Trustee Companies Act 1953
An Act to consolidate and amend the law relating to trustee companies, and to repeal certain enactments
[Royal Assent 9 December 1953]
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 - [Part I Heading inserted by No. 64 of 1985, s. 4 ]Preliminary
This Act may be cited as the Trustee Companies Act 1953 .
[Section 2 Amended by No. 64 of 1985, s. 27 and Sched. 1 ]The Acts that are specified in Schedule 1 are repealed.
[Section 3 Amended by No. 74 of 1978, s. 3 ][Section 3 Amended by No. 9 of 1982, s. 7 and Sched. 10 ][Section 4 Subsection (1) amended by No. 64 of 1985, s. 27 and Sched. 1 ][Section 4 Subsection (2) amended by No. 20 of 1990, s. 13 ][Section 4 Subsection (6) amended by No. 64 of 1985, s. 27 and Sched. 1 ][Section 4 Subsection (7) amended by No. 55 of 1965, s. 5 ][Section 4 Subsection (9) substituted by No. 20 of 1990, s. 13 ][Section 4 Repealed by No. 49 of 2010, s. 5, Applied:01 Jan 2011] . . . . . . . . [Section 4A Inserted by No. 2 of 2009, s. 5, Applied:27 Apr 2009] [Section 4A Repealed by No. 49 of 2010, s. 5, Applied:01 Jan 2011] . . . . . . . .(1) [Section 3 Subsection (1) substituted by No. 64 of 1985, s. 5 ][Section 3 Amended by No. 20 of 1990, s. 12 ][Section 3 Subsection (1) amended by No. 20 of 1995, s. 5 and Sched. 3 ][Section 3 Subsection (1) amended by No. 62 of 1996, s. 3 and Sched. 1 ]In this Act, unless the contrary intention appears –administrator means administrator pursuant to letters of administration;[Section 3 Subsection (1) amended by No. 49 of 2010, s. 4, Applied:01 Jan 2011] authorised person, in relation to the performance or exercise of a power, function or duty by or for a trustee company under this Act, means such person or office-holder as the trustee company, either specifically or generally and whether personally or by office or function, authorises for that purpose;control includes control as a result of, or by means of, trusts, agreements, related corporations, arrangements, understandings, and practices, whether or not having legal or equitable force, and whether or not based on legal or equitable rights;the Court means the Supreme Court;[Section 3 Subsection (1) amended by No. 74 of 1999, Sched. 2, Applied:01 Jan 2000] [Section 3 Subsection (1) amended by No. 49 of 2010, s. 4, Applied:01 Jan 2011][Section 3 Subsection (1) amended by No. 22 of 2000, s. 4, Applied:16 Jun 2000] GST has the meaning given to that term by the A New Tax System (Goods and Services Tax) Act 1999 of the Commonwealth;letters of administration means letters of administration with or without a will annexed;Public Trustee means The Public Trustee continued under the Public Trustee Act 1930 ;[Section 3 Subsection (1) amended by No. 22 of 2000, s. 4, Applied:16 Jun 2000][Section 3 Subsection (1) amended by No. 22 of 2000, s. 4, Applied:16 Jun 2000] regulations means regulations made and in force under this Act;[Section 3 Subsection (1) amended by No. 42 of 2001, Sched. 1, Applied:15 Jul 2001] related corporation means a corporation that is, by virtue of section 50 of the Corporations Act, deemed to be related to another corporation;secretary, in relation to a trustee company, includes an acting secretary, manager, or acting manager of the trustee company;[Section 3 Subsection (1) amended by No. 49 of 2010, s. 4, Applied:01 Jan 2011]trust estate includes all real and personal property of whatever kind committed to the administration or management of a trustee company;[Section 3 Subsection (1) amended by No. 49 of 2010, s. 4, Applied:01 Jan 2011] trustee company means a licensed trustee company within the meaning of Chapter 5D of the Corporations Act;[Section 3 Subsection (1) amended by No. 2 of 2009, s. 4, Applied:27 Apr 2009] [Section 3 Subsection (1) amended by No. 49 of 2010, s. 4, Applied:01 Jan 2011]will includes codicil.(1A) [Section 3 Subsection (1A) omitted by No. 20 of 1990, s. 12 ]. . . . . . . .(1B) [Section 3 Subsection (1B) omitted by No. 20 of 1990, s. 12 ]. . . . . . . .(2) [Section 3 Subsection (2) amended by No. 36 of 1958, s. 4 and Sched. 4 ]The powers and functions of the Court under this Act shall, for the purposes of the Supreme Court Civil Procedure Act 1932 , be deemed to be part of the jurisdiction of the Court that is subject to that Act.
PART II - [Part II Heading inserted by No. 64 of 1985, s. 6 ]Trustee Companies
Division 1 - [Part II, Division 1 Heading inserted by No. 64 of 1985, s. 6 ]Administration of estates
5. Power of trustee company to act as executor
Where a trustee company has been (whether before or after the commencement of this Act) expressly, or according to the tenor, appointed as executor under the will of a testator, the company may act as executor, or as executor according to the tenor, as the case may be, and may apply for and obtain probate accordingly.
6. Power of trustee company to act as administrator
Where a natural person may apply for and obtain letters of administration of the estate of a deceased person, a trustee company may, in like circumstances, apply for and obtain letters of administration and act as administrator.
