Public Trustee Act 1930
[Long Title Amended by No. 20 of 1995, s. 3 and Sched. 1 ]An Act to consolidate and amend the law relating to the constitution and regulation of The Public Trustee
[Royal Assent 23 December 1930]
Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows:
PART I - Preliminary
[Section 1 Amended by No. 20 of 1995, s. 3 and Sched. 1 ]This Act may be cited as the Public Trustee Act 1930 .[Section 2 Repealed by 25 Geo. V No. 78 ]. . . . . . . .
(1) [Section 3 Subsection (1) amended by 25 Geo. V No. 78 ][Section 3 Subsection (1) amended by No. 35 of 1952, s. 2 ][Section 3 Subsection (1) amended by No. 51 of 1985, s. 4 and Sched. 2 ][Section 3 Subsection (1) amended by No. 3 of 1987, s. 4 ][Section 3 Subsection (1) amended by No. 20 of 1995, s. 3 and Sched. 1 ]In this Act, unless the contrary intention appears –[Section 3 Subsection (1) amended by No. 74 of 1999, Sched. 2, Applied:01 Jan 2000] bank means an authorised deposit-taking institution that is authorised under a law of the Commonwealth to carry on banking business and to call itself a bank;Board has the same meaning as in the Government Business Enterprises Act 1995 ;chief executive officer has the same meaning as in the Government Business Enterprises Act 1995 ;common fund means the common fund of the Public Trustee created by this Act;Court means the Supreme Court;director has the same meaning as in the Government Business Enterprises Act 1995 ;employee has the same meaning as in the Government Business Enterprises Act 1995 ;estate means any property under administration or held, managed, or controlled by the Public Trustee in any capacity whatsoever;executor or administrator includes administrator with the will annexed for general, special, or limited purposes;function includes duty;group investment fund means a group investment fund established under section 50A ;investment committee means the investment committee established as required by section 37 ;[Section 3 Subsection (1) amended by No. 3 of 2010, Sched. 1, Applied:01 Jul 2010] [Section 3 Subsection (1) amended by No. 23 of 2022, s. 90, Applied:24 Oct 2022]probate or letters of administration includes letters of administration with the will annexed for general, special, or limited purposes;Public Trustee means The Public Trustee established under section 4 ;[Section 3 Subsection (1) amended by No. 45 of 2003, Sched. 1, Applied:01 Jan 2004] Registrar means the Registrar of the Supreme Court;[Section 3 Subsection (1) amended by No. 45 of 2003, Sched. 1, Applied:01 Jan 2004] [Section 3 Subsection (1) amended by No. 9 of 2006, s. 4, Applied:01 Oct 2006] spouse, in relation to a person, includes the person who is in a significant relationship, within the meaning of the Relationships Act 2003 , with that person;[Section 3 Subsection (1) amended by No. 9 of 2006, s. 4, Applied:01 Oct 2006] trust instrument includes an order of a court that gives rise to a trust.(2) [Section 3 Subsection (2) inserted by No. 20 of 1995, s. 3 and Sched. 1 ][Section 3 Subsection (2) omitted by No. 19 of 2023, s. 12, Applied:21 Sep 2023] . . . . . . . .
PART II - [Part II Heading amended by No. 20 of 1995, s. 3 and Sched. 1 ]Constitution of the Public Trustee
[Section 4 Substituted by No. 20 of 1995, s. 3 and Sched. 1 ]The Public Trustee constituted as a corporation sole by this Act as in force immediately before 1 July 1995 is continued in force as a body corporate.
5. Delegation by chief executive officer
[Section 5 Substituted by No. 20 of 1995, s. 3 and Sched. 1 ]The chief executive officer may delegate to an employee any of his or her functions or powers, other than –[Section 5A Repealed by No. 20 of 1995, s. 3 and Sched. 1 ]. . . . . . . .(a) a function or power that has been delegated to the chief executive officer by the Board subject to the condition that the chief executive officer must not delegate it; and(b) this power of delegation.
[Section 6 Substituted by No. 20 of 1995, s. 3 and Sched. 1 ]A document signed or purporting to be signed by a director, chief executive officer or employee under a delegation from the Board or chief executive officer is evidence of that delegation unless the contrary is shown.
6A. Performance by Public Trustee of certain acts, &c.
[Section 6A Inserted by No. 20 of 1995, s. 3 and Sched. 1 ](1) Where any thing may or is required to be done by or in relation to the Public Trustee and that thing can only be done by or in relation to a natural person, that thing may be done by or in relation to the chief executive officer or an employee to whom the chief executive officer or Board has delegated the performance and exercise of functions and powers in respect of that thing.(2) Any powers conferred on the Public Trustee by a power of attorney may be exercised by the Board or a person to whom the Board has delegated that power.
7. Public Trustee substituted for Curator of Intestate Estates
(1) The Public Trustee shall be administrator of all and singular the real and personal estate, effects, and credits of every deceased person whose estate the Curator of Intestate Estates shall have been authorized to collect, manage, or administer, as fully as if letters of administration had been granted to the Public Trustee.(2) Wherever the expression "Curator of Intestate Estates" occurs in any Act, by-law, regulation, rule, document, deed, or instrument, the same shall be read and construed as if the expression "Public Trustee" were substituted therefor.(3) The operation of this section shall relate back to the commencement of the Public Trust Office Act 1912 .
[Section 8 Substituted by No. 20 of 1995, s. 3 and Sched. 1 ]A director, chief executive officer or employee must not divulge any information that came into his or her possession as a director, chief executive officer or employee except –[Section 9 Repealed by No. 20 of 1995, s. 3 and Sched. 1 ]. . . . . . . .(a) as is necessary in the performance of the office of director or in the course of employment; or(b) as authorised or required by law.
10. Employment of Australian legal practitioners, &c.
In determining the persons, other than bankers, to be engaged in relation to any trust, the Public Trustee shall, wherever practicable, take into consideration the wishes of the creator of the trust, and of the advisory trustee, if any, and of the beneficiaries, either expressed or implied by the practice of the creator of the trust, or in the previous management of the trust.
11. Fees charged to be as prescribed
(1) [Section 11 Subsection (1) substituted by No. 20 of 1995, s. 3 and Sched. 1 ]Notwithstanding anything to the contrary in the Government Business Enterprises Act 1995 or any other law, the Public Trustee may, in addition to any money properly expended by it and chargeable against an estate that is under the Public Trustee's administration or control, charge and receive for work done or services, goods or information supplied fees, commission, remuneration, expenses and charges determined by the Public Trustee but not exceeding any maximum fees, commissions, remunerations and charges prescribed in the regulations.(2) [Section 11 Subsection (2) substituted by No. 20 of 1995, s. 3 and Sched. 1 ]If the Public Trustee fails to set fees, commissions, remuneration, expenses and charges for the work done or services, goods or information supplied by it, the charges prescribed by the Public Trust Office Regulations 1971 as in force immediately before 1 July 1995 are taken to have been set by the Public Trustee.(2A) [Section 11 Subsection (2A) inserted by No. 20 of 1995, s. 3 and Sched. 1 ] Subsection (2) has effect only for the period commencing on 1 July 1995 and ending on 31 December 1995.(3) The incidence of the fees and expenses under this section, as between capital and income, shall be determined by the Public Trustee, but any person aggrieved by such determination may apply to the Court to review the same.
PART III - [Part III Heading amended by No. 20 of 1995, s. 3 and Sched. 1 ]The placing of estates in the Public Trustee
12. Power of persons to appoint The Public Trustee to act as trustee, executor, &c.
[Section 13 Repealed by No. 63 of 1963, s. 2 and Sched. 1 ]. . . . . . . .(1) Where any person or authority, within or without this State, now or hereafter has power to appoint a trustee, executor, administrator, guardian, committee, agent, attorney, or receiver, the Public Trustee may be so appointed.(2) The power to act as trustee shall include power to act as sole trustee for any of the purposes of the Settled Land Act 1884 .(3) [Section 12 Subsection (3) amended by No. 3 of 1987, s. 5 ][Section 12 Subsection (3) amended by No. 20 of 1995, s. 3 and Sched. 1 ]The power to act as agent or attorney includes the power so to act for the investment of money in the common fund or a group investment fund, for such period and on such terms and conditions as are agreed upon between the Public Trustee and the principal.(4) Save as is in this Act otherwise provided, the Public Trustee shall not accept any appointment jointly with any other person.
14. Administration by Public Trustee of benefit or relief funds
(1) In any case in which a fund is raised by public or private subscriptions for the benefit or relief of any person or class of persons –(a) the fund may be paid to the Public Trustee to be administered by him and to be invested in the common fund, unless the Court otherwise directs;(b) the Public Trustee may recognize as a committee any persons whom he believes to have been appointed or authorized in that capacity by a substantial number of subscribers;(c) the Public Trustee, after conferring with the committee, may apply to the Court for directions as to the administration of the fund, and for that purpose may submit a scheme to the Court for approval;(d) the Court may approve the scheme with or without modification as it thinks fit, or may give such other directions as it thinks fit;(e) the Public Trustee shall administer the fund in accordance with the scheme so approved or the directions so given;(f) on the application of the Public Trustee or of the Attorney-General on the relation of any member of the committee, or of any person claiming an interest in the fund, the Court at any time may vary the scheme or give directions on any point or question relating to the scheme or the fund;(g) the Public Trustee shall obey all such directions.(2) This section shall apply to funds raised before or after the commencement of this Act.
