shall not be
deemed privy to a breach of trust on the ground only of notice
that the persons giving the authority were trustees, or that the
instrument (if any) by which the trust was created did not contain
any express power to give such an authority.

(2) The protection afforded to bankers by subsection (1) does not
apply in the case of anything done by a banker, in pursuance of
an authority given under that subsection, after the banker has
received notice in writing of the revocation, by death or
otherwise, of the authority.
(3) This section does not affect any question of the liability of any
trustee for breach of trust in authorising a banker as provided by
subsection (1) thereof.
(4) Nothing in this section or in any rule of law prevents trustees
opening a bank account named as an imprest account and
authorising any one or more of their number or any other person
or persons to operate upon the imprest account.
(5) In this section,
bill of exchange has the same meaning as in the Bills of
Exchange Act 1909 (Commonwealth).
[Section 101 amended by No. 8 of 2009 s. 126.] 102. Non-charitable and invalid purposes, inclusion does not
invalidate a trust
(1) In this section the term imperfect trust provision means any trust
under which some non-charitable and invalid as well as some
charitable purpose or purposes is or are or could be deemed to be
included in any of the purposes to or for which an application of
the trust property, or any part thereof, is by the trust directed or
allowed.
(2) A trust shall not be held to be invalid by reason that the trust
property is to be held or applied in accordance with an imperfect
trust provision.
(3) Every trust under which property is to be held or applied in
accordance with an imperfect trust provision shall be construed
and given effect in the same manner in all respects as if no
holding or application of the trust property or any part thereof to
or for any non-charitable and invalid purpose had been or could
be deemed to have been so directed or allowed.
(4) This section applies to every trust under which property is to be
held or applied in accordance with an imperfect trust provision,
whether the trust is declared before or after the commencement of
this Act; but it does not apply to any trust declared by the will of
any testator dying before, or to any other trust declared before,
the commencement of this Act, if before the commencement of
this Act —
(a) the trust has been declared to be invalid by any order or

judgment made or given in legal proceedings; or
(b) property subject to the imperfect trust provision or income
therefrom has been paid or conveyed to, or applied for the
benefit of, or set apart for, the persons entitled by reason
of the invalidity of the trust.
103. Interest bearing securities, apportionment of interest on sale
etc.
(1) Whenever any payment received by a trustee in respect of a sale
of trust property, being securities bearing interest at a fixed rate,
is, or includes, payment for the right to receive any interest
accrued from those securities at the time of the sale, though that
interest may not then be due, the amount of that accrued interest
shall for the purposes of the trust be deemed to have been
received by the trustee as interest in respect of the period during
which the interest so accrued.
(2) Whenever any payment made by a trustee out of trust money in
respect of a purchase of any securities bearing interest at a fixed
rate is, or includes, payment for the right to receive any interest
accrued from those securities at the time of the purchase, though
that interest may not then be due, the amount of that accrued
interest when received on account of the trust shall, for the
purposes of the trust, be deemed to have been so received as
purchase money repaid.
(3) Anything done by a trustee before the passing of this Act that
would have been authorised by this section, if this section had
then been in force, shall be deemed to have been authorised by
this section.
(4) The provisions of this section apply if and so far only as a
contrary intention is not expressed in the instrument (if any)
creating the trust, and have effect subject to the terms of that
instrument.
104. Residuary estate of deceased, application of income from
(1) Where, under the provisions of the will of a person (in this
section called the deceased ) who dies after the commencement of
this Act, any real or personal property included either by specific
or general description in a residuary gift is settled by way of
succession, no part of the income of that property (which
property is hereinafter in this section called the settled property )
is applicable in or towards the payment of the funeral,
testamentary, and administration expenses, or the debts, legacies,
and liabilities, or of the interest (if any) thereon, up to the date of
the death of the deceased.