7. Power of courts, &c., to appoint trustee company as trustee, receiver, &c.
(1) [Section 7 Subsection (1) amended by No. 63 of 1963, s. 2 and Sched. 2 ]Where a court, judge, or person has power to appoint –that court, judge, or person may appoint a trustee company to be a trustee, receiver, committee, or guardian, or an attorney or agent, as the case may be.(a) a trustee;(b) a receiver;(c) [Section 7 Subsection (1) amended by No. 33 of 1996, Sched. 1, Applied:01 Sep 1997] an administrator of a person's estate under the Guardianship and Administration Act 1995 ;(d) a guardian of an infant's estate; or(e) an attorney or agent –(2) Where a trustee company is so appointed as a trustee, receiver, or committee, the trustee company may act as a trustee, receiver, or committee, as the case may be, until removed from office and may perform and discharge all acts and duties pertaining to the office of trustee, receiver, or committee.(3) [Section 7 Subsection (3) amended by No. 55 of 1965, s. 5 ][Section 7 Subsection (3) omitted by No. 49 of 2010, s. 6, Applied:01 Jan 2011] . . . . . . . .
8. Power of person entitled to probate to authorize trustee company to obtain probate
[Section 8 Amended by No. 64 of 1985, s. 7 ]A person who is named expressly or by implication as the executor of the will of a deceased person and who would be entitled to obtain in Tasmania probate of the will without reserving leave to any other person to apply for probate may, instead of himself applying for probate, authorize a trustee company to apply to the Court for administration with the will annexed; and administration with the will annexed may be granted to the trustee company, upon its own application, when so authorized, unless the testator has, by his will, expressed his desire that the office of executor should not be delegated or that a trustee company should not act in the trusts of his will.
9. Power of person entitled to administration to authorize trustee company to obtain administration
[Section 9 Amended by No. 64 of 1985, s. 8 ]A person who is entitled to obtain letters of administration, whether general, special, or limited, of the estate of another person, may, instead of himself applying for administration, authorize a trustee company to apply for administration of that estate, and administration of that estate may be granted to the trustee company upon its own application when so authorized.
10. Power of trustee company to act jointly with other persons or to obtain probate with leave to other persons to come in and prove
(1) Subject to subsection (2) , a person who is named expressly or by implication as the executor of the will of a deceased person and who would be entitled to obtain probate of the will jointly with any other person may, notwithstanding any law or custom to the contrary, instead of himself applying for probate of the will, authorize a trustee company to apply to the Court for probate thereof, either alone with leave reserved for any person to come in and prove, or jointly with any other person who is entitled to apply for probate, in the same manner as if the company had been originally named in the will in the place of the person by whom the application is authorized.(2) The power conferred by this section shall not be exercised in the case of a will in which the testator has expressed his desire that the office of executor should not be delegated or that a trustee company should not act in the trusts of his will.
10A. Election to administer small estates without grant of probate, &c.
[Section 10A Substituted by No. 64 of 1985, s. 9 ](1) Where –(a) a person dies, or has died, domiciled or leaving property in Tasmania;(b) a trustee company is entitled, or authorized by another person entitled, to obtain probate of the will of the deceased person or letters of administration of the estate of that deceased person; and(c) [Section 10A Subsection (1) amended by No. 9 of 2006, s. 17, Applied:01 Oct 2006] [Section 10A Subsection (1) amended by No. 29 of 2018, s. 48, Applied:10 Dec 2018] it appears to that trustee company that the gross amount of that estate to be administered in Tasmania does not exceed the prescribed amount–that trustee company may, instead of applying for probate or letters of administration, file in the office of the Registrar of the Court an election under its common seal to administer that estate specifying –(d) the name, residence, occupation, and marital status so far as may be known to the trustee company, of the deceased person at the date of his death;(e) the names and the age, if surviving, or the date of death, if deceased, of any issue of the deceased person;(f) the property forming the estate of the deceased person so far as it is then known to the trustee company; and(g) the date of death of the deceased person.(2) Where a trustee company believes that a deceased person referred to in subsection (1) has died testate, an election under that subsection shall state –(a) that, after due inquiries, the trustee company believes that the document annexed to the election is the testator's last will or an exemplification of that will, if probate of that will or other appropriate testamentary grant has been made outside Tasmania; and(b) that that will has been validly executed according to law –and shall specify with respect to each beneficiary of the will of the deceased person –(c) his relationship, if any, to that person; and(d) particulars of the property of the deceased person to which that beneficiary is entitled as such.(3) On the filing of an election under subsection (1) , the trustee company filing it 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 it by the Court.(4) A trustee company shall publish in the Gazette a notice that it has made an election under subsection (1) .(5) A notice published in the Gazette under subsection (4) is evidence that the trustee company is entitled to administer the estate to which the notice relates.(6) If a trustee company –file in the office of the Registrar of the Court a memorandum under its common seal stating that fact, and revoking its election, and apply for letters of administration or probate, as the case may require.(a) [Section 10A Subsection (6) amended by No. 9 of 2006, s. 17, Applied:01 Oct 2006] [Section 10A Subsection (6) amended by No. 29 of 2018, s. 48, Applied:10 Dec 2018] after filing an election under subsection (1) , finds that the gross value of the property to be administered in Tasmania exceeds the prescribed amount, the trustee company shall, as soon as practicable after it becomes aware of that fact; or(b) at any time considers it desirable for any reason so to do, the trustee company may –(7) If, after filing an election under subsection (1) , a trustee company finds –the trustee company shall, as soon as practicable after it becomes aware of that fact, file in the office of the Registrar of the Court a memorandum under its common seal stating that fact and revoking the election.(a) that the deceased person who was supposed to have died intestate has died testate; or(b) that the document annexed to the 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 –(8) Where a trustee company files a memorandum under subsection (7) –(a) the election previously made by the trustee company is revoked;(b) the trustee company may file a fresh election under subsection (1) ; and(c) the provisions of this section apply to, and in relation to, the estate previously subject to the election as if no such previous election relating to that estate had been made under subsection (1) .(9) A copy of an election filed under subsection (1) and certified as a correct copy under the seal of the Court has the same legal effect as an exemplification of probate.