15. Executors, administrators, or trustees authorized to appoint Public Trustee to act in their places
[Section 15 Amended by 25 Geo. V No. 78 ](1) [Section 15 Subsection (1) substituted by No. 113 of 1973, s. 2 ]Except where he is expressly prohibited from so doing by the terms of the instrument under which he is acting –may appoint in writing the Public Trustee to act as executor or administrator respectively in his place.(a) an executor, whenever appointed and whether he has taken out probate or not; or(b) an administrator, whether the letters of administration are with the will annexed or otherwise and whenever the same were granted –(2) Whenever, under subsection (1) hereof, or under section 9 of the Public Trust Office Act 1912 , any executor or administrator with the will annexed appoints, or has appointed, the Public Trustee executor or such administrator, the Public Trustee shall, by force of such appointment, be also sole trustee if such executor or administrator were sole surviving trustee, or if there were no trustee appointed by the trust instrument or in existence.(3) Trustees, whenever appointed, and under whatsoever trust instrument appointed, may appoint the Public Trustee sole trustee, unless expressly prohibited, notwithstanding the terms of the trust as to the number of trustees; and executors, whose duties continue in the nature of a trusteeship after their administration is closed, shall be deemed, for the purposes of this subsection, to be trustees.(4) Where there are more trustees, executors, or administrators than one, any one trustee, executor, or administrator, as the case may be, may apply to the Court to have the Public Trustee appointed sole trustee, executor, or administrator, and such application may be made either before or after the will, if any, has been proved.(5) [Section 15 Subsection (5) amended by No. 63 of 1963, s. 2 and Sched. 2 ]Where the consent of any person is required for the appointment of a trustee, executor, or administrator, and such person refuses to consent to the appointment of the Public Trustee, or is an infant, or is permanently absent from this State, or is under any other disability, the Court may appoint the Public Trustee without such consent.
16. Power of trustee to pay moneys due to infants to Public Trustee
(1) Any trustee may pay any moneys due to any infant to the Public Trustee, and, by writing, direct the Public Trustee to account to such infant according to the provisions of the trust instrument, and such writing shall vest in the Public Trustee all the powers of such trustee in regard to such moneys.(2) Such trustee shall furnish the Public Trustee with a copy of the trust instrument, and the Public Trustee shall act in accordance therewith.(3) The writing referred to in subsection (1) of this section shall contain a certificate by the trustee that the amount so paid as aforesaid is the whole amount to which the infant is entitled under the trust instrument, and the Public Trustee shall not be concerned to inquire as to the truth of the statements contained in such writing.
17. Public Trustee entitled, on application, to administration of an intestate estate
(1) Where any person domiciled in this State, or who has property in this State, has died or dies intestate, the Public Trustee, if he thinks fit to apply therefor, shall be entitled as of right to administration of the estate of such person, unless –(a) administration thereof has been granted to some other person and the same is being administered by him; or(b) any person domiciled in this State who, but for this section, would be entitled to such administration, makes application therefor to the Court before the same is granted to the Public Trustee.(2) The Public Trustee, before making an application under this section, shall give public notice in the prescribed form of his intention so to do, and such notice shall be published fourteen days before the application is made.(3) Such notice as aforesaid shall be in lieu of, and shall take the place of, a citation, and it shall not be necessary for the Public Trustee to take out or publish a citation.
18. Power of Public Trustee to apply to administer testate estate if no application for probate or administration within three months after death
(1) Where any person domiciled in this State, or who has property in this State, has died or dies testate, and application for probate or letters of administration has not been made within three months after the death of such person, the Public Trustee may apply to the Court for letters of administration of the estate of such person, and the Court shall make such grant unless the person entitled to probate or letters of administration applies therefor, or shows to the satisfaction of the Court that the delay in making such application has been, and if the same continues that it still is, unavoidable or accidental.(2) On such application no costs shall be awarded against the Public Trustee.(3) On the application of any person entitled to probate or letters of administration with the will annexed who was out of this State when the grant to the Public Trustee was made, and who has not renounced or refused probate or administration, the Court may grant probate or letters of administration to such person in such manner and subject to such limitations or conditions as the Court thinks proper.(4) No such application shall be made until after fourteen days' notice in writing of the intention to apply for the same has been left at the office of the Public Trustee.(5) Upon the grant of probate or letters of administration to such person, all the powers, rights, duties, and liabilities of the Public Trustee, in any way relating to the estate thereby affected, shall cease, except as herein mentioned, and so much of such estate as has not then been administered by the Public Trustee shall vest in such person, subject to the payment to the Public Trustee of all moneys properly chargeable by him for commission, costs, charges, and expenses in relation to such estate, including all costs of and incidental to his application for probate or letters of administration.
19. Administration in other cases
(1) [Section 19 Subsection (1) amended by No. 14 of 1977, s. 2 ]Where any person domiciled in this State or who has property in this State has died, or shall hereafter die, the Court, on the application of the Public Trustee, may grant to him letters of administration of the estate of such person in any of the following cases:(a) Where such person leaves no executor willing and able to act in the execution of his will, and resident within the State;(b) Where every executor or administrator has died;(c) Where the estate or any portion thereof is liable to waste, and every executor or administrator or next-of-kin –or the executor, administrator, or next-of-kin has requested the Public Trustee in writing to apply for such letters of administration; or(i) is absent from the locality of the estate;(ii) is not known; or(iii) has not been found –(d) Where part of an estate already partly administered is unadministered owing to the disappearance or absence from this State, or the incapacity, of the executor or administrator, or where the executor or administrator has become bankrupt.(2) Upon an application by the Public Trustee under paragraph (d) of subsection (1) hereof, an absent or bankrupt executor or administrator may be discharged by the Court.
20. Administration of small estates without grant of probate or administration
(1) [Section 20 Subsection (1) amended by No. 9 of 2006, s. 5, Applied:01 Oct 2006] [Section 20 Subsection (1) amended by No. 3 of 1952, s. 2 ][Section 20 Subsection (1) amended by No. 55 of 1965, s. 5 ][Section 20 Subsection (1) amended by No. 51 of 1967, s. 2 ][Section 20 Subsection (1) amended by No. 14 of 1977, s. 3 ][Section 20 Subsection (1) amended by No. 76 of 1985, s. 3 ]Where any person domiciled in this State or who has property in this State has died, or dies, leaving property the gross value of which, as estimated by the Public Trustee, does not at the time of the election hereinafter mentioned exceed the prescribed amount, and no person has obtained probate or letters of administration, as the case may be, the Public Trustee may, in all cases in which he is entitled to apply for administration, in lieu thereof file in the office of the Registrar an election in writing to administer such estate, and setting forth–(a) the name, residence, and occupation, so far as then known to the Public Trustee, of such person at the date of his death;(b) the property forming the estate of such person so far as the same is then known to the Public Trustee;(c) the date of death of such person; and(d) if such person is believed by him to have died testate, that, after due inquiries, he believes that the document annexed to such election is the testator's last will, or an exemplification thereof, if probate of such will or other appropriate grant in respect thereof has been made out of the State, and that such will has been validly executed according to law.(2) On such election being filed the Public Trustee shall be deemed to be administrator or executor, as the case may be, of the property of the deceased person in all respects as if letters of administration or probate had been granted to him by the Court.(3) The Public Trustee shall publish in the Gazette a notice that he has made such election, and such notice shall be conclusive evidence that he is entitled to administer such estate.(4) [Section 20 Subsection (4) amended by No. 3 of 1952, s. 2 ][Section 20 Subsection (4) amended by No. 55 of 1965, s. 5 ][Section 20 Subsection (4) amended by No. 51 of 1967, s. 2 ][Section 20 Subsection (4) amended by No. 14 of 1977, s. 3 ][Section 20 Subsection (4) amended by No. 76 of 1985, s. 3 ][Section 20 Subsection (4) amended by No. 20 of 1995, s. 3 and Sched. 1 ]If the Public Trustee –file in the office of the Registrar a memorandum stating the fact, and revoking such election, and apply for letters of administration or probate, as the case may require.(a) [Section 20 Subsection (4) amended by No. 9 of 2006, s. 5, Applied:01 Oct 2006] after filing such election, finds that the gross value of the property to be administered exceeds the prescribed amount, he shall, as soon as practicable thereafter; or(b) at any time considers it desirable for any reason so to do he may –(5) If after filing such election the Public Trustee finds –he shall, as soon as practicable thereafter, file in the office of the Registrar a memorandum stating the fact and revoking such election; and thereupon such election shall be revoked accordingly, and the Public Trustee shall be at liberty to file a fresh election under this section, and the provisions of this section shall apply to such fresh election as if no previous election had been filed thereunder.(a) that the deceased person who was supposed to have died intestate has died testate; or(b) that the document annexed to such election as the testator's last will has been superseded by a later will, or for any reason is of no testamentary validity or effect –(6) A copy of any election filed under this section certified as a correct copy under the seal of the Court shall be equivalent to an exemplification for all purposes.
20A. Administration of small estates
[Section 20A Inserted by No. 8 of 1972, s. 2 ](1) [Section 20A Subsection (1) amended by No. 9 of 2006, s. 6, Applied:01 Oct 2006] [Section 20A Subsection (1) amended by No. 14 of 1977, s. 4 ][Section 20A Subsection (1) amended by No. 76 of 1985, s. 4 ]Where any person who has property in this State has died, or dies, and the net value of his estate of which the Public Trustee has knowledge does not, in the estimation of the Public Trustee, exceed the prescribed amount, the Public Trustee may, subject to subsection (2) of this section–(a) receive, call in, and convert into money, the property of the estate of that deceased person;(b) pay the debts and other liabilities of that person, of which he has notice; and(c) deal with the residue in all respects as if probate of the will or letters of administration of the estate of the deceased person had been granted to him.(2) Before proceeding in accordance with subsection (1) of this section in any case the Public Trustee shall –(a) be satisfied on such evidence as he considers sufficient –in respect of the estate of the deceased person; and(i) that no application has been lodged in this State for probate of the will or letters of administration; and(ii) that no election under section 10A of the Trustee Companies Act 1953 has been filed –(b) give such notice as he considers sufficient, by advertisement or otherwise, of his intention to so deal with the estate of the deceased person.(3) The Public Trustee is entitled to fees, commissions, charges, and remuneration in any case in which he deals with an estate in accordance with this section to the extent to which he would have been so entitled if probate of the will or letters of administration of the estate of the deceased person had been granted to him, and payment thereof is a first charge on the estate.(4) When complying with subsection (1) of this section the Public Trustee is deemed to be the executor or administrator, as the case may be, of the estate of the deceased person in all respects as if probate or letters of administration had been granted to him by the Court.(5) [Section 20A Subsection (5) amended by No. 9 of 2006, s. 6, Applied:01 Oct 2006] [Section 20A Subsection (5) amended by No. 14 of 1977, s. 4 ][Section 20A Subsection (5) amended by No. 76 of 1985, s. 4 ]If, when dealing with an estate in accordance with subsection (1) of this section, the Public Trustee finds that the net value of the estate of the deceased person remaining to be administered exceeds the prescribed amount he shall discontinue his administration of the estate under this section and may proceed as provided by this Act, other than this section, in respect of that part of the estate.(6) Notwithstanding any discontinuation of the administration of an estate of a deceased person by the Public Trustee under subsection (5) of this section, subsection (4) of this section applies to any disposal of any part of that estate in respect of the vesting of property made before such discontinuation.
