Trustee Companies Act 1947

This Act is the Trustee Companies Act 1947.

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 ‘books—see the Corporations Act, section 9.’ means that the term ‘books’ is defined in that section 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.

If a trustee company is named expressly or by implication as executor in the last will and testament or in the codicil to the last will and testament of any testator, that company may act as executor, and may apply for and obtain probate of the will of the testator and perform and discharge all the acts and duties of an executor.

If a person is named expressly or by implication as executor of the will of a deceased person and is entitled to apply for and obtain probate of the will without reserving leave to any other person to apply for probate, that firstmentioned person may—

join with a trustee company in an application for a grant of probate of the will to that person and the trustee company jointly; or

instead of applying personally, authorise a trustee company to apply for a grant of letters of administration with the will annexed.

If an application is made under subsection (1), the Supreme Court may grant letters of administration with the will annexed in accordance with the application unless the testator by his or her will has expressed the desire that—

the office of executor should not be delegated; or

a trustee company or that particular trustee company should