11. Power of Court to act on affidavit of authorised person of trustee company
[Section 11 Amended by No. 49 of 2010, s. 7, Applied:01 Jan 2011] Where a trustee company is authorized by or under this Act to apply for probate or letters of administration, the Court, or, as the case may be, the officer to whom an application for probate or letters of administration is made by the trustee company, may receive and act upon an affidavit by an authorised person of the trustee company in lieu of an affidavit required by the Court to be made by a person making application for probate or administration.[Section 12 Amended by No. 55 of 1965, s. 5 ][Section 12 Amended by No. 62 of 1996, s. 3 and Sched. 1 ][Section 12 Amended by No. 74 of 1999, Sched. 2, Applied:01 Jan 2000] [Section 12 Repealed by No. 49 of 2010, s. 8, Applied:01 Jan 2011] . . . . . . . .
13. Power of trustee company to act under power of attorney
(1) [Section 13 Subsection (1) amended by No. 49 of 2010, s. 9, Applied:01 Jan 2011] A trustee company may act under a power of attorney by which the company is appointed attorney by a person, and all the powers conferred upon the company by a power of attorney may be exercised and carried into execution by an authorised person, or by any 2 or more of the directors, of the company.(2) Where a trustee company is appointed attorney by a person, the capital of the company (whether paid or unpaid capital), and all other assets of the company, are liable for the due execution of the powers so conferred upon the company.(3) This section does not authorize a person to confer a power upon a trustee company that cannot legally be conferred upon a natural person.
14. Power to appoint trustee company as temporary executor, &c.
An executor or administrator, or a trustee, may appoint a trustee company to act as executor, administrator, or trustee in his stead, and if a trustee company is so appointed by deed filed in accordance with any law in force providing for the filing of powers of attorney –(a) the company may act within the scope of the authority conferred upon it as effectually as the executor, administrator, or trustee could have acted;(b) the company may exercise all discretionary and other powers that are delegated to it by the principal as fully and effectually as the principal could have exercised them; and(c) after the filing of the power of attorney, every act of the company that is within the scope of the authority so conferred shall, in favour of any person who deals with the company in good faith and without notice of the death of the principal or of his revocation of the authority, be valid and effectual notwithstanding the revocation by, or death of, the principal.
15. Power of executors, &c., to appoint trustee company to discharge their duties
(1) [Section 15 Subsection (1) amended by No. 33 of 1996, Sched. 1, Applied:01 Sep 1997] [Section 15 Subsection (1) amended by No. 63 of 1963, s. 2 and Sched. 2 ]The executor or administrator, acting under any probate or letters of administration, or a receiver, or the administrator of the estate of a person under the Guardianship and Administration Act 1995 , may, with the consent of the Court, appoint a trustee company to perform and discharge all the acts and duties of the executor, administrator, receiver, or committee, and the trustee company may perform and discharge all those acts and duties accordingly, and the executor, administrator, receiver, or committee so appointing the company is released from liability in respect of all acts done, or omitted to be done, by the company acting under that appointment.(2) Notice of an intended application for the consent of the Court under this section shall be advertised once in one daily newspaper published in Hobart, and in one daily newspaper published elsewhere in this State, at least 14 days before the making of the application, and the Court may require a person who resides in this State and is entitled to the immediate receipt of any of the income or corpus of the estate in respect of which the application is made to be served with notice thereof.(3) No consent shall be given by the Court under this section in the case of a will in which the testator has expressed his desire that the trusts thereof should not be delegated or that a trustee company should not act therein.
15A. Power of trustee company to undertake other services
[Section 15A Inserted by No. 25 of 1970, s. 3 ](1) [Section 15A Subsection (1) substituted by No. 64 of 1985, s. 10 ]A trustee company may manage properties and businesses held or carried on in trust by it or by other trustees, if the trustee company directly controls that management.(2) [Section 15A Subsection (2) omitted by No. 49 of 2010, s. 10, Applied:01 Jan 2011] . . . . . . . .(3) [Section 15A Subsection (3) omitted by No. 49 of 2010, s. 10, Applied:01 Jan 2011] . . . . . . . .(4) [Section 15A Subsection (4) omitted by No. 49 of 2010, s. 10, Applied:01 Jan 2011] . . . . . . . .
15B. Loans from estates to related corporations prohibited
[Section 15B Inserted by No. 64 of 1985, s. 11 ][Section 15B Amended by No. 43 of 1991, s. 5 and Sched. 1 ]A trustee company shall not make a deposit or loan to a related corporation from an estate administered or managed by the trustee company under this Act.Penalty: Fine not exceeding 200 penalty units.
15C. No trust estate to be liable under guarantee from trustee company unless given on behalf of that estate
[Section 15C Inserted by No. 64 of 1985, s. 11 ](1) A trust estate administered or managed by a trustee company is not liable for the payment of money under a guarantee from the trustee company otherwise than under a guarantee lawfully given by the trustee company on behalf of that trust estate.(2) Subsection (1) does not authorize a trustee company to give a guarantee on behalf of a trust estate to a related corporation.
16. Power of trustee company to act as if it were a natural person
Where a trustee company is appointed to any office or position pursuant to any of the provisions of this Act, the trustee company may do and perform all acts and duties and exercise all powers and discretions that appertain to that office or position as fully and effectually as if the company were a natural person.