21. Power of Public Trustee to exercise certain powers pending grant of probate or administration to person entitled thereto
(1) Where any person has died, or dies, leaving property in this State, and notwithstanding that some person other than the Public Trustee is appointed executor, or is entitled to letters of administration, the Public Trustee, if he thinks fit, pending the grant of probate or letters of administration, may file in the office of the Registrar an election in writing setting forth that he intends to exercise with respect to the estate of such person all such powers and authorities and do all such acts and things as he might have, exercise, or do, if such person had died intestate, and the Public Trustee had obtained letters of administration of his estate, and thereupon the Public Trustee may exercise such powers and authorities and do such acts and things accordingly.(2) The Public Trustee shall not, in any such case as aforesaid, sell, lease, exchange, mortgage, or partition any portion of the property, other than personal estate of a perishable nature, except by order of the Court made on his application.(3) Before filing an election under this section the Public Trustee shall give notice in writing or by telegram to any person in this State, known to the Public Trustee as a person who would be entitled to obtain probate or letters of administration, and not being an infant or a person of unsound mind, informing such person that he intends so to act unless such person proceeds to apply for probate or letters of administration forthwith.(4) If such person, within twenty-one days after the posting of such notice or the despatching of such telegram to him, does not give notice, in writing or by telegram, to the Public Trustee that he intends to apply for probate or letters of administration, or gives such notice, but fails for fourteen days thereafter to apply for the same, or if he makes such application and it fails, then, unless the Court otherwise orders, the Public Trustee may proceed to exercise any of the powers and authorities given by this section.(5) If more persons than one are entitled to take out probate or letters of administration, it shall be sufficient to give such notice as aforesaid to one of such persons only.(6) Where it is not known to the Public Trustee that there is in this State any person entitled to obtain probate or letters of administration, or in any case of emergency, of which the Public Trustee shall be the sole judge, the Public Trustee may exercise the powers and authorities conferred on him by this section without giving such notice as aforesaid.(7) All expenses incurred by the Public Trustee under this section shall be a first charge upon the property in relation to which the same are incurred.
22. Power of Public Trustee to act with advisory trustee
(1) In the administration of any trust the Public Trustee may act with an advisory trustee to the extent hereinafter provided.(2) An advisory trustee may be appointed –and a trustee who appoints the Public Trustee trustee in his place, under the provisions of this Act, may give to the Public Trustee, at the time of such appointment, notice in writing that he proposes to act as advisory trustee, and thereupon such trustee shall be deemed to have been appointed advisory trustee accordingly.(a) by the trust instrument;(b) by order of the Court made on the application of the Public Trustee, or of any beneficiary, or of any person on whose application the Court would have power to appoint a new trustee;(c) by any person having power to appoint a new trustee –(3) Where the Public Trustee acts with an advisory trustee the trust property shall be vested in the Public Trustee, and he shall have the sole management and administration thereof and of its trusts as fully and effectually as if he were the sole trustee.(4) In any such case as aforesaid the Public Trustee may consult the advisory trustee on any matter relating to the trust and the advisory trustee may advise the Public Trustee on any such matter.(5) In case of difference between the Public Trustee and the advisory trustee, either the Public Trustee or the advisory trustee may submit the matter in dispute to the Court, whose decision thereon shall be final, and shall bind both the Public Trustee and the advisory trustee.(6) No person dealing with the Public Trustee shall be concerned to inquire as to the concurrence or otherwise of the advisory trustee in any matter, or be affected by notice of the fact that the advisory trustee has not concurred therein.(7) The power of appointing a new advisory trustee when exercisable by the trustee shall be exercised by the advisory trustee alone, but the Public Trustee shall have power to apply to the Court for the appointment of a new advisory trustee.(8) Subject to the provisions of the trust instrument, an advisory trustee shall receive out of the estate such remuneration as may be prescribed.
The Public Trustee may be appointed as custodian trustee of any trust –(a) by the trust instrument;(b) by order of the Court made on the application of a beneficiary, 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.
24. Functions and powers of Public Trustee when acting as custodian trustee
[Section 24 Amended by No. 20 of 1995, s. 3 and Sched. 1 ]Where the Public Trustee is appointed as custodian trustee –(a) the trust property shall be vested in the Public Trustee as if he were the sole trustee, and for that purpose vesting orders may, where necessary, be made under the Trustee Act 1898 ;(b) the management of the trust property, and the exercise of all powers and discretions exercisable by the trustees of the trust, shall remain vested in the trustees other than the custodian trustee, who are hereinafter referred to as "the managing trustees";(c) as between the custodian trustee and the managing trustees, and without prejudice to the rights of any other persons, the custodian trustee shall have the custody of all securities and documents of title relating to the trust, but the managing trustees shall have free access thereto, and be entitled to take copies thereof or extracts therefrom;(d) 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, and for that purpose he shall execute all such documents and perform all such acts as the managing trustees in writing direct;(e) the direction referred to in paragraph (d) hereof shall mean the direction of both trustees where there are two managing trustees, or of the majority of the managing trustees where there are more than two;(f) the custodian trustee shall not incur any liability by acting on any such direction, but, if he is of opinion that any such direction conflicts with the trusts or is contrary to law, or is otherwise objectionable, he may submit the matter to the Court, whose decision thereon shall be final, and shall bind both the custodian trustee and the managing trustees;(g) the custodian trustee shall not be liable for any act or default of any of the managing trustees;(h) all actions and proceedings touching or concerning the trust shall be brought or defended in the joint names of the custodian trustee and the managing trustees, but the custodian trustee shall be liable for the costs thereof only so far as the trust property in its control shall extend;(i) no person dealing with the custodian trustee shall be concerned to inquire as to the concurrence or otherwise of the managing trustees in any matter, or be affected by notice of the fact that the managing trustees have not concurred therein;(j) the power of appointing a new managing trustee when exercisable by the trustees shall be exercisable by the managing trustees alone, but the custodian trustee shall have power to apply to the Court for the appointment of a new managing trustee;(k) 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 wish of the majority of the beneficiaries or that it is expedient on other grounds 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 under the circumstances may seem to the Court to be necessary or expedient;(l) in computing the number of managing trustees who may lawfully act or be appointed, neither an advisory trustee nor custodian trustee shall be included.(m) . . . . . . . .
24A. Directors responsible to Court
[Section 24A Inserted by No. 20 of 1995, s. 3 and Sched. 1 ]Where the Public Trustee has been granted probate or letters of administration and the Public Trustee is appointed and acts as a trustee, receiver or committee, the directors are individually and collectively in their own persons responsible to the Court, and, in their own persons, are liable, by process of attachment, commitment for contempt, or by other process, to all courts having jurisdiction in that behalf, for the proper discharge of their duties and for obedience to the rules, orders and decrees of those courts in the same manner and to the same extent as if the directors had personally been granted probate or letters of administration or had acted as executor, administrator, trustee, receiver or committee.
PART IV - Unclaimed Property
25. Powers of Public Trustee in respect of unclaimed property
[Section 25 Amended by 25 Geo. V No. 78 ](1) The Court at any time may make an order vesting any property in the Public Trustee, if in respect thereof the Court is satisfied that –(a) there are reasonable grounds to believe that the owner is permanently or indefinitely absent from the State, and has no agent in the State with authority to act on his behalf;(b) after sufficient inquiry the owner cannot be found, or it cannot be ascertained who is the owner;(c) it is not known whether the owner is living or dead, and there is no person in the State known to have authority to administer the property; or(d) the owner is dead and the whereabouts of his executors or administrators cannot be ascertained.(2) Such order as aforesaid may be made on the application, ex parte, of the Public Trustee, who shall hold such property, subject to this Act, upon trust for the owner thereof.(3) [Section 25 Subsection (3) amended by No. 45 of 2003, Sched. 1, Applied:01 Jan 2004] Upon the application of the Public Trustee, or of any person interested, the Court may make an order directing the Public Trustee to apply such property or any portion thereof in such manner for the benefit of the spouse or children of such owner as the Court shall think fit.
26. Expenses incurred by Public Trustee to be a charge upon property
[Section 26 Amended by No. 20 of 1995, s. 3 and Sched. 1 ]All expenses properly incurred by the Public Trustee in connection with such property as aforesaid shall be a charge upon such property and, notwithstanding anything to the contrary in the Government Business Enterprises Act 1995 , bears interest at a rate determined by the Public Trustee but not exceeding any maximum rate prescribed by the regulations, and such charge shall come next in priority to any mortgage or charge to which such property is subject when it becomes vested in the Public Trustee.
27. Public Trustee to advertise notice of vesting
[Section 27 Amended by 25 Geo. V No. 78 ]On any such property becoming vested in him the Public Trustee shall publish in the Gazette and in a newspaper a notice of such vesting.
28. Rescission of order on application of owner, &c.
The owner of any such property, or any person having any interest in such property or in any part thereof, at any time after the making of the order hereinbefore mentioned, on notice to the Public Trustee, may make application to the Court to rescind the said vesting order, and the same may thereupon be rescinded accordingly on such terms as the Court thinks fit; but no such rescission shall affect any charge acquired by the Public Trustee under this Act, or the validity of any act or thing done by the Public Trustee during the continuance of the said order and in pursuance thereof.
29. Order not affected by mistake of fact
No such order as aforesaid, and nothing done in pursuance of any such order, shall be or become invalid or inoperative for the reason only that it has been made or done under a mistake of fact, or because the owner of such property is dead at the time when the order is made or has died since the making thereof, or because of any disposition of such property made by the owner thereof during the subsistence of the order.