(2) Subsection (1) does not apply to any commission that is payable
to the trustee in respect of any such income as is mentioned in
that subsection or to any testamentary or administration expenses
that, apart from that subsection, would be payable wholly out of
income.
(3) The income of the settled property is applicable in priority to any
other assets in payment of the interest (if any) accruing due on the
funeral, testamentary, and administration expenses, and the debts,
legacies, and liabilities after the date of death of the deceased and
up to the payment thereof, and the balance of that income is
payable to the person for the time being entitled to the income of
the settled property.
(4) Where, after the death of the deceased, income of assets
comprised in the settled property that are ultimately applied in or
towards payment of the funeral, testamentary, and administration
expenses, and the debts, legacies, and liabilities arises pending
that application, that income shall, for the purposes of
this section, be deemed to be income of the residuary estate of the
deceased.
(5) In this section administration expenses includes duty payable
under the Administration Act 1903 , and estate duty payable under
any Commonwealth Act and any other duty payable in any state
or country outside this State on, or consequent on, or arising out
of, the death of the deceased to the extent to which such duties are
payable out of residue.
(6) Nothing in this section applies to any annuity that is payable out
of the estate of the deceased.
(7) This section affects only the rights of beneficiaries under the will
as between themselves, and does not affect the rights of creditors
of the deceased or limit any other powers of the trustee.
(8) The provisions of this section apply if and so far only as a
contrary intention is not expressed in the will, and have effect
subjects to the terms of the will and of any Act as to charges on
property of the deceased.
105. Residuary estate of deceased, application of income pending
sale etc.
(1) Where, under the will of any person any real or personal
property, included (either by specific or general description) in a
residuary gift is settled by way of succession, then,
notwithstanding that the property may be of a wasting,
speculative or reversionary nature —

(a) pending any sale, calling in, or conversion of the settled
property, the whole of the net income of the property
actually producing income shall be applied as income and
no part thereof shall be apportioned to capital; and
(b) on any sale, calling in, or conversion of the settled
property, or on the falling in of any reversionary property,
no part of the proceeds of the sale, calling in, conversion
or falling in shall be applied as past income.
(2) This section applies only in respect of the wills of persons who
die after the commencement of this Act.
(3) The provisions of this section apply if and so far only as a
contrary intention is not expressed in the will of the deceased, and
have effect subject to the terms of that will.
106. Annuities etc., to be applied as income in some cases
(1) This section applies to —
(a) every payment of an annuity contributed for or purchased
by, for, or on behalf of, a deceased person who dies after
the commencement of this Act; and
(b) every periodic payment, however described, paid in terms
of, or pursuant to, a policy of insurance on the life of a
deceased person, who dies after the commencement of
this Act, and providing for payments to be made
thereunder for a period of years or until a specified date or
on the occurrence of a specified event or for the life of
any person,
that is received as part of the estate of the deceased person by the
trustee of his estate.
(2) Every payment to which this section applies shall be paid or
applied as if it were income of the estate of the deceased person
received on the date on which that payment is received, and so
that the dispositions, trusts, and powers applicable in the
administration of the estate with respect to income received on
that date apply with respect to that payment.
(3) The provisions of this section apply if, and so far only as, a
contrary intention is not expressed in the will of the deceased
person, and have effect subject to the terms of that will.
107. Trustees’ remuneration deemed testamentary expenses
The fees, commission, remuneration, and other charges payable
to a trustee in respect of the administration of the estate of a
deceased person shall be deemed to be testamentary expenses.