17. Power of authorised person to attend on behalf of trustee company
[Section 17A Inserted by No. 64 of 1985, s. 12 ][Section 17A Subsection (1) amended by No. 42 of 2001, Sched. 1, Applied:15 Jul 2001] [Section 17A Subsection (1) amended by No. 43 of 1991, s. 5 and Sched. 1 ][Section 17A Repealed by No. 49 of 2010, s. 12, Applied:01 Jan 2011] . . . . . . . .(1) [Section 17 Subsection (1) amended by No. 49 of 2010, s. 11, Applied:01 Jan 2011] Where the personal attendance of an executor, administrator, trustee, receiver, or committee is required in a court or elsewhere, a trustee company shall be entitled to make the attendance in the person of an authorised person of the company, and the personal duties of executor, administrator, trustee, receiver, or committee may be discharged, on behalf of a trustee company, by an authorised person thereof.(2) [Section 17 Subsection (2) amended by No. 49 of 2010, s. 11, Applied:01 Jan 2011] Where a trustee company obtains probate or letters of administration to be granted to the company, and where a trustee company is appointed and acts as a trustee, receiver, or committee, the authorised person of the trustee company and the directors of the trustee company 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 authorised person and the directors had personally obtained probate or letters of administration or had acted as executor, administrator, trustee, receiver, or committee.(3) Nothing in subsection (2) limits or affects the operation of section 31 .
18. Commission chargeable by trustee company
[Section 18 Subsection (1) amended by No. 55 of 1965, s. 3 and Sched. 1 ][Section 18 Subsection (1) amended by No. 25 of 1970, s. 4 ][Section 18 Subsection (1) amended by No. 91 of 1975, s. 3 ][Section 18 Subsection (1) amended by No. 64 of 1985, s. 13 ][Section 18 Subsection (4A) amended by No. 9 of 2006, s. 18, Applied:01 Oct 2006] [Section 18 Subsection (4A) inserted by No. 25 of 1970, s. 4 ][Section 18 Subsection (4B) inserted by No. 22 of 2000, s. 5, Applied:16 Jun 2000] [Section 18 Substituted by No. 49 of 2010, s. 13, Applied:01 Jan 2011](1) A trustee company may, in addition to any money properly expended by it and chargeable against an estate placed under its administration or control, charge and receive commission at such rate as the board of directors or other governing body of the trustee company determines.(2) However, the commission must not in any case exceed the limits set or permitted by or under Part 5D.3 of Chapter 5D of the Corporations Act.
18A. Management charge in respect of charitable trusts, &c.
[Section 18A Inserted by No. 91 of 1975, s. 4 ](1) [Section 18A Subsection (1) amended by No. 49 of 2010, s. 14, Applied:01 Jan 2011] [Section 18A Subsection (1) amended by No. 22 of 2000, s. 6, Applied:16 Jun 2000] Where a trustee company administers a charitable trust or a trust of indefinite duration for a purpose other than the individual benefit of persons having an interest under the trust, the company is entitled to receive and charge a sum of such amount as the board of directors or other governing body of the trustee company determines, not exceeding in any case the limits set or permitted by or under Part 5D.3 of Chapter 5D of the Corporations Act.(2) For the purpose of recovering in whole or in part any sum that a trustee company may receive and charge under subsection (1) in respect of a trust, it may, as the board of directors or other governing body of the company determines, appropriate to its use any of the property the subject of the trust or the proceeds of the realization thereof or any of the income received by the company as trustee of the trust.(3) [Section 18A Subsection (3) omitted by No. 49 of 2010, s. 14, Applied:01 Jan 2011] . . . . . . . .(4) The rights of a trustee company under this section in respect of its administration of a trust are in addition to, and not in derogation of, its right to charge, receive, or recover, under this Act or otherwise, any commission or other sums in respect of its administration of the trust.(5) Where the Court is of opinion that any sums charged by a trustee company under this section in respect of its administration of a trust are excessive, it may review and reduce the sums so charged, and, for that purpose, may make such orders as it thinks fit.
Division 2 - General powers[Part II, Div. 2 Inserted by No. 64 of 1985, s. 14 ]
18B. Power of trustee company to undertake other services
[Section 18B Inserted by No. 64 of 1985, s. 14 ]A trustee company may –(a) prepare and lodge taxation returns;(b) if so authorized by a will or other instrument creating a trust or by an instrument signed by all persons beneficially entitled to the income of any property or business, manage that property or carry on that business in accordance with any terms or conditions specified in that will or other instrument; and(c) hold property as a custodian trustee unless it is prohibited from doing so by virtue of, or it is inconsistent with, any trusts to which that property is subject.
18C. Investment in common fund, &c.
[Section 18C Inserted by No. 64 of 1985, s. 14 ][Section 18C Subsection (13) amended by No. 74 of 1993, s. 4 ][Section 18C Subsection (13) amended by No. 22 of 2000, s. 7, Applied:16 Jun 2000] [Section 18C Substituted by No. 49 of 2010, s. 15, Applied:01 Jan 2011](1) In this section –common fund means a common fund within the meaning of Division 3 of Part 5D.2 of Chapter 5D of the Corporations Act.(2) A trustee company may invest any money in its hands –(a) on the separate account of the trust estate to which the money belongs; or(b) in a common fund if –(i) the trust deed, will or other instrument governing the money does not direct that it be invested in a specific manner; and(ii) investment in a common fund is not inconsistent with that trust deed, will or instrument; and(iii) the investment is restricted to classes of investments in which the money might lawfully be invested on its separate account.(3) A trustee company is to invest the money comprised in a common fund in investments authorised by the Trustee Act 1898 .(4) To the extent that Division 3 of Part 5D.2 of Chapter 5D of the Corporations Act or regulations in force under the Corporations Act provide for the establishment of common funds, the provisions of that Act or those regulations prevail over this section.