PART V - General duties and powers of the Public Trustee
30. General duties and powers of Public Trustee
(1) Subject to this Act the duties and rights of the Public Trustee, when acting in any capacity under this Act, shall be the same as those of a private person acting in the like capacity.(2) The Public Trustee may decline, either absolutely or except upon conditions, to accept any appointment under this Act, but shall not so decline on the ground only of the small value of the property concerned.(3) Upon any appointment of the Public Trustee under this Act, all estates, rights, powers, and functions in and with respect to the subject-matter of such appointment, shall, by virtue of such appointment, and without other assurances in the law, become thereby vested in the Public Trustee.(4) If the Public Trustee declines to accept any appointment under this Act, notice thereof shall be sent to such persons as the Public Trustee thinks fit.(5) If any property has become, by virtue of an appointment which the Public Trustee declines to accept, vested in the Public Trustee, then, by virtue of such refusal, such property shall cease to be vested in the Public Trustee, and shall become vested in such persons as would have been entitled thereto if such appointment had not been made; and the Public Trustee may execute and do all such instruments and things as may be necessary to give effect to such refusal.(6) [Section 30 Subsection (6) amended by No. 20 of 1995, s. 3 and Sched. 1 ]The evidence of acceptance or refusal of any appointment shall be conclusive if such acceptance or refusal is in writing.
31. Power of Public Trustee instead of appointing new trustee to elect to act as such
[Section 31 Amended by 25 Geo. V No. 78 ](1) [Section 31 Subsection (1) amended by No. 20 of 1995, s. 3 and Sched. 1 ]Where under any instrument or statute the Public Trustee is empowered to appoint a new trustee, he may, in lieu of making such appointment, in writing, elect to act as such new trustee.(2) Any such election as aforesaid shall have the same effect and operate in the same manner as if the Public Trustee had been appointed the sole trustee by some other person acting under the authority of the empowering instrument or statute.
32. Express powers of Public Trustee
[Section 32 Amended by 25 Geo. V No. 78 ](1) [Section 32 Subsection (1) amended by No. 55 of 1965, s. 5 ][Section 32 Subsection (1) amended by No. 76 of 1985, s. 5 ][Section 32 Subsection (1) amended by No. 20 of 1995, s. 3 and Sched. 1 ]Subject to this Act and to the provisions of any trust instrument, the Public Trustee, for any of the purposes of this Act, unless expressly prohibited by or under the trust instrument, at his discretion, and in addition to, and not in restriction of, any other powers under this Act, or any other Act or otherwise, may exercise the following powers:(a) Sell, or concur with any other person in selling, property by public auction or private contract, all together or in parts, and subject to such conditions as he thinks fit;(b) Purchase in fee simple lands in this State;(c) Postpone the sale, calling-in, and conversion of any real or personal estate for so long as he thinks fit, notwithstanding that it may be of a wasting, speculative, or reversionary nature;(d) On the sale (whether under any power of sale as mortgagee or otherwise) of any real or leasehold estate, subdivide the same into allotments, and for that purpose construct and dedicate all such roads, footpaths, and streets, and do all such other things, as he thinks necessary, or as are required by any law relating to subdivisions;(e) Exchange property or join in a partition of property;(f) Grant easements and enter into party-wall agreements;(g) In exercising any power of sale conferred by this or any other Act, or by any instrument –(i) grant a lease of the property with an optional or compulsory purchase clause;(ii) sell any buildings, fixtures, timber, or other things affixed to land apart from the land itself;(iii) agree to the cancellation or variation of any contract or agreement for the sale and purchase of any property upon such conditions as he thinks proper;(h) Lease, or concur in leasing, property for a term not exceeding twenty-one years, to take effect in possession at a reasonable yearly rental with or without a fine, premium, or foregift, provided that, should any such fine, premium, or foregift be taken, the amount thereof shall be deemed to be part of 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;(i) Surrender, or concur in surrendering, any lease, and accept a new lease;(j) Accept a lease of any property at such rent, and upon such terms and conditions, as he shall think fit;(k) Insure against fire, accident, or loss any property without obtaining the consent of any person who may be entitled to the use, occupation, or enjoyment of such property, and recover the costs of so doing from the person entitled to such use, occupation, and enjoyment;(l) Expend money for the repair, maintenance, upkeep or renovation of any property, without obtaining the consent of any person having any estate or interest therein, and apportion the cost thereof between corpus and income or otherwise among the persons beneficially entitled thereto in such manner as to him seems equitable;(m) Where in any estate under his administration he holds any life policy, and there are not sufficient funds to keep the same on foot, he may surrender such policy, and may in any such case accept in lieu thereof a fully paid-up policy;(n) Pay rates, taxes, assessments, insurance premiums, and other outgoings;(o) Borrow money upon the security of property, and secure the payment thereof and interest by mortgage or charge of such property, with or without a power of sale, and enter into such covenants, provisions, and agreements as may be agreed upon by him and the mortgagee. The power to give such security shall extend to any debt or liability incurred before the date of the Public Trustee's appointment, and he may pay the interest secured by such mortgage or charge out of the income, or, if such income be insufficient, out of the capital;(p) Exercise powers of appointment and give consents as fully as the person whom he represents could have exercised or given the same;(q) Grant powers of attorney to any person in or out of this State to do any act or thing which he could do;(r) Appropriate any part of the estate in or towards satisfaction of any legacy or share, whether settled, contingent, or absolute, to which any person is entitled, and for that purpose value the whole or any part of the estate in such manner as he thinks fit: Provided that, before any such appropriation is effectual, notice thereof shall be given to all persons sui juris who are interested in such appropriation, any of whom, within one month after receipt of such notice, may apply to a judge to vary the same, and such appropriation shall be conclusive save as otherwise directed by the judge: Provided further that, where the person interested is out of the jurisdiction, the said period of one month may be extended by a judge for such period as he may think fit on the application of the Public Trustee or of any person interested;(s) Bring or defend any action or other proceeding and suffer judgment to go by default or consent to any judgment or order in such action or proceeding upon such terms as he thinks fit;(t) Take part in any liquidation proceedings, or take proceedings to cause a person to be adjudicated a bankrupt, or a company to be wound up, and vote and act either personally or by proxy at any meetings of creditors of any person or company, or of shareholders of any company, whether the company is being wound up or not;(u) Institute criminal proceedings concerning property;(v) Pay debts, obligations, costs, and expenses, including funeral charges, within the meaning of this Act;(w) Carry out contracts entered into before or after the date of his appointment;(x) Consult with and employ such persons as he deems expedient for advising or assisting him in the administration or management of any estate, and remunerate any such person in such manner as he thinks fit;(y) [Section 32 Subsection (1) amended by No. 9 of 2006, s. 7, Applied:01 Oct 2006] Expend portion of the capital of any estate under his administration on the improvement or development thereof, and for the like purpose advance money on the security of such estate, but where the amount to be so expended or advanced exceeds the prescribed amount the same shall not be expended or advanced except upon an order of the Court;(z) [Section 32 Subsection (1) amended by No. 9 of 2006, s. 7, Applied:01 Oct 2006] Inspect all returns lodged with the Commissioner of State Revenue under any Act relating to Land Tax or Income Tax by a person whose estate is under administration by the Public Trustee and take copies thereof;(za) Retire from the trusteeship of an estate, the interests of which are in conflict, involving litigation, with those of another estate of which he is trustee;(zb) Do or omit all acts and things and execute all instruments necessary to carry into effect any of his powers and authorities.(2) [Section 32 Subsection (2) amended by No. 55 of 1965, s. 5 ][Section 32 Subsection (2) amended by No. 51 of 1967, s. 3 ][Section 32 Subsection (2) amended by No. 14 of 1977, s. 5 ][Section 32 Subsection (2) amended by No. 76 of 1985, s. 5 ][Section 32 Subsection (2) omitted by No. 9 of 2006, s. 7, Applied:01 Oct 2006] . . . . . . . .(3) On the application of the Public Trustee the Court may make such order as aforesaid and the same may apply generally to the property to be affected as aforesaid or to such part thereof as the Court may think proper.(4) [Section 32 Subsection (4) omitted by No. 9 of 2006, s. 7, Applied:01 Oct 2006] . . . . . . . .(5) In any criminal proceedings instituted by the Public Trustee as hereinbefore provided, the property to which the same relate shall be deemed, until the contrary is proved, to be the property of the Public Trustee and in his possession.
33. Shares of infants during infancy
Subject in each case to the terms of the trust instrument, where the Public Trustee is the trustee of an estate, he shall hold the shares of any infant beneficiaries therein as trustee for such infants until such infancy ceases, and such shares shall be dealt with and administered in the meantime under this Act.