108. Missing beneficiaries etc., costs of inquiries as to
The costs, expenses, and charges of the trustee of any property in
respect of any inquiries made by him to ascertain the existence or
identity of any person or persons entitled to any legacy, money or
distributive share in the property, or otherwise incurred in relation
thereto, shall be borne by and paid out of the legacy, money or
distributive share of the person or persons in respect of whom the
inquiries were made, unless a contrary intention appears in the
instrument (if any) creating the trust.
109. Life tenant etc. to have powers of a trustee in certain cases
(1) Where there is no trustee of any land, but the land is for the time
being lawfully vested in any person entitled to the possession
thereof, or to the receipt of the rents and profits therefrom, for an
estate for life, or for a term of years determinable with his life, or
for any greater estate not being a fee simple absolute, that person
may exercise all the powers conferred on a trustee by this Act,
and the Court may confer on that person all the powers that it
could confer on a trustee under this Act; and anything done by
that person in exercise of any power by or under this section
conferred has the same force and effect as if it had been done by a
trustee.
(2) Nothing in this section authorises any person mentioned in
subsection (1) to sell any land therein mentioned, or to raise any
capital money by a mortgage thereof or other dealing therewith,
unless the money paid on the sale or the capital money so raised
is paid to a trustee who is duly appointed and entitled to receive it.
110. Regulations
The Governor may make regulations prescribing all matters that
are required or permitted by this Act to be prescribed or are
necessary or convenient to be prescribed for giving effect to the
purposes of this Act.
[Section 110 inserted by No. 1 of 1997 s. 14.] First Schedule — Acts repealed
[s. 4] [Heading amended by No. 19 of 2010 s. 4.] No. of Act. Short Title. Extent of
Repeal.
23 and 24 Victoria c. 145
(Imp.). (Adopted by
31 Victoria No. 8 4.)
An Act to give trustees, mortgagees, and
others certain powers now commonly
inserted in Settlements, Mortgages, and
Wills
Part I and Part
III.
55 Victoria No. 10 The Settled Land Act of 1892 The whole.
No. 49 of 1909 Settled Land Act Amendment Act 1909 The whole.
64 Victoria No. 17 Trustees Act 1900 The whole.
No. 7 of 1927 Trustees Act Amendment Act 1927 The whole.
No. 38 of 1951 Trustees Act Amendment Act 1951 The whole.
No. 35 of 1955 Trustees Act Amendment Act 1955 The whole.
No. 54 of 1955 Trustees Act Amendment Act (No. 2) 1955 The whole.
No. 39 of 1956 Trustees Act Amendment Act 1956 The whole.
No. 15 of 1957 Trustees Act Amendment Act 1957 The whole.