18D. Power of trustee company to mix funds for investment
[Section 18D Inserted by No. 64 of 1985, s. 14 ][Section 18E Inserted by No. 64 of 1985, s. 14 ][Section 18E Amended by No. 42 of 2001, Sched. 1, Applied:15 Jul 2001] [Section 18E Repealed by No. 49 of 2010, s. 16, Applied:01 Jan 2011] . . . . . . . .(1) Where a trustee company holds for investment –(a) money belonging to an estate of which it is the sole trustee; and(b) money belonging to another estate of which it is sole trustee or to a person for whom it acts as agent to invest that money –the trustee company may –(c) invest all that money as one fund in one or several securities;(d) distribute the income arising from those securities, after deducting all proper charges, rateably among the several estates and persons from which or from whom the money so invested was derived; and(e) in the same manner debit any loss arising from the investment rateably to those several estates and persons.(2) Nothing in this section authorizes a trustee company to invest money belonging to any estate or person in a security in which that money could not lawfully be invested apart from this section.
Division 3 - Duties of trustee companies[Part II, Div. 3 Inserted by No. 64 of 1985, s. 14 ]
18F. Duty of trustee company not to acquire shares in itself
[Section 18F Inserted by No. 64 of 1985, s. 14 ][Section 18G Inserted by No. 64 of 1985, s. 14 ][Section 18G Subsection (1) amended by No. 43 of 1991, s. 5 and Sched. 1 ][Section 18G Repealed by No. 49 of 2010, s. 17, Applied:01 Jan 2011] . . . . . . . . [Section 18H Inserted by No. 64 of 1985, s. 14 ][Section 18H Subsection (1) amended by No. 27 of 2003, s. 6, Applied:04 Jun 2003] [Section 18H Subsection (1) substituted by No. 20 of 1990, s. 14 ][Section 18H Subsection (3) amended by No. 43 of 1991, s. 5 and Sched. 1 ][Section 18H Subsection (5) omitted by No. 20 of 1990, s. 14 ][Section 18H Repealed by No. 49 of 2010, s. 17, Applied:01 Jan 2011] . . . . . . . . [Section 18I Inserted by No. 64 of 1985, s. 14 ][Section 18I Subsection (2) amended by No. 43 of 1991, s. 5 and Sched. 1 ][Section 18I Repealed by No. 27 of 2003, s. 6, Applied:04 Jun 2003] . . . . . . . .(1) [Section 18F Subsection (1) amended by No. 2 of 2009, s. 6, Applied:27 Apr 2009] [Section 18F Subsection (1) amended by No. 43 of 1991, s. 5 and Sched. 1 ]Notwithstanding anything contained in the trust deed, will, or other instrument under which a trust is created, a trustee company shall not at any time after the administration or management of a trust estate is committed to it, acquire any shares in itself or in any subsidiary or trustee holding company of the trustee company on behalf of that trust estate.Penalty: Fine not exceeding 200 penalty units.(2) Subsection (1) does not prevent a trustee company from retaining on behalf of a trust estate any shares in itself or from exercising any rights of that trust estate with respect to those shares if those shares were included in the trust estate when its administration or management was committed to the trustee company.
18J. Employment of Australian legal practitioner by trustee company
[Section 18J Inserted by No. 64 of 1985, s. 14 ](1) [Section 18J Subsection (1) amended by No. 66 of 2007, Sched. 1, Applied:31 Dec 2008] Where–the trustee company shall employ that Australian legal practitioner accordingly.(a) [Section 18J Subsection (1) amended by No. 66 of 2007, Sched. 1, Applied:31 Dec 2008] by a will, deed, or other instrument in writing, a trustee company or any other trustee appointed by the will, deed, or instrument, is directed to employ an Australian legal practitioner who is named in that will, deed, or instrument to conduct the legal or professional business associated with the administration or management of the trust estate referred to in that will, deed, or instrument; or(b) [Section 18J Subsection (1) amended by No. 66 of 2007, Sched. 1, Applied:31 Dec 2008] a trustee company, before the administration or management of any trust or estate is transferred or committed to it, agrees with an Australian legal practitioner to employ him in or about the legal or professional business associated with the administration or management of that trust estate–(2) [Section 18J Subsection (2) amended by No. 66 of 2007, Sched. 1, Applied:31 Dec 2008] Where an Australian legal practitioner is employed by a trustee company pursuant to subsection (1) , he shall be deemed to be the Australian legal practitioner of the company in the legal or professional business to which that subsection relates, and shall not be removed except by order of the Court under subsection (3) .(3) [Section 18J Subsection (3) amended by No. 66 of 2007, Sched. 1, Applied:31 Dec 2008] Upon the application of a trustee company or of a person who has an interest in a trust estate to which subsection (1) relates, the Court, on such cause being shown as the Court may think sufficient, may order the removal of an Australian legal practitioner who is employed by the company pursuant to that subsection, and may appoint another Australian legal practitioner to act as the Australian legal practitioner of the company for the purposes of that trust estate.
Division 4 - [Part II, Div. 4 Heading inserted by No. 64 of 1985, s. 15 ]Control of trustee companies
19. Power of Court to remove trustee company from office
[Section 19 Subsection (1) amended by No. 64 of 1985, s. 16 ][Section 20 Subsection (1) inserted by No. 64 of 1985, s. 17 ][Section 20 Subsection (1) amended by No. 20 of 1990, s. 15 ][Section 20 Subsection (2), formerly (1) renumbered by No. 64 of 1985, s. 17 ][Section 20 Repealed by No. 49 of 2010, s. 18, Applied:01 Jan 2011] . . . . . . . . [Section 21 Repealed by No. 49 of 2010, s. 18, Applied:01 Jan 2011] . . . . . . . .(1) [Section 19 Subsection (1) amended by No. 25 of 1970, s. 5 ]Where a trustee company is appointed executor, administrator, trustee, receiver, committee, agent, or attorney under power, the company is, in addition to the liabilities and restrictions imposed by this Act, subject in all respects to the same control and liability to removal as if it were a natural person.(2) A person who claims relief against a trustee company for or in respect of an act done or assumed to be done, or in respect of an act omitted to be done, by the company, or by any of its directors or officers, under any of the powers conferred by this Act, may take appropriate proceedings in the Court or in any other court of competent jurisdiction and the court in which the proceedings are taken may make and enforce such orders as that court may think just in the circumstances.