34. Power of Public Trustee to apply income and capital for maintenance, &c., of infant
[Section 34 Amended by 25 Geo. V No. 78 ](1) [Section 34 Subsection (1) amended by No. 55 of 1965, s. 5 ][Section 34 Subsection (1) amended by No. 14 of 1977, s. 6 ]Where any property is held by the Public Trustee in trust for an infant, the Public Trustee in his discretion may apply –for the maintenance, education, and advancement or otherwise for the benefit of such infant, during minority.(a) the whole or any part of the income of the share to which such infant is entitled in possession; and(b) [Section 34 Subsection (1) amended by No. 9 of 2006, s. 8, Applied:01 Oct 2006] any part of the capital of the share to which the infant is entitled in possession or remainder immediately expectant on a prior life-interest, not exceeding in the whole one-half of such capital or the prescribed amount whichever is the greater, but no such application of a share in remainder shall be made without the previous consent in writing of the person on whose death such prior interest is determinable–(2) The provisions of subsection (1) hereof shall not apply to a case where provision is expressly made by the trust instrument –(a) for the maintenance, education, advancement, or otherwise for the benefit of an infant; or(b) prohibiting such application.(3) Where any property is held by the Public Trustee in trust for an infant, either for life or for any greater interest, contingently upon the infant attaining a specified age, or on the occurrence of any event before attaining that age, the Public Trustee, in his discretion, may apply for or towards the infant's maintenance, education, advancement, or benefit, the income of such property, or any part thereof, whether or not there is any fund available for such purpose, or any person bound by law to provide for the infant's maintenance or education.(4) The Public Trustee shall accumulate all the residue of the income mentioned in subsection (3) hereof, together with compound interest thereon, by investing the same and the resulting income thereof, and shall hold such accumulations for the benefit of the persons who ultimately become entitled to the property from which the same arise; but the Public Trustee, at any time, in his discretion, may apply such accumulations or any part thereof as if the same were income arising in the then current year.(5) Where trust property is made payable to a class of persons who, on respectively reaching a specified age, or on the happening of a specified event, would become entitled in possession to a share of such property and who respectively might become entitled, by survivorship or otherwise, to the shares of the other members of the class, then the Public Trustee, with the consent of the persons having prior estates or interests in the property and of any members of the class who have become entitled as aforesaid, may apply the presumptive or contingent share of any infant belonging to such class for the maintenance, education, or benefit of such infant.(6) The power conferred by subsection (5) hereof may be exercised, although future members of the class may come into existence subsequently, and whether the property consists of capital or income, and whether or not the income is directed to be accumulated.(7) The Public Trustee may decline to exercise such power as last aforesaid without an order of the Court for that purpose, which order the Court, on his application, is hereby empowered to make.(8) Instead of himself applying income or capital under this section, the Public Trustee may pay the same to any person to be so applied without seeing to the application or being answerable for the misapplication or non-application thereof.
35. Saving of court's jurisdiction
Nothing in this Act shall restrict any court having jurisdiction from making any order for the application of either capital or income for the maintenance, education, advancement, or otherwise for the benefit of an infant.
36. Public Trustee may be appointed to represent parties in legal proceedings
[Section 36 Substituted by No. 14 of 1977, s. 7 ](1) The Public Trustee may, with his consent, be appointed or directed by a court to represent a party in any proceedings in that court or a person or class of persons interested in those proceedings.(2) [Section 36 Subsection (2) amended by No. 66 of 2007, Sched. 1, Applied:31 Dec 2008] Where an appointment or direction is made under subsection (1) , the Public Trustee is entitled to be represented in the relevant proceedings, and the costs and expenses of his representation, as between Australian legal practitioner and client, and a reasonable fee for his services shall be paid to the Public Trustee out of any estate, funds, or property the subject of the proceedings, or otherwise as the court thinks fit.
36A. Dealing with unclaimed moneys
[Section 36A Inserted by No. 51 of 1967, s. 4 ](1) [Section 36A Subsection (1) amended by No. 23 of 2009, s. 41, Applied:16 Jun 2009] Where any moneys forming part of an estate have become payable (whether before or after the commencement of this section) to any person and, for a period of five years after becoming so payable, have remained unclaimed by the person entitled thereto, those moneys may be paid into the common fund (unless they already form part thereof) and, subject to this Act, shall not be paid over to any person except with the approval of the Public Trustee.(2) [Section 36A Subsection (2) amended by No. 23 of 2009, s. 41, Applied:16 Jun 2009] [Section 36A Subsection (2) amended by No. 68 of 1994, s. 3 and Sched. 1 ]Notwithstanding anything in subsection (1) of this section, where the moneys referred to therein have, for a further period of six years after the period referred to therein, remained unclaimed by the person entitled thereto, the Public Trustee shall pay those moneys to the Treasurer to the credit of the Public Account.(3) [Section 36A Subsection (3) substituted by No. 23 of 2009, s. 41, Applied:16 Jun 2009] If a claim is made for a sum of money that has been paid into the Public Account pursuant to subsection (2) , the Treasurer may, without further appropriation than this section, pay that sum to the claimant if satisfied on the advice of the Public Trustee that the claim is valid.(4) [Section 36A Subsection (4) amended by No. 23 of 2009, s. 41, Applied:16 Jun 2009] Where any moneys are required to be paid to the Treasurer under subsection (2) of this section no claim may be made under subsection (3) of this section after the expiration of ten years from the date on which they were required to be so paid.(5) Where any moneys are paid into the common fund under subsection (1) of this section they shall be treated as a separate estate for the purposes of this Act and as forming the capital moneys of that estate.(6) References in this section to moneys and to the payment of moneys shall be construed as including references respectively to securities and the transfer or delivery of those securities, and references in this section to moneys payable to any person shall be construed as including references to the interest arising, since those moneys became so payable, from the investment of those moneys.
PART VI - Accounts and investments
[Section 37 Substituted by No. 20 of 1995, s. 3 and Sched. 1 ](1) The Board must establish an investment committee under section 16 of the Government Business Enterprises Act 1995 .(2) The investment committee has the following functions:(a) advising the Board on the investment of money in the common fund and in any group investment fund;(b) advising the Board on the investment of money not in the common fund but held by the Public Trustee in trust;(c) any other function delegated to it by the Board.
(1) [Section 38 Subsection (1) amended by No. 36 of 1958, s. 4 and Sched. 3 ][Section 38 Subsection (1) amended by No. 20 of 1995, s. 3 and Sched. 1 ]Subject to this Act all capital moneys, however arising, vested in the Public Trustee, shall become one common fund, and shall be invested as provided by section forty .(2) Investments made from the common fund shall not be made in the name, or on account of, any particular estate.(3) Subject to this Act, interest earned by such investments shall be paid into the common fund.(4) [Section 38 Subsection (4) amended by No. 20 of 1995, s. 3 and Sched. 1 ]The interest payable to the respective estates, the moneys of which form the common fund, shall be at such rate as may be determined by the Board.(5) [Section 38 Subsection (5) omitted by No. 20 of 1995, s. 3 and Sched. 1 ]. . . . . . . .
39. Special investments outside common fund
(1) [Section 39 Subsection (1) amended by No. 76 of 1985, s. 6 ]The following moneys shall not form part of the common fund:(a) Moneys directed to be invested in some other specified manner, whether or not investment in the common fund be expressly excluded;(b) Moneys which the Court, on the application of any beneficiary, directs shall not form part of the common fund;(c) Moneys which the Public Trustee determines shall not form part of the common fund.(2) [Section 39 Subsection (2) substituted by No. 76 of 1985, s. 6 ][Section 39 Subsection (2) amended by No. 3 of 1987, s. 6 ][Section 39 Subsection (2) amended by No. 20 of 1995, s. 3 and Sched. 1 ]Moneys which do not form part of the common fund shall be invested –but any loss or deficiency in respect of any such investment, or of the money received from or by such investment, shall be borne by the estate to which the moneys belong.(a) in the case of moneys referred to in subsection (1) (a) , in such manner as is specified in the relevant direction;(b) in the case of moneys referred to in subsection (1) (b) , in such manner as the Court may direct; or(c) in the case of moneys referred to in subsection (1) (c) –(i) in a group investment fund;(ii) in any manner in which trustees are authorized to invest trust funds under the Trustee Act 1898 ; or(iii) in contributory first mortgages of real estate in Tasmania –
[Section 40 Amended by No. 3 of 1952, s. 3 ][Section 40 Substituted by No. 20 of 1995, s. 3 and Sched. 1 ][Section 40A Repealed by No. 20 of 1995, s. 3 and Sched. 1 ]. . . . . . . .(1) All money in the common fund may be invested –(a) in a manner in which trustees are authorised to invest trust funds under the Trustee Act 1898 ; and(b) in advances under section 44 .(2) An investment of money under subsection (1) may be varied.
41. Treasurer may meet deficiency in common fund
[Section 41 Amended by No. 8 of 1972, s. 5 ][Section 41 Amended by No. 40 of 1991, s. 7 ][Section 41 Amended by No. 20 of 1995, s. 3 and Sched. 1 ][Section 41 Amended by No. 4 of 2017, Sched. 1, Applied:01 Jul 2019] If the common fund is insufficient to meet all the lawful claims thereon, the Treasurer, without further appropriation than this Act, shall pay such sum out of the Public Account as may be necessary to meet the deficiency, to the extent to which its reserves are insufficient for that purpose.
42. Money to be paid into Public Trustee's Account
[Section 42 Amended by No. 8 of 1972, s. 6 ][Section 42 Amended by No. 40 of 1991, s. 8 ][Section 42 Amended by No. 20 of 1995, s. 3 and Sched. 1 ]All moneys being part of or accruing out of property placed in the Public Trust Office, and all moneys received by the Public Trustee, or any other person on account of the said office, shall be paid into a bank account called the "Public Trustee's Account".
43. Payments to Public Trustee
Every person, into whose hands or under whose control any moneys come which are payable to the Public Trustee, shall pay the same to the Public Trustee as soon as practicable after their receipt.
44. Advances for administration purposes or against shares
[Section 45 Repealed by No. 20 of 1995, s. 3 and Sched. 1 ]. . . . . . . . [Section 46 Repealed by No. 20 of 1995, s. 3 and Sched. 1 ]. . . . . . . . [Section 47 Repealed by No. 20 of 1995, s. 3 and Sched. 1 ]. . . . . . . . [Section 47A Repealed by No. 40 of 1991, s. 9 ]. . . . . . . . [Section 47B Repealed by No. 40 of 1991, s. 9 ]. . . . . . . . [Section 48 Repealed by No. 40 of 1991, s. 9 ]. . . . . . . . [Section 49 Repealed by No. 20 of 1995, s. 3 and Sched. 1 ]. . . . . . . . [Section 50 Repealed by No. 20 of 1995, s. 3 and Sched. 1 ]. . . . . . . .(1) The Public Trustee may make advances out of the Public Trustee's Account for the payment of expenses necessarily incurred by him in the administration of an estate.(2) In any case where there is to the credit of an estate any property, whether capital or income, but there is no money or not sufficient money available to make payments required to be made on account of such estate, whether to the persons entitled to such estate or to a share or interest therein or otherwise, the Public Trustee may advance and pay, out of the Public Trustee's Account, for or on account of such estate any sum of money, not exceeding in the whole one-half of the total value of such property, which he is authorized or required to pay.(3) Where an estate is in the Public Trust Office, and any person entitled to a share therein desires an advance against such share, the Public Trustee may make advances to that person not exceeding in the whole one-half of the value of such share as estimated by the Public Trustee.(4) All sums so advanced, with all interest thereon, shall be a first charge upon all the property of the estate or the share against which the advance is made, as the case may be, and shall bear interest at such rate as may be fixed by the Public Trustee. This provision shall relate back to the commencement of the Public Trust Office Act 1912 .(5) All interest received under this section shall be paid into the common fund.(6) [Section 44 Subsection (6) amended by No. 20 of 1995, s. 3 and Sched. 1 ]A certificate under the seal of the Public Trustee, stating the amount owing for advances and interest on any specified date by the estate or person to whom the advances were made, and the share against which they were made, shall, according to its tenor, be sufficient evidence of the facts until the contrary is proved.
