Perpetuities and Accumulations Act 1985

This Act is the Perpetuities and Accumulations Act 1985.

The dictionary at the end of this Act is part of this Act.

Note 1 The dictionary at the end of this Act defines certain terms used in this Act, and includes references (signpost definitions) to other terms defined elsewhere.

For example, the signpost definition ‘trustee—see the Trustee Act 1925, dictionary.’ means that the term ‘trustee’ is defined in that dictionary and the definition applies to this Act.

Note 2 A definition in the dictionary (including a signpost definition) applies to the entire Act unless the definition, or another provision of the Act, provides otherwise or the contrary intention otherwise appears (see Legislation Act, s 155 and s 156 (1)).

A note included in this Act is explanatory and is not part of this Act.

Note See the Legislation Act, s 127 (1), (4) and (5) for the legal status of notes.

Except as provided by sections 12, 13 and 14, this Act does not apply in relation to a settlement taking effect before the commencement date.

This Act applies in relation to a settlement exercising a power of appointment, whether general or special, and taking effect on or after the commencement date, whether or not it applies in relation to the settlement creating the power of appointment.

For subsection (2), a gift over in default of an appointment under a power, whether general or special, shall be treated as a settlement exercising a power of appointment.

Where a provision of a will executed before the commencement date but taking effect on or after that date creates an interest—

if that provision would not have infringed the rule against perpetuities if this Act had not been made—the provision shall take effect as if this Act had not been made; or

if that provision would have infringed the rule against perpetuities if this Act had not been made—this Act applies to the provision.

The rule against perpetuities and the rule against perpetual trusts bind the Territory.

However, nothing in the rule against perpetuities, in the rule against perpetual trusts or in this Act affects any settlement made by the Territory.

Subsection (1) has effect except so far as another Territory law otherwise provides.

Subsection (2) has effect despite the Legislation Act 2001, section 121 (Binding effect of Acts).

For this Act, a will shall, in relation to a disposition contained in it, be deemed to take effect on the death of the testator.

For this Act, a person shall be treated as a member of a class if in the person’s case each and every condition identifying a member of the class is satisfied.

For the purposes of the rule against perpetuities, a power of appointment shall be treated as a special power unless—

in the settlement creating the power it is expressed to be exercisable by 1 person only; and

the power could at all times during its currency when that person is of full age and capacity be exercised immediately by him or her to transfer to, or otherwise vest in, himself or herself the whole of the interest governed by the power without the consent of any person or compliance with any other condition, not being a formal condition relating only to the mode of the exercise of the power.

Notwithstanding subsection (1), a power of appointment that would, but for the fact that it was made exercisable only by will, have been a general power shall be treated as a general power for the purpose of determining whether an appointment under the power infringes the rule against perpetuities.

For this section, an authority shall be taken to be unconditional notwithstanding any formal condition relating to the mode of exercise of the power.

For the purposes of the rule against perpetuities, the perpetuity period applicable to an interest created by a settlement shall, subject to this section, be 80 years from the date on which the settlement takes effect.

Where an appointment of an interest is made under a special power of appointment, the perpetuity period shall be reckoned from the date on which the settlement creating the power takes effect.

Where a child who is en ventre sa mère at the time when the perpetuity period applicable to an interest created by a settlement would, but for this subsection, have expired would, if that child had been born before that time, have taken that interest, that perpetuity period shall be extended until—

the expiry of the date on which the child is born; or

it becomes apparent that the child will not be born;

as the case requires.

Subsection (3) does not apply unless, before the expiry of the perpetuity period that would, but for that subsection, be applicable to the interest created by the relevant settlement, the trustees under that settlement have received notice, supported by a certificate signed by a duly qualified medical practitioner who has examined the woman carrying the child in question, that the child is en ventre sa mère.

Where a provision of a settlement which creates an interest would, but for this section or this section and section 10, infringe the rule against perpetuities, the interest shall be treated, until such time (if any) as it becomes certain that, notwithstanding section 10, it must vest, if at all, after the end of the perpetuity period, as if the provision did not infringe that rule, and its so becoming certain does not affect the validity of any thing previously done in relation to the interest.

Where a provision of a settlement which creates an interest consisting of the conferring of a general power of appointment would, but for this section or this section and section 10, infringe the rule against perpetuities, the interest shall be treated, until such time (if any) as it becomes certain that, notwithstanding section 10, the power will not be exercisable within the perpetuity period, as if the provision did not infringe that rule.

Where a provision of a settlement which creates an interest consisting of the conferring of any power or right (except a general power of appointment) would, but for this section or this section and section 10, infringe the rule against perpetuities, the interest shall be treated as regards any exercise of the power or right within the perpetuity period as if the provision did not infringe that rule, and the provision shall be treated as infringing that rule only if and so far as the power or right is not fully exercised within the perpetuity period.

Where—

a provision of a settlement creates an interest and the vesting of the interest depends on the attainment by a person of a specified age or by persons of respective specified ages; and

immediately before the expiration of the perpetuity period applicable to that interest—

that person has not attained the specified age, or any of those persons has not attained the age specified in relation to that person, as the case may be; and

the interest has not vested; and

the provision is, by reason of the operation of section 9, to be treated as if it did not infringe the rule against perpetuities;

the interest shall, for all purposes, be treated as if its vesting depended on the attainment by the person, or each of the persons referred to in paragraph (b) (i), as the case requires, of the age that he or she has attained immediately before the expiration of that perpetuity period.

Where an interest to which subsection (1) applies is ulterior to any other interest created by the settlement, that other interest shall not be defeated or otherwise adversely affected by the operation of subsection (1).

Subject to section 11, where—

a provision of a settlement creates an interest which is to be taken by a class of persons; and

immediately before the expiry of the perpetuity period applicable to that interest—

the interest has not vested; and

there is a person who is, or there are persons each of whom is, a member of that class (whether under the operation of subsection (1) or otherwise); and

the provision is, by reason only of the operation of section 9, to be treated as if it did not infringe the rule against perpetuities;

in relation to that interest, that class shall be taken to comprise only that person or those persons.

Where this section has effect in relation to a provision, the operation of this section does not affect the validity of any thing previously done in relation to the interest created by the provision.

Where—

section 10 (1) applies to an interest that is to be taken by a class of persons; and

a person would have been a member, or persons would have been members, of that class (whether under the operation of section 10 (1) or otherwise) if that person or those persons had survived to the expiry of the perpetuity period applicable to that interest; and

that person has, or those persons have, any children who survive to the expiry of that perpetuity period;

those children will take, per stirpes, the interest that their parent, or the respective interests that their parents, would have taken had that parent or those parents survived to the expiry of that perpetuity period.