22. Power of Court to restrain voluntary winding up of trustee company
[Section 23 Repealed by No. 64 of 1985, s. 18 ]. . . . . . . . [Section 24 Repealed by No. 64 of 1985, s. 18 ]. . . . . . . . [Section 25 Repealed by No. 64 of 1985, s. 18 ]. . . . . . . .(1) So long as any estate in respect of which a trustee company is executor, administrator, or trustee remains in whole or in part unadministered, no person shall take any steps or proceedings to wind up the company voluntarily, except with the sanction of the Court.(2) A person who is interested in an estate to which subsection (1) relates, or who may have a claim in respect thereof, may apply to the Court, in a summary way, to restrain any director or shareholder from disposing of a share that the director or shareholder may hold in the company, or to restrain the winding up voluntarily of the company, and the Court has power to make such order in the matter as the circumstances of each case appear to the Court to require.
Division 5 - [Part II, Div. 5 Heading inserted by No. 64 of 1985, s. 19 ]Distribution of deceased estates
26. Power of trustee company to distribute assets without regard to claims of creditors after notice and failure of creditors to take proceedings
(1) When a trustee company refuses to recognize, in whole or in part, the claim of a person who claims to be a creditor against the estate of a deceased person, the trustee company may give notice in writing of its refusal to the person so claiming.(2) If the person so claiming does not, within 3 months after the receipt of a notice under subsection (1) , institute proceedings to enforce his claim the trustee company may distribute the assets of the deceased person without regard to the claim or to so much thereof as the trustee company has, by that notice, refused to recognize, and thereupon the right of that person to recover the amount of the claim, or the part thereof that the trustee company has refused to recognize, is barred.(3) A notice under this section may be served by registered post on the person for whom it is intended.
27. Power of trustee company to distribute estate where possible claimants have not claimed
(1) Subject to this section, when –the trustee company, after advertising as required under this section, may, without being under any liability to the said person or to any other person claiming through him or as his issue or one of his issue, distribute the estate as if the said person had predeceased the deceased person without issue.(a) a trustee company –(i) has been granted probate of the will, or letters of administration of the estate, of a deceased person; and(ii) has been informed of the existence at any time of a person (in this section referred to as "the said person") who, if he had survived the deceased person, would have been entitled to a legacy under the will, or to the whole or a share of the estate, of the deceased person; and(b) neither the said person nor any other person claiming through him or as his issue or one of his issue has made a claim in respect of that legacy, estate, or share within 3 years after the grant of probate or letters of administration –(2) The trustee company shall, before making a distribution pursuant to this section, make a report to a judge setting out the material facts relating to the matter and obtain a direction from the judge as to the form and number of the advertisements to be inserted and the places in which they are to be published and fixing a time after the insertion of the last of those advertisements at the expiration of which the distribution may be made.(3) Nothing in this section prejudices the right of a person to follow any assets into the hands of the person or persons who have received them.
28. Power of trustee company to make advances to beneficiaries
Where an estate is committed to the administration or management of a trustee company, the company may, pending the realization of the estate, make out of its own funds such advances, upon and subject to such conditions, as it thinks fit, to a person who is entitled, whether absolutely or contingently, to the whole or a share of the estate.
PART III - [Part III Heading inserted by No. 64 of 1985, s. 20 ]Miscellaneous and Supplemental
Division 1 - . . . . . . . .[Part III, Div. I Heading inserted by No. 64 of 1985, s. 20 ][Division 1 of Part III Repealed by No. 49 of 2010, s. 19, Applied:01 Jan 2011] [Section 29 Subsection (1) amended by No. 66 of 1962, s. 3 and Sched. 1 ][Section 29 Subsection (1) amended by No. 9 of 1982, s. 7 and Sched. 10 ][Section 29 Subsection (2) amended by No. 25 of 1970, s. 7 ][Section 29 Subsection (1) amended by No. 42 of 2001, Sched. 1, Applied:15 Jul 2001] [Section 29 Subsection (1) amended by No. 29 of 1959, s. 2 and Sched. 1 ][Section 29 Subsection (2) amended by No. 7 of 1960, s. 2 ][Section 29 Subsection (3) amended by No. 17 of 1996, Applied:25 May 1998] [Section 29 Subsection (3) amended by No. 55 of 1965, s. 5 ][Section 29 Repealed by No. 49 of 2010, s. 19, Applied:01 Jan 2011] . . . . . . . .
Division 2 - [Part III, Div. 2 Heading inserted by No. 64 of 1985, s. 21 ]Accounts and audit
30. Trustee company to keep separate accounts of each estate
An account of the money paid or received, and of investments made and money advanced, by a trustee company on account of each estate of which the company has the administration or management in pursuance of this Act, shall be kept by the company separate and distinct from that of any other estate of which it has the administration or management.
31. Assets of trustee company liable for proper discharge of company's duties
Subject to this Act, all the capital (whether paid capital or unpaid capital) of a trustee company and all the assets of a trustee company are liable for the proper discharge of any duties that are undertaken by the company pursuant to this Act.