PART VIA - Group Investment Funds[Part VIA Inserted by No. 3 of 1987, s. 7 ]
50A. Establishment, &c., of group investment funds
[Section 50A Inserted by No. 3 of 1987, s. 7 ](1) The Public Trustee may from time to time establish and keep, in addition to and separately from the common fund, one or more funds, each of which shall be called a group investment fund, and, where more than one group investment fund is so established, each such fund shall be given an appropriate distinguishing name or number.(2) [Section 50A Subsection (2) amended by No. 20 of 1995, s. 3 and Sched. 1 ]All money forming part of a group investment fund shall be invested in such investments as the Public Trustee determines, being –(a) [Section 50A Subsection (2) amended by No. 1 of 1999, s. 4, Applied:07 Apr 1999] investments authorized by the Trustee Act 1898 ; or(b) contributory first mortgages of real estate in Tasmania.(3) Investments made from money forming part of a group investment fund shall not be made on account of, or belong to, any particular estate or principal, but the Public Trustee shall cause to be kept an account showing at all times the entitlement of each estate and principal in that fund.(4) Where any money, being –is lawfully invested in an investment in which a group investment fund may be invested, the Public Trustee may transfer that investment to that fund and give credit in that fund to the relevant estate or principal (as the case requires) for the fair market value of the investment at the time of the transfer, and, upon being so transferred, that investment shall cease to belong to that estate or principal.(a) [Section 50A Subsection (4) amended by No. 33 of 1996, Sched. 1, Applied:01 Sep 1997] money in an estate that is vested in the Public Trustee or of which the Public Trustee is administrator under the Guardianship and Administration Act 1995 ; or(b) money in relation to which the Public Trustee has the power to act as agent or attorney under section 12 –(5) For the purposes of subsection (4) , the fair market value at the time of its transfer to a group investment fund of an investment of a kind usually traded on a stock exchange shall be taken to be the value so certified by a member for the time being of the Hobart Stock Exchange Limited, and such a certificate, if given and acted upon in good faith, shall be conclusive.(6) The Public Trustee may, in his discretion, withdraw any amount for the time being to the credit of an estate or principal in a group investment fund –(a) for the purpose of investing that amount on the separate account of that estate or principal, in another group investment fund, or in the common fund; or(b) for any other purpose relating to the exercise and discharge of his duties, powers, authorities, and functions.(7) Where amounts are withdrawn from a group investment fund in pursuance of subsection (6) –(a) they may, in the discretion of the Public Trustee, be paid or provided in cash or rateably in investments or partly in cash and partly rateably in investments; and(b) no person shall, as from the date of their withdrawal, have any claim on that fund in respect of those amounts for interest or otherwise.(8) Any profit or loss upon the realization of any investment in a group investment fund shall be credited or debited (as the case requires) to that fund.
50B. Income and capital of group investment funds
[Section 50B Inserted by No. 3 of 1987, s. 7 ](1) [Section 50B Subsection (1) amended by No. 20 of 1995, s. 3 and Sched. 1 ]The Public Trustee shall, in respect of each group investment fund –(a) pay or allocate the income of that fund proportionately to or among the estates and principals entitled to the amounts invested in the fund according to the amounts of their several interests in the fund and the period for which they remain invested in the fund; and(b) hold the capital of the fund proportionately for the estates and principals entitled to the amounts invested in the fund according to the amounts of their several interests in the fund.(2) . . . . . . . .[Section 50B Subsection (2) omitted by No. 20 of 1995, s. 3 and Sched. 1 ]
50C. Powers of Public Trustee in respect of group investment funds
[Section 50C Inserted by No. 3 of 1987, s. 7 ]Subject to this Part, the Public Trustee may exercise, in respect of the investments and money forming part of a group investment fund –(a) all the powers which he could exercise if the investments and money were not part of a group investment fund; and(b) such further powers as may be conferred on the Public Trustee by the Court, being powers which could be conferred on the Public Trustee by the Court if the investments and money were not part of a group investment fund.
50D. Other duties, &c., of Public Trustee not affected
[Section 50D Inserted by No. 3 of 1987, s. 7 ]Except as otherwise expressly provided in this Part, nothing in this Part shall affect the rights, powers, and duties of the Public Trustee.
50E. Investment in group investment fund deemed to be authorized trustee investment
[Section 50E Inserted by No. 3 of 1987, s. 7 ]An investment made by the Public Trustee in a group investment fund, including, in particular –shall be taken, for the purposes of any law or of any order of a court, to be an investment authorized by section 5 of the Trustee Act 1898 .(a) the investment of money in that fund in exercise of the power conferred by section 12 (3) or 39 (2) ; and(b) the giving to an estate of credit in that fund for the fair market value of an investment transferred to that fund from that estate under section 50A (4) or from another group investment fund under section 50A (6) –
PART VII - Miscellaneous
51. Public Trustee not required to give bond
No bond or other security shall be required from the Public Trustee in relation to his appointment to or acting in any office or capacity pursuant to this Act or any other Act.
52. Power of Public Trustee to hold and be registered as holder of shares, &c., in companies
(1) The entry of the Public Trustee by that name in the register of shareholders of a company shall not constitute notice of a trust.(2) No company shall refuse to enter the name of the Public Trustee in its register of shareholders by reason only that the Public Trustee is a trustee or is a corporation.(3) Where any estate which is being administered by the Public Trustee consists wholly or partly of shares in any body, whether corporate or not, or in any association, or where such shares are vested in the Public Trustee under the terms of any trust instrument, or are purchased by him in the exercise of any trust, direction, or authority imposed or conferred upon him, notwithstanding any law affecting the registration of persons holding shares as trustees or in any other representative capacity, the Public Trustee shall be entitled to be registered as the proprietor of such shares as trustee or in any other representative capacity as he may require.(4) The liability of the Public Trustee in respect of any such shares as aforesaid shall not in any case exceed the value of the other assets, which, when any demand is made for the satisfaction of any such liability, he holds in trust for the person beneficially entitled to such shares.(5) If such assets as aforesaid are insufficient to meet such liability, then such body or association and any person lawfully acting on its behalf shall have the same rights and remedies, in respect of any unpaid balance of such liability, against any such person so beneficially entitled as if the latter were the registered proprietor of such shares.(6) The Public Trustee, upon registration, shall for all purposes, excepting such liability as aforesaid, be deemed to be the registered proprietor of any such shares, and neither the body nor association aforesaid, nor any person dealing with the Public Trustee, shall be concerned to see or inquire whether any sales, dealings, or transactions by or with the Public Trustee are or are not within his powers.(7) In this section the term shares includes debentures and debenture stock.(8) Notwithstanding the provisions of any Act, charter, deed of settlement, or other instrument, the number of shares in the capital of any bank that may be held by the Public Trustee in his corporate capacity shall not be subject to any limit.
53. Disclosure, &c., of property
[Section 53 Amended by 25 Geo. V No. 78 ]Where –and such property, shares, or debts are vested in or belong to the Public Trustee, it shall be obligatory on such corporation, association, or partners, or the person so indebted to give notice forthwith to the Public Trustee of the extent, nature, and situation of such property, or of the fact and extent of such indebtedness.(a) any corporation, association, or person is in possession of any property;(b) there is to the credit of any person living or dead, in the books or accounts or otherwise of any corporation, association, or partnership, any property;(c) under any partnership or association any person is entitled to share in the assets thereof or his representatives are entitled to any payments as his share in such assets;(d) any person, whether living or dead, is the registered proprietor of any shares in any corporation or association; or(e) any person is indebted to any person whether living or dead –
(1) [Section 54 Subsection (1) amended by No. 55 of 1965, s. 5 ][Section 54 Subsection (1) amended by No. 14 of 1977, s. 8 ]In any case where the Public Trustee believes, on reasonable grounds, that any person has in his possession or under his control any personal property to which the Public Trustee is entitled, the Public Trustee may apply to the Court for a summons calling upon such person to furnish full particulars of such property and the nature and extent thereof.(2) Upon the hearing of any such summons the Court may make such order as to any such property, and as to the transfer, delivery, or payment thereof to the Public Trustee or otherwise as the Court may think necessary.(3) If, upon the hearing of any such summons, the Court is of opinion that the matter is one which should not be determined upon such summons, the Court may dismiss the application upon such terms as to costs as it may think fit.
55. Right of Public Trustee to costs in legal proceedings
[Section 55 Amended by No. 20 of 1995, s. 3 and Sched. 1 ][Section 55 Amended by No. 66 of 2007, Sched. 1, Applied:31 Dec 2008] In any legal proceedings to which the Public Trustee is a party, or in which he is in any way interested and is represented by an Australian legal practitioner employed by the Public Trustee, the Public Trustee shall be entitled to the same costs, fees, and allowances as if he had been represented by an Australian legal practitioner not permanently employed by the Public Trustee.