No. of Act. Short Title. Extent of
Repeal.
23 and 24 Victoria c. 145
(Imp.). (Adopted by
31 Victoria No. 8 4.)
An Act to give trustees, mortgagees, and
others certain powers now commonly
inserted in Settlements, Mortgages, and
Wills
Part I and Part
III.
55 Victoria No. 10 The Settled Land Act of 1892 The whole.
No. 49 of 1909 Settled Land Act Amendment Act 1909 The whole.
64 Victoria No. 17 Trustees Act 1900 The whole.
No. 7 of 1927 Trustees Act Amendment Act 1927 The whole.
No. 38 of 1951 Trustees Act Amendment Act 1951 The whole.
No. 35 of 1955 Trustees Act Amendment Act 1955 The whole.
No. 54 of 1955 Trustees Act Amendment Act (No. 2) 1955 The whole.
No. 39 of 1956 Trustees Act Amendment Act 1956 The whole.
No. 15 of 1957 Trustees Act Amendment Act 1957 The whole.
Second Schedule — Form of notice by advertisement
[s. 63] [Heading amended by No. 19 of 2010 s. 4.] A.B., late of ( set out the usual residence and addition or other description of
the deceased ).
Creditors and other persons having claims (to which section 63 of the
Trustees Act 1962 relates) in respect of the estate of the deceased, who died
(set out the date of death with such accuracy as the information of the
trustee, personal representative, or applicant for grant of representation
permits), are required by the trustee (or personal representative or applicant
for grant of representation)
, of
(set out name and address of trustee or personal representative or applicant
for grant of representation ) to send particulars of their claims to him by the
day of 20 , * after which date the trustee ( or
personal representative or applicant for grant of representation) may convey
or distribute the assets, having regard only to the claims of which he then
has notice.
(Date) * A date not less than one month from date of advertisement.
Notes
1 This reprint is a compilation as at 13 July 2012 of the Trustees Act 1962 and
includes the amendments made by the other written laws referred to in the
following table 1a, 5. The table also contains information about any reprint.
Compilation table
Short title Number and year Assent Commencement
Trustees Act 1962 78 of 1962(11 Eliz. II No. 78)
6 Dec 1962 1 Jan 1963 (see s. 2)
Decimal Currency Act 1965 113 of 1965 21 Dec 1965 Act other than s. 4-9: 21 Dec 1965 (see s. 2(1));s. 4-9: 14 Feb 1966 (see s. 2(2))
Trustees Act Amendment Act 1968 18 of 1968 16 Oct 1968 16 Oct 1968
Reprint of the Trustees Act 1962 approved 2 Jul 1971 (includes amendments listed above)
Age of Majority Act 1972 s. 6(2) 46 of 1972 18 Sep 1972 1 Nov 1972 (see s. 2 and Gazette 13 Oct 1972 p. 4069)
Inheritance (Family and Dependants Provision) Act 1972 s. 3(2)
57 of 1972 31 Oct 1972 1 Jan 1973 (see s. 2 and Gazette 17 Nov 1972 p. 4379)
Acts Amendment (Land Valuers) Act 1978 Pt. II 56 of 1978 6 Sep 1978 1 Jul 1979 (see s. 2 and Gazette 22 Jun 1979 p. 1677)
Reprint of the Trustees Act 1962 approved 14 Sep 1981 (includes amendments listed above)
Trustees Amendment Act 1987 84 of 1987 9 Dec 1987 s. 1 and 2: 9 Dec 1987;Act other than s. 1 and 2: 1 Sep 1988 (see s. 2 and Gazette 26 Aug 1988 p. 3271)
Local Government (Consequential Amendments) Act 1996 s. 4
14 of 1996 28 Jun 1996 1 Jul 1996 (see s. 2)
Trustees Amendment Act 1997 1 of 1997 6 May 1997 s. 1 and 2: 6 May 1997;Act other than s. 1 and 2: 16 Jun 1997 (see s. 2 and Gazette 10 Jun 1997 p. 2661)
Acts Amendment and Repeal (Financial Sector Reform) Act 1999 s. 108
26 of 1999 29 Jun 1999 1 Jul 1999 (see s. 2(1) and Gazette 30 Jun 1999 p. 2905)
Reprint of the Trustees Act 1962 as at 11 Jan 2002 (includes amendments listed above)
Acts Amendment (Equality of Status) Act 2003 Pt. 58
28 of 2003 22 May 2003 1 Jul 2003 (see s. 2 and Gazette 30 Jun 2003 p. 2579)
Statutes (Repeals and Minor Amendments) Act 2003 s. 122
74 of 2003 15 Dec 2003 15 Dec 2003 (see s. 2)
Criminal Law Amendment (Simple Offences) Act 2004 s. 82
70 of 2004 8 Dec 2004 31 May 2005 (see s. 2 and Gazette 14 Jan 2005 p. 163)
Limitation Legislation Amendment and Repeal Act 2005 s. 23
20 of 2005 15 Nov 2005 15 Nov 2005 (see s. 2)
Reprint 4: The Trustees Act 1962 as at 19 Jan 2007 (includes amendments listed above)
Statutes (Repeals and Miscellaneous Amendments) Act 2009 s. 126
8 of 2009 21 May 2009 22 May 2009 (see s. 2(b))
Standardisation of Formatting Act 2010 s. 4 19 of 2010 28 Jun 2010 11 Sep 2010 (see s. 2(b) and Gazette 10 Sep 2010 p. 4341)
Trustee Companies (Commonwealth Regulation) Amendment Act 2011 Pt. 3
39 of 2011 4 Oct 2011 26 Nov 2011 (see s. 2(b) and Gazette 25 Nov 2011 p. 4867)
Personal Property Securities (Consequential Repeals and Amendments) Act 2011 Pt. 3 Div. 5
42 of 2011 4 Oct 2011 30 Jan 2012 (see s. 2(c) and Cwlth Legislative Instrument No. F2011L02397 cl. 5 registered 21 Nov 2011)
Reprint 5: The Trustees Act 1962 as at 13 Jul 2012 (includes amendments listed above)