32. Trustee company to pay certain unclaimed moneys to Public Trustee
[Section 32 Inserted by No. 36 of 1958, s. 4 and Sched. 4 ](1) Except in a case to which subsection (2) applies, a trustee company shall pay to the Public Trustee all moneys that form part of an estate of which the company is the executor, administrator, or trustee and that remain unclaimed by the person who is entitled thereto for a period of 5 years after the time when they become payable to that person.(2) Subsection (1) does not apply in a case where payment of any moneys is restrained by order of a court of competent jurisdiction.(3) [Section 32 Subsection (3) amended by No. 20 of 1995, s. 5 and Sched. 3 ]Subject to this section, moneys that are paid to the Public Trustee pursuant to this section shall be held by the Public Trustee as belonging to the particular estate in respect of which they are paid and on behalf of the person entitled thereto.(4) [Section 32 Subsection (4) amended by No. 20 of 1995, s. 5 and Sched. 3 ]Moneys that are paid to the Public Trustee pursuant to this section form part of the common fund, within the meaning of the Public Trustee Act 1930 , and may be invested by the Public Trustee in the manner provided by that Act.(5) [Section 32 Subsection (5) substituted by No. 23 of 2009, s. 48, Applied:16 Jun 2009] The Public Trustee must not pay over to any person money that has been paid to the Public Trustee pursuant to this section, nor any interest on that money, unless satisfied that the person is entitled to that money or interest.(6) The Public Trustee shall credit to the particular estates quarterly on the usual quarterly days interest upon all moneys that are paid to the Public Trustee pursuant to this section, and the interest so credited shall be added to those moneys and accumulated by way of compound interest.(7) For the purposes of this section and of sections 35 and 37 , moneys that were paid to the Public Trustee by a trustee company before the commencement of this section pursuant to the Unclaimed Trust Moneys Act 1921 shall be deemed to have been so paid pursuant to this section.
33. Transfer of securities to Public Trustee
[Section 33 Inserted by No. 36 of 1958, s. 4 and Sched. 4 ](1) Where any moneys that are required by section 32 to be paid to the Public Trustee are invested in securities, those moneys shall, notwithstanding the investment, be deemed to be, and to remain, moneys within the meaning and for the purposes of that section, and a reference in that section to the payment of any moneys shall, in the case of moneys that are so invested, be construed as a reference to the transfer of the securities for the time being representing those moneys.(2) [Section 33 Subsection (2) amended by No. 20 of 1995, s. 5 and Sched. 3 ]In the case of moneys that are so invested, in lieu of the provisions of section 32 relating to interest the interest that is actually received by the Public Trustee in respect of any security shall, until the maturity thereof, be credited to the particular estate in respect of which the security is held, and, on the maturity of the security, shall be added to the capital moneys arising therefrom and thenceforth those capital moneys and the interest thereon shall form part of the common fund, within the meaning of the Public Trustee Act 1930 .
34. Notice of unclaimed trust moneys
[Section 34 Inserted by No. 36 of 1958, s. 4 and Sched. 4 ][Section 34 Subsection (3) amended by No. 67 of 1994, s. 3 and Sched. 1 ][Section 34A Inserted by No. 64 of 1985, s. 22 ][Section 34A Subsection (1) amended by No. 42 of 2001, Sched. 1, Applied:15 Jul 2001] [Section 34A Repealed by No. 49 of 2010, s. 20, Applied:01 Jan 2011] . . . . . . . .(1) A trustee company shall, at the end of each period of 6 months after the commencement of this section, deliver to the Public Trustee a statement of all unclaimed moneys that, during the preceding 6 months, were in its hands.(2) [Section 34 Subsection (2) amended by No. 20 of 1995, s. 5 and Sched. 3 ]A statement under this section shall distinguish the several estates in respect of which the moneys have been received by the trustee company and set forth the dates and amounts of the several payments thereof to the Public Trustee under section 32 , and, if those moneys or any part thereof have not been paid to the Public Trustee, shall also set forth the reason for the non-payment thereof.(3) [Section 34 Subsection (3) amended by No. 55 of 1965, s. 5 ]In default of compliance with the provisions of this section in respect of a trustee company, the company, and the secretary of the company, and every member of the board of directors or other governing body of the company, are jointly and severally liable to a fine not exceeding 0·1 penalty unit for each day during which the default continues.
Division 3 - [Part III, Div. 3 Heading inserted by No. 64 of 1985, s. 23 ]Powers of Supreme Court[Section 35 Inserted by No. 36 of 1958, s. 4 and Sched. 4 ][Section 35 Subsection (1) amended by No. 117 of 1973, s. 2 ][Section 35 Repealed by No. 23 of 2009, s. 49, Applied:16 Jun 2009] . . . . . . . .
36. Power of Court to make order for account on application of Public Trustee
[Section 36 Inserted by No. 36 of 1958, s. 4 and Sched. 4 ](1) [Section 36 Subsection (1) amended by No. 49 of 2010, s. 21, Applied:01 Jan 2011] [Section 36 Subsection (1) amended by No. 20 of 1995, s. 5 and Sched. 3 ]If the Public Trustee is unable, on application to a trustee company, to obtain a sufficient account of the property and assets of an estate that is, or in its opinion ought to have been, included in a statement under section 34 , the Public Trustee may, after notice to the company, apply to the Court for an account.(2) If, on the hearing of an application under this section, the Court is of the opinion that no sufficient account has been rendered by the trustee company, the Court may order an account to be rendered within such time as it may fix in that behalf, or if the Court is of the opinion that a sufficient case to require the company to furnish an account has not been made out it may dismiss the application.(3) On the hearing of an application under this section the Court may make such order as to costs as it thinks fit.