56. Allowance by Public Trustee of claims, &c., against estates
[Section 56 Amended by No. 55 of 1965, s. 5 ][Section 56 Amended by No. 14 of 1977, s. 9 ]In the administration of any estate the Public Trustee may –and shall not incur any liability in any of the said cases by so doing.(a) allow any claim made upon him in respect of the estate upon the affidavit or statutory declaration only of the claimant, or of some person on his behalf, or may require such further evidence as he may think necessary;(b) require proof by affidavit or statutory declaration that any person is living and is the person to whom any property is payable or transferable, and may refuse payment or transfer until such proof is furnished to him;(c) [Section 56 Amended by No. 9 of 2006, s. 9, Applied:01 Oct 2006] in respect of any estate or interest therein not exceeding the prescribed amount in value, if acting in good faith, accept the written statement, affidavit, or statutory declaration of any person whom he believes to be trustworthy as to any birth, death, marriage, or other matter of pedigree or relationship, or other fact upon which the title to the estate or any part thereof may depend–
57. Power of Public Trustee to institute inquiry as to validity of claim against estate
[Section 57 Amended by No. 20 of 1995, s. 3 and Sched. 1 ](1) When any claim is made by any person, whether as a creditor or otherwise, against an estate, the Public Trustee, if in doubt as to the validity of such claim, may institute such inquiries as he thinks proper regarding such claim, and, by a notice in writing, may require the claimant and any other persons to appear before the Court to answer on oath all questions that may be put to them respectively with reference to such claim.(2) The Public Trustee shall pay or tender to any person so summoned the amount to which such person would be entitled if he were summoned as a witness to appear before the Court.(3) If, without valid excuse, the claimant fails to attend pursuant to such notice, or refuses or fails to answer truly any relevant question put to him by or on behalf of the Public Trustee, it shall be lawful for the Public Trustee, by direction of the Court, to reject the claim.
58. Where Public Trustee may distribute assets after notice of rejection of claim of creditor
(1) Whenever the Public Trustee refuses to recognize the whole or part of the claim of any person who claims to be a creditor against the estate of any deceased person, he may give notice in writing of such refusal to such person, and, if such person does not, within one month, after the receipt of such notice or such further time as the Public Trustee may by such notice appoint, institute proceedings to enforce such claim, it shall be lawful for the Public Trustee to distribute the assets of such deceased person without regard to the claim, or to so much thereof as the Public Trustee has by the said notice refused to recognize, and thereupon the right of such person to recover the amount of the claim, or the portion thereof, which the Public Trustee has by the said notice refused to recognize, shall be absolutely barred.(2) For the purposes of this section a notice may be served on any such person by post, in a registered letter addressed to the address given in the claim, and every such notice shall be deemed to have been received by such person in the ordinary course of post, unless the Public Trustee has notice to the contrary before the distribution of the assets of such deceased person.
59. Right of Australian legal practitioner or accountant acting for beneficiary in estate administered by Public Trustee to examine books and accounts
[Section 59 Amended by 25 Geo. V No. 78 ][Section 59 Amended by No. 20 of 1995, s. 3 and Sched. 1 ]In the case of any estate –(a) [Section 59 Amended by No. 66 of 2007, Sched. 1, Applied:31 Dec 2008] an Australian legal practitioner or accountant authorized in writing by a beneficiary shall be entitled as of right to examine at any reasonable time the accounts of that estate, and for that purpose shall have access to the Public Trustee's books and vouchers relating to that estate;(b) any beneficiary aggrieved by any act, omission, or decision of the Public Trustee relating to that estate, may apply to the Court and, upon any such application, the Court may make such order in the premises as it thinks just.
60. Provisions for closing administration of estate after notice
[Section 60 Amended by 25 Geo. V No. 78 ](1) [Section 60 Subsection (1) amended by No. 55 of 1965, s. 5 ][Section 60 Subsection (1) amended by No. 14 of 1977, s. 10 ]When a testate or intestate estate is under administration by the Public Trustee, he may –(a) publish once in each week for two consecutive weeks in at least one newspaper published in or circulating in the locality in which the deceased resided or carried on business immediately prior to his decease, or, if the deceased died out of this State, then in such newspapers as the Public Trustee may think fit, a notice requiring all persons having claims against the said estate, whether as creditors or otherwise, to send in such claims to the Public Trustee within the time limited in such notice, being not less than one month from the first publication of such notice;(b) upon the expiration of the time limited in such notice, distribute the assets of the deceased, or any part thereof, amongst the persons entitled thereto, having regard to the claims of which the Public Trustee has then notice;(c) where any such estate is of less value than $1 000, distribute the same without giving any such notice as aforesaid.(2) The Public Trustee shall not be liable for the assets so distributed, or any part thereof, to any person of whose claim he has no notice at the time of distribution thereof, but this provision shall not prejudice the right of any subsequent claimant to enforce his claim against the persons who have benefited by such distribution to the extent of such benefit.(3) For the purposes of this section, the word distribute, as to real estate, means "convey and assure the real estate to the person entitled thereto".(4) The provisions of this section shall not prevent the Public Trustee, as executor or administrator, from making distributions under any other law or statute, or prejudice the protection thereby afforded, where he makes distribution pursuant to such law or statute.
61. Priorities of claims when assets are insufficient
[Section 61 Amended by 25 Geo. V No. 78 ](1) Where the assets of any testate or intestate estate under administration by the Public Trustee are insufficient to pay the liabilities in full, the assets shall be applied subject to the following priorities:(a) In payment of all proper expenses attending the due administration of the estate;(b) In payment of funeral charges, proportioned as the Public Trustee thinks proper, to the position of the deceased in his lifetime;(c) In payment of charges incurred for the medical treatment of the deceased for the period not exceeding three months immediately preceding the death of the deceased.(2) [Section 61 Subsection (2) amended by No. 76 of 1985, s. 7 ][Section 61 Subsection (2) amended by No. 68 of 1994, s. 3 and Sched. 1 ]For the purposes of this section –[Section 61 Subsection (2) amended by No. 13 of 1997, Sched. 4, Applied:01 Jul 1997] [Section 61 Subsection (2) amended by No. 90 of 2001, Sched. 6, Applied:01 Apr 2002] [Section 61 Subsection (2) amended by No. 3 of 2010, Sched. 1, Applied:01 Jul 2010] [Section 61 Subsection (2) amended by No. 17 of 2006, Sched. 3, Applied:01 Oct 2011] charges for medical treatment includes the expenses of a pharmacist, a registered nurse, and reasonable hospital and maintenance expenses in any establishment within the meaning of the Health Service Establishments Act 2006 , or a hospital maintained and operated by or on behalf of the State, or in any institution or asylum supported wholly or in part from local rates or public funds;funeral charges includes charges for the erection of a tombstone and curbing over the grave of the deceased.
62. Power of Public Trustee to make payment of sums not exceeding $500 without order
[Section 62 Amended by No. 55 of 1965, s. 5 ][Section 62 Amended by No. 14 of 1977, s. 11 ]Where under this or any other Act the Public Trustee is directed to make any payment, upon an order of any competent court being obtained, to any person entitled thereto, he may make a payment without such order if the amount thereof does not exceed $500; and any payment so made shall be as valid as if authorized by an order of such court.
63. Payment of small sums without probate or letters of administration
[Section 63 Amended by 25 Geo. V No. 78 ](1) [Section 63 Subsection (1) amended by No. 9 of 2006, s. 10, Applied:01 Oct 2006] [Section 63 Subsection (1) amended by No. 55 of 1965, s. 5 ][Section 63 Subsection (1) amended by No. 51 of 1967, s. 7 ][Section 63 Subsection (1) amended by No. 14 of 1977, s. 12 ][Section 63 Subsection (1) amended by No. 76 of 1985, s. 8 ]In case of the death of any person, either before or after the commencement of this Act, to whom any sum of money not exceeding the prescribed amount was or is payable by the Public Trustee, it shall be lawful for the Public Trustee to pay such sum or any part thereof to any person whom the Public Trustee shall consider entitled thereto without requiring probate or letters of administration to be taken out or produced to him.(2) Any such payment shall be valid against all persons whomsoever, and shall discharge the Public Trustee from all liability in respect of the sum so paid.(3) Nothing in this section shall prevent any person lawfully entitled to any sum so paid from recovering the same from the person to whom the same has been paid.
[Section 64 Amended by No. 55 of 1965, s. 5 ][Section 64 Amended by No. 75 of 1973, s. 2 and Sched. 1 ][Section 64 Amended by No. 14 of 1977, s. 13 ]Where the Public Trustee is realizing the property of any estate administered by him, and such property is not of greater value than $1 000, and is situated at a distance of more than 20 kilometres from any place of business of a licensed auctioneer, such property may be offered for sale by auction by some person to be appointed by the Public Trustee, and such person for the purpose of such sale shall not be required to take out an auctioneer's licence.
65. Power of Public Trustee to distribute estate when no claims received
[Section 65 Substituted by No. 14 of 1977, s. 14 ](1) [Section 65 Subsection (1) substituted by No. 23 of 2009, s. 42, Applied:16 Jun 2009] If the Public Trustee cannot distribute an estate because a person entitled to it cannot be located, then –(a) in the case of a small estate, the Public Trustee may distribute the estate without regard to the person entitled to the estate who cannot be located; or(b) in the case of any other estate, the Public Trustee must, by advertisement in a newspaper, call on the person entitled to the estate who cannot be located to identify himself or herself to the Public Trustee within the time specified in the advertisement.(2) [Section 65 Subsection (2) amended by No. 23 of 2009, s. 42, Applied:16 Jun 2009] Where a person referred to in subsection (1)(b) does not identify himself or herself to the Public Trustee within the time specified in the relevant advertisement, the Public Trustee may distribute the estate concerned or any part of it without regard to the claim of that person or a person claiming by, through, or under him, whether by derivative title or otherwise.(3) After making a distribution pursuant to subsection (2) , the Public Trustee shall forthwith file in the Court an affidavit giving particulars of the advertisement or advertisements he has published and stating that no person has sent a claim to him, and thereupon the Public Trustee is exonerated from any further liability in respect of the estate or part of the estate so distributed by him.(3A) [Section 65 Subsection (3A) inserted by No. 23 of 2009, s. 42, Applied:16 Jun 2009] The Public Trustee has no liability in respect of a distribution of a small estate pursuant to subsection (1)(a) if the Public Trustee, after making the distribution, files an affidavit with the Court stating that no claimant, other than those to whom the estate was distributed, could be located prior to the distribution.(4) [Section 65 Subsection (4) added by No. 44 of 1977, s. 2 ]Nothing in this section –(a) prejudices or affects the right of any person to follow an estate or any part of an estate into the hands of the person who has received it pursuant to a distribution under subsection (2) ; or(b) prejudices the right of the Public Trustee to distribute an estate or any part of an estate under any other Act or other law or prejudices the protection afforded by that other Act or other law where he makes a distribution pursuant to it.(5) [Section 65 Subsection (5) inserted by No. 23 of 2009, s. 42, Applied:16 Jun 2009] In this section –estate includes part of an estate;small estate means an estate where the net value does not, in the estimation of the Public Trustee, exceed the prescribed amount for the purpose of section 20A(1) .