Short title Number and year Assent Commencement
Trustees Act 1962 78 of 1962(11 Eliz. II No. 78)
6 Dec 1962 1 Jan 1963 (see s. 2)
Decimal Currency Act 1965 113 of 1965 21 Dec 1965 Act other than s. 4-9: 21 Dec 1965 (see s. 2(1));s. 4-9: 14 Feb 1966 (see s. 2(2))
Trustees Act Amendment Act 1968 18 of 1968 16 Oct 1968 16 Oct 1968
Reprint of the Trustees Act 1962 approved 2 Jul 1971 (includes amendments listed above)
Age of Majority Act 1972 s. 6(2) 46 of 1972 18 Sep 1972 1 Nov 1972 (see s. 2 and Gazette 13 Oct 1972 p. 4069)
Inheritance (Family and Dependants Provision) Act 1972 s. 3(2)
57 of 1972 31 Oct 1972 1 Jan 1973 (see s. 2 and Gazette 17 Nov 1972 p. 4379)
Acts Amendment (Land Valuers) Act 1978 Pt. II 56 of 1978 6 Sep 1978 1 Jul 1979 (see s. 2 and Gazette 22 Jun 1979 p. 1677)
Reprint of the Trustees Act 1962 approved 14 Sep 1981 (includes amendments listed above)
Trustees Amendment Act 1987 84 of 1987 9 Dec 1987 s. 1 and 2: 9 Dec 1987;Act other than s. 1 and 2: 1 Sep 1988 (see s. 2 and Gazette 26 Aug 1988 p. 3271)
Local Government (Consequential Amendments) Act 1996 s. 4
14 of 1996 28 Jun 1996 1 Jul 1996 (see s. 2)
Trustees Amendment Act 1997 1 of 1997 6 May 1997 s. 1 and 2: 6 May 1997;Act other than s. 1 and 2: 16 Jun 1997 (see s. 2 and Gazette 10 Jun 1997 p. 2661)
Acts Amendment and Repeal (Financial Sector Reform) Act 1999 s. 108
26 of 1999 29 Jun 1999 1 Jul 1999 (see s. 2(1) and Gazette 30 Jun 1999 p. 2905)
Reprint of the Trustees Act 1962 as at 11 Jan 2002 (includes amendments listed above)
Acts Amendment (Equality of Status) Act 2003 Pt. 58
28 of 2003 22 May 2003 1 Jul 2003 (see s. 2 and Gazette 30 Jun 2003 p. 2579)
Statutes (Repeals and Minor Amendments) Act 2003 s. 122
74 of 2003 15 Dec 2003 15 Dec 2003 (see s. 2)
Criminal Law Amendment (Simple Offences) Act 2004 s. 82
70 of 2004 8 Dec 2004 31 May 2005 (see s. 2 and Gazette 14 Jan 2005 p. 163)
Limitation Legislation Amendment and Repeal Act 2005 s. 23
20 of 2005 15 Nov 2005 15 Nov 2005 (see s. 2)
Reprint 4: The Trustees Act 1962 as at 19 Jan 2007 (includes amendments listed above)
Statutes (Repeals and Miscellaneous Amendments) Act 2009 s. 126
8 of 2009 21 May 2009 22 May 2009 (see s. 2(b))
Standardisation of Formatting Act 2010 s. 4 19 of 2010 28 Jun 2010 11 Sep 2010 (see s. 2(b) and Gazette 10 Sep 2010 p. 4341)
Trustee Companies (Commonwealth Regulation) Amendment Act 2011 Pt. 3
39 of 2011 4 Oct 2011 26 Nov 2011 (see s. 2(b) and Gazette 25 Nov 2011 p. 4867)
Personal Property Securities (Consequential Repeals and Amendments) Act 2011 Pt. 3 Div. 5
42 of 2011 4 Oct 2011 30 Jan 2012 (see s. 2(c) and Cwlth Legislative Instrument No. F2011L02397 cl. 5 registered 21 Nov 2011)
Reprint 5: The Trustees Act 1962 as at 13 Jul 2012 (includes amendments listed above)
1a On the date as at which this reprint was prepared, provisions referred to in the
following table had not come into operation and were therefore not included in
compiling the reprint. For the text of the provisions see the endnotes referred to
in the table.