Division 4 - [Part III, Div. 4 Heading inserted by No. 64 of 1985, s. 24 ]Miscellaneous
37. Unclaimed money to be paid to Treasurer, &c.
[Section 37 Inserted by No. 36 of 1958, s. 4 and Sched. 4 ][Section 37 Substituted by No. 23 of 2009, s. 50, Applied:16 Jun 2009][Section 38, formerly 32 Renumbered by No. 36 of 1958, s. 4 and Sched. 4 ][Section 38 Repealed by No. 49 of 2010, s. 22, Applied:01 Jan 2011] . . . . . . . . [Section 39 Substituted by No. 20 of 1990, s. 16 ][Section 39 Substituted by No. 65 of 1997, s. 3, Applied:12 Dec 1997] [Section 39 Repealed by No. 49 of 2010, s. 22, Applied:01 Jan 2011] . . . . . . . . [Section 39AA Inserted by No. 74 of 1978, s. 4 ][Section 39AA Amended by No. 64 of 1985, s. 27 and Sched. 1 ][Section 39AA Amended by No. 20 of 1990, s. 17 ][Section 39AA Amended by No. 74 of 1993, s. 5 ][Section 39AA Amended by No. 2 of 2009, s. 7, Applied:27 Apr 2009] [Section 39AA Repealed by No. 49 of 2010, s. 22, Applied:01 Jan 2011] . . . . . . . .(1) This section applies to money that is paid to the Public Trustee pursuant to section 32 .(2) If the money is not claimed within 6 years, the Public Trustee must pay it to the Treasurer to the credit of the Public Account.(3) If any person claims the money within 10 years after it is credited to the Public Account, the Treasurer, without further appropriation than this section, may pay it to the claimant if satisfied on the advice of the Public Trustee that the claim is valid.(4) In this section, a reference to money is to be read as including a reference to securities, to interest on money and to a part of an amount of money.
39A. Certificate of trustee company to be accepted as evidence
[Section 39A Inserted by No. 117 of 1973, s. 3 ][Section 40, formerly 35 Renumbered by No. 36 of 1958, s. 4 and Sched. 4 ][Section 40 Repealed by No. 49 of 2010, s. 23, Applied:01 Jan 2011] . . . . . . . . [Section 40AA Inserted by No. 17 of 1996, s. 30 ][Section 40AA Repealed by No. 49 of 2010, s. 23, Applied:01 Jan 2011] . . . . . . . .(1) A certificate sealed by a trustee company certifying the nature of the company's appointment in relation to any estate, and any facts on the happening of which that appointment was made, shall be accepted by all courts, officers, and other persons as sufficient evidence of all the facts therein set forth, without the production of any other proof whatever.(2) The certificate referred to in subsection (1) shall be sufficient for the purpose of registering the trustee company 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 that land as in the case of probate or letters of administration, and shall have the same force and effect.(3) The certificate referred to in subsection (1) shall be equivalent, for registration purposes under any Act, to probate or letters of administration, and it shall not be necessary to register the probate or letters of administration.
[Section 40A Substituted by No. 20 of 1990, s. 18 ](1) The Governor may make regulations for the purposes of this Act.(2) [Section 40A Subsection (2) omitted by No. 49 of 2010, s. 24, Applied:01 Jan 2011] . . . . . . . .
[Section 41 Substituted by No. 64 of 1985, s. 25 ](1) The judges, or a majority of them, may make Rules of Court for the purposes of this Act, except for, or with respect to, any matter on which regulations may be made under section 40A .(2) Without limiting the generality of subsection 1 , the Rules of Court may make provision for, or with respect to, conferring a right to inspect and copy any information specified in an election filed in the office of the Registrar of the Court under section 10A (1) .
SCHEDULE 1 - Acts Repealed[Schedule 1 Amended by No. 64 of 1985, s. 27 and Sched. 1 ]
Year and number (if any) of Act | Short title of Act | 51 Vict. (Private) | "The Perpetual Trustees Company Act" | 51 Vict. (Private) | "The Tasmanian Trustees Association Act" | 3 Geo. V (Private) | National Executors Company Act 1912 | 19 Geo. V No. 65 | Equity Trustees Company Act 1928 | No. 15 of 1948 | Tasmanian Woolgrowers' Trustees and Executor Company Act 1948 |
SCHEDULE 2[Schedule 2 Substituted by No. 20 of 1990, s. 19 ][Schedule 2 Amended by S.R. 2003, No. 16, Applied:02 Apr 2003] [Schedule 2 Amended by No. 2 of 2009, s. 8, Applied:27 Apr 2009] [Schedule 2 Repealed by No. 49 of 2010, s. 25, Applied:01 Jan 2011]
SCHEDULE 2A[Schedule 2 Amended by No. 2 of 2009, s. 8, Applied:27 Apr 2009] [Schedule 2A Inserted by No. 2 of 2009, s. 9, Applied:27 Apr 2009] [Schedule 2A Substituted by S.R. 2009, No. 127, Applied:04 Nov 2009] [Schedule 2A Repealed by No. 49 of 2010, s. 25, Applied:01 Jan 2011]
SCHEDULE 3[Schedule 3 Amended by No. 64 of 1985, s. 27 and Sched. 1 ][Schedule 3 Form 1A repealed by No. 20 of 1990, s. 20 ][Schedule 3 Form 2 amended by No. 55 of 1965, s. 5 ][Schedule 3 Form 2 amended by No. 64 of 1985, s. 26 ][Schedule 3 Amended by No. 27 of 2003, s. 6, Applied:04 Jun 2003] [Schedule 3 Repealed by No. 49 of 2010, s. 25, Applied:01 Jan 2011]
SCHEDULE 4[Schedule 4 Repealed by No. 20 of 1990, s. 21 ]
SCHEDULE 5[Schedule 5 Heading amended by No. 20 of 1990, s. 22 ][Schedule 5 Inserted by No. 74 of 1978, s. 6 ][Schedule 5 Amended by No. 64 of 1985, s. 27 and Sched. 1 ][Schedule 5 Amended by No. 20 of 1990, s. 22 ][Schedule 5 Amended by No. 74 of 1993, s. 6 ][Schedule 5 Amended by No. 100 of 1999, s. 12, Applied:15 Dec 1999] [Schedule 5 Amended by No. 2 of 2009, s. 10, Applied:27 Apr 2009] [Schedule 5 Repealed by No. 49 of 2010, s. 25, Applied:01 Jan 2011]