Trusts Act 1973 – 8 November 2013
Trusts Act 1973 – 8 November 2013
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If there is no trustee of land which is trust property, the persons beneficially entitled to possession/rent and profits may exercise powers of a ‘statutory trustee’ pursuant to this Act.
- Sections 5, 6
A person with an interest in trust property who is aggrieved by the actions of a trustee may apply to the Supreme Court for review/appropriate orders.
- Sections 5, 8
The number of trustees of a trust shall generally not exceed 4 in total.
- Sections 10, 11
A new trustee may be appointed pursuant to section 12 of this Act where an original trustee is dead, refuses to act, is unfit to act, is an infant, is removed, etc. If the instrument of trust is silent on who should be the new trustee, it is possible for the personal representative of the original trustee to appoint a person. In the instance of death of the last remaining trustee of the trust, the Public Trustee steps in as owner of the trust property until the appointment of a new trustee or grant of probate/letters of administration.
- Sections 5, 10, 12, 15, 16
A trustee may retire (with consent) from the position of trustee without a new appointment being made where there will be a trustee corporation or at least two individuals remaining for the relevant trust.
- Sections 5, 10, 14, 15
An instrument of appointment or discharge of a trustee shall not operate as a breach of covenant or condition or occasion any forfeiture of any lease, underlease, agreement for lease, or other property. Note: Lease is defined to include ‘bailment’.
- Sections 5, 10, 15
Upon the death of the sole owner of mortgaged property, the Public Trustee steps in as owner of the property until the grant of probate/letters of administration.
- Sections 10, 17
A trustee may invest trust funds in any form of investment, unless expressly forbidden by the instrument creating the trust. Note: If a trustee is under a duty to obtain investment advice, the reasonable cost of obtaining the advice is payable out of trust funds.
- Sections 20, 21, 22, 23, 24, 28, 30, 30A, 30B, 30C
A trustee may purchase a dwelling house for a beneficiary to use as a residence. A trustee may also retain a residence for a beneficiary if to do so would not unfairly prejudice the interests of other beneficiaries.
- Sections 20, 28
Every trustee in respect of trust property may sell the property or any part of the property, let or sublet the property at a reasonable rent for any term not exceeding 1 year, grant a lease or sublease of the property at a reasonable rent for a term not exceeding 30 years for a building lease and 21 years for any other lease. Note: A statutory trustee’s power may be subject to Supreme Court approval. It is important to also note that Lease is defined to include ‘bailment’.
- Sections 5, 6, 31, 32, 34, 35, 36, 37
Every trustee may repair, maintain, upkeep or renovate trust property. There is also a power to make improvements to trust property. Note: Supreme Court approval is required for improvements exceeding $10,000. In addition, every trustee has the power to pay rates, premiums, assessments, insurance premiums and other outgoings in respect of the property. The power to satisfy deceased estate legacies are set out in subparagraph 33(1)(l) of this Act and is subject to notification requirements. Where trust property is being used in carrying on a business, the trustee may continue the business for 2 years from the commencement of the trust. Where a deceased estate is burdened by an existing lease, all liabilities under the lease are to be satisfied prior to distribution of the deceased estate – see section 66 of the Act. A trustee may protect himself or herself from liability on distribution of a deceased estate by advertising impending distribution in the manner set out in section 67 of the Act. Note: Lease is defined to include ‘bailment’.
- Sections 5, 31, 33, 44, 47, 57, 58, 65, 66, 67
Income from trust property may be paid to an infant’s parent/guardian in the trustee’s discretion for the infant’s maintenance, education, advancement or benefit where the infant is the relevant beneficiary of the trust property deriving the income.
- Sections 5, 60, 61, 63
Trust property may be paid or applied to a person in the trustee’s discretion for the maintenance, education, advancement or benefit of the person where the person is the relevant beneficiary of the trust property. Note: Supreme Court approval is required where the amount exceeds $2,000 or one-half of the trust property.
- Sections 5, 60, 62, 63
A trustee may reimburse himself or herself for or pay or discharge out of the trust property all expenses reasonably incurred in or about the execution of the trusts or powers.
- Sections 65, 72
Any trustee may apply upon a written statement of facts to the Supreme Court for directions concerning any property subject to a trust, or respecting the management or administration of that property, or respecting the exercise of any power or discretion vested in the trustee.
- Sections 5, 79, 96, 97
Reason for law
Sections 4 and 38 contain the term ‘Crown’. This term may be replaced with a modern alternative.
Section 33 contains the phrase ‘ex parte’. This phrase may not be understood by members of the public.
Sections 38 and 41 contain the phrase ‘bona fide’. This phrase may not be understood by members of the public.
Section 61 contains the phrase ‘loco parentis’. This phrase may not be understood by members of the public.
The heading of section 78 contains a reference to the case ‘Allhusen v Whittell’. This case may not be known by members of the public.
Section 105 contains the phrase ‘cy pres’. This phrase may not be understood by members of the public.
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