Provisions that have not come into operation
Short title Number and year Assent Commencement
Inheritance (Family and Dependants Provision)
Amendment Act 2011 s. 16 6
48 of 2011 25 Oct 2011 To be proclaimed (see s. 2(b))
2 Interpretation Act 1918 was repealed by the Interpretation Act 1984 .
3 Repealed by this Act; see Sch. 1.
4 Imperial Acts Adopting Ordinance 1867 (31 Vict. No. 8).
5 Marginal notes in the Trustees Act 1962 referring to legislation of other
jurisdictions have been omitted from this reprint.
6 On the date as at which this reprint was prepared, the Inheritance (Family and
Dependants Provision) Amendment Act 2011 s. 16 had not come into operation.
It reads as follows:
16. Trustees Act 1962 amended
(1) This section amends the Trustees Act 1962 .
(2) Delete section 63(10)(a) and insert:
(a) any claim under the Family Provision Act 1972 ; or
(3) In section 64(5) delete “ Inheritance (Family and Dependants
Provision) Act 1972 ,” and insert:
Family Provision Act 1972 ,
(4) Delete section 65(2)(a) and insert:
(a) an application under the Family Provision Act 1972 ; or
(5) Delete section 65(5)(a) and insert:
(a) where the claim is an application for an order under the
Family Provision Act 1972 , unless —
(i) the application is made within the period
specified in section 7(2)(a) of that Act; or
(ii) leave to file out of time has been given under
section 7(2)(b) of that Act;
or
Defined Terms
[This is a list of terms defined and the provisions where they are defined. The list is not part of the law.] Defined Term Provision(s)
administration expenses

104(5)
authorised insurer
26D(5)
bank
6(1)
bankrupt
6(1)
benefit
6(1)
bill of exchange
101(5)
claim
65(2)
contingent right
6(1)
continuing trustees
10(6)
conveyance
6(1)
Court
6(1)
deceased
104(1)
discretionary interest
90(5)
dwelling-house
24(5), 26D(5)
execute
6(1)
grant
62(4)
grantee
62(4)
hereditament
6(1)
housing loan
26D(5)
imperfect trust provision
102(1)
income
6(1)
independent valuer

28A(2)
instrument
6(1)
instrument of discharge
10(6)
insurance money
47(1)
land
6(1)
lease
6(1), 62(4)
lessee
62(4)
managing trustees
15(2)(b)
mines and minerals
6(1)
mortgage
6(1)
mortgagee
6(1)
new trustee
6(1)
payment
6(1)
person
6(1)
personal representative
6(1)
possessed
6(1)
possession
6(1)
prescribed interest in land
26D(5)
principal beneficiary
61(1), 90(5)
property
6(1)
protective trusts
90(5)
rent
6(1)

responsible trustee
14(3)
retiring trustees
10(6)
right
6(1)
RITS system
22(5)
sale
6(1)
securities
6(1)
securities payable to bearer
6(1)
settled property
104(1)
stock
6(1)
to convey
6(1)
to pay
6(1)
to sell
6(1)
transfer
6(1)
trust
6(1)
trustee
6(1), 7(9), 45(2)
trustee corporation
6(1)
trustee for sale
6(1)
trust for sale
6(1)
trust period
61(1)
underlying security
22(1)
vesting order
78(1)

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