66. Payments to persons outside Tasmania
(1) Where any personal estate is payable or deliverable by the Public Trustee to the subject of any country out of His Majesty's jurisdiction, the Minister may authorize the Public Trustee to pay or deliver the same to any specified official of that country, or to any consular officer for, or accredited agent of, that country on behalf of the person entitled.(2) Where personal estate is payable or deliverable by the Public Trustee to any person in any British possession the Minister may authorize the Public Trustee to pay or deliver the same to any specified official of such possession on behalf of the person entitled.(3) The receipt of such official, consular officer, or agent shall be a sufficient discharge to the Public Trustee, who shall not be further concerned to see to the application of such personal estate.
Where the Public Trustee is administering the estate in Tasmania of a person, who at the time of his death was domiciled in one of the States of the Commonwealth or in the Dominion of New Zealand or in England, and whose estate there is being administered by the Public Trustee or Public Curator of such State or Dominion or of England, the Public Trustee may pay over to the Public Trustee or Public Curator of such State or Dominion or of England, as the case may be, the balance of the proceeds of the estate in Tasmania of the said person, after payment of creditors and the charges provided for under this Act, without incurring any liability in regard to the payment of such balance and without any obligation to see to the application thereof.
68. Service of orders on Public Trustee
(1) [Section 68 Subsection (1) amended by No. 55 of 1965, s. 5 ][Section 68 Subsection (1) amended by No. 14 of 1977, s. 15 ][Section 68 Subsection (1) amended by No. 43 of 1991, s. 5 and Sched. 1 ]When any court or judge, except upon the application of the Public Trustee, makes an order under this Act, or which in any way affects the Public Trustee, it shall be the duty of the person who obtains such order forthwith to serve upon the Public Trustee a copy thereof, and to deliver to the Public Trustee a statement of the property affected by the order, showing where such property is situated or by whom held, so far as the same is known to such person, and such other information as the Public Trustee shall reasonably require, and in default thereof such person, unless he proves that such default was due to accident or was unavoidable, shall be liable to a fine not exceeding 5 penalty units.(2) When any such order is made, it shall be the duty of the Registrar or Deputy-Registrar or clerk, as the case may be, of the Court, to deliver or post by registered letter to the Public Trustee, a copy of such order, unless to his knowledge the Public Trustee has received a copy thereof.
69. Certificate of Public Trustee to be accepted as evidence
[Section 70 Repealed by No. 20 of 1995, s. 3 and Sched. 1 ]. . . . . . . .(1) [Section 69 Subsection (1) amended by No. 20 of 1995, s. 3 and Sched. 1 ]A certificate sealed by the Public Trustee certifying the nature of his appointment in relation to any estate, and any facts on the happening of which such appointment was made, shall be accepted by all courts, officers, and other persons as sufficient evidence of all the facts therein set forth, without production of any other proof whatever.(2) [Section 69 Subsection (2) amended by No. 51 of 1985, s. 4 and Sched. 2 ]Such certificate shall be sufficient for the purpose of registering the Public Trustee as proprietor of any shares, stock, or property in any company, body, or association, or of any estate or interest in any land under the Land Titles Act 1980 , or of bringing any land under that Act, and may be registered against such land as in the case of probate or letters of administration, and shall have the same force and effect.(3) Such certificate shall be equivalent, for registration purposes under any Act, to probate or letters of administration, and it shall not be necessary to register such probate or letters of administration.
71. Public Trustee and his officers not personally liable except in case of fraud or crime
(1) [Section 71 Subsection (1) substituted by No. 20 of 1995, s. 3 and Sched. 1 ]The chief executive officer or an employee does not incur any personal liability in respect of any act done, or omitted, in good faith –(a) in the performance or exercise of his or her functions or powers under this Act; or(b) in the course of his or her employment.(2) [Section 71 Subsection (2) amended by No. 20 of 1995, s. 3 and Sched. 1 ]Where by reason of the negligence of the chief executive officer or an employee any money loss is incurred or any extra payment has to be made, the amount involved may, with the approval of the Minister, be charged to profit and loss.(3) [Section 71 Subsection (3) amended by No. 66 of 2007, Sched. 1, Applied:31 Dec 2008] [Section 71 Subsection (3) amended by No. 20 of 1995, s. 3 and Sched. 1 ]Where in any conveyancing transaction between the Public Trustee and any person the Australian legal practitioner to the Public Trustee acts for both parties, or where he acts in any matter incidental to his duties, the liability which that Australian legal practitioner would incur if he were practising on his own account, shall be borne by the Public Trustee.
72. Remedy against Public Trustee
[Section 72 Amended by No. 9 of 2006, s. 11, Applied:01 Oct 2006] Subject to this Act, where any person sustains injury through any act or omission of the Public Trustee, or of any person acting in good faith for the Public Trustee, and such injury would have entitled such person to a remedy in respect thereof if such act or omission had been that of a private individual, such person shall be entitled to the same remedy against the Public Trustee in its corporate capacity as he would have against a private individual, and shall be entitled to be indemnified out of the Public Trustee's Account, and, if the same be insufficient, then out of such moneys as may be provided by Parliament for that purpose.
73. Mode of application to Court
In any case in which under this Act the Public Trustee or any other person is authorized to apply to the Court –(a) the application shall be by petition or summons, and shall be supported by such statement of facts, documents, or other information as the Court may require;(b) notice of such application shall be given to such persons as the Court may direct;(c) upon the hearing of such application, the Court may make such order, including an order as to payment of the costs of such application, as it shall think fit; and(d) the Public Trustee or such other person acting in accordance with any order made hereunder shall be fully indemnified accordingly, unless he has been guilty of fraud or wilful concealment or misrepresentation.
74. Power of Public Trustee to submit certain matters for opinion or direction of judge
(1) [Section 74 Subsection (1) amended by No. 9 of 2006, s. 12, Applied:01 Oct 2006] [Section 74 Subsection (1) amended by No. 55 of 1965, s. 5 ][Section 74 Subsection (1) amended by No. 14 of 1977, s. 16 ]In respect of any estate or interest therein not exceeding the prescribed amount in value, the Public Trustee, without instituting any proceedings against any person, may seek the opinion or obtain the direction of a judge upon any question, whether of law or fact, arising in the course of his duties.(2) Any such question shall be submitted by petition or summons at such time as the judge may direct, and shall be accompanied by such statement of facts, documents, or other information as he may require, all of which shall be verified by affidavit, and the Public Trustee or anyone authorized by him, if the judge so directs, shall attend upon the judge at such time and place as the judge may appoint.(3) The judge, before giving his opinion or direction, may require the attendance of, or communication with, any person interested in the subject-matter of such question, but no such person shall have a right to be heard unless the judge so directs.(4) The judge shall give his opinion or direction to the Public Trustee, and the Public Trustee shall act in accordance with such opinion or direction, and, upon the request in writing of any such interested person, shall communicate to him the effect of such opinion or direction.(5) The Public Trustee, in acting on such opinion, direction, or decision, shall be fully indemnified.
75. Power of judges to make rules
[Section 75 Amended by 25 Geo. V No. 78 ][Section 75 Amended by No. 18 of 2008, s. 41, Applied:26 Jun 2008] The judges, or a majority of them, may make general or special rules for the purpose of regulating any proceedings under this Act.
76. Validation of certain acts and orders
[Section 76 Amended by 25 Geo. V No. 78 ](1) Where the Public Trustee, believing in good faith that any person has died testate or intestate, as the case may be, obtains probate or administration of the estate of such person, or administers the same under statutory power, or is appointed or acts as trustee under a will of such person, and subsequently it is found that –all acts and omissions of the Public Trustee in relation to the estate of such person shall be as valid and effectual as if such belief as aforesaid had not been erroneous.(a) such person is still living;(b) such person did not die testate, or intestate, as was so believed; or(c) a later will of such person exists altering or revoking the will upon which the Public Trustee has acted –(2) Proof that such belief as aforesaid was not held in good faith shall be upon the person who alleges the same.(3) All orders, heretofore made by the Court, appointing the Public Trustee to be sole trustee for any of the purposes of the Settled Land Act 1884 , or to be committee of the estate or person of a person of unsound mind, shall be as valid and effectual as if the same had been made under this Act.
77. Acts subordinate to this Act
[Section 77 Amended by 25 Geo. V No. 78 ]The following Acts:shall be read and construed as subordinate to the provisions of this Act, and in such manner as not contrarily to affect the same.
The Administration and Probate Act 1935;
The Settled Land Act 1884;
The Trustee Act 1898 –
[Section 78 Substituted by No. 20 of 1995, s. 3 and Sched. 1 ](1) The Governor may make regulations for the purposes of this Act.(2) Without affecting the operation of subsection (1) and notwithstanding anything to the contrary in the Government Business Enterprises Act 1995 , the regulations may prescribe –(a) the maximum fees, remuneration, expenses and charges that the Public Trustee may receive in respect of the services, goods or information supplied by it and the performance and exercise of its functions and powers under this or any other Act; and(b) the maximum and minimum interest rates payable.(3) The regulations may be made so as to apply differently according to matters, limitations or restrictions, whether as to time, circumstance or otherwise, specified in the regulations.(4) The regulations may authorise any matter to be determined, applied or regulated by the Public Trustee or chief executive officer and regulations made before 1 July 1995 which authorised a matter to be determined, applied or regulated by the Public Trustee are taken to have been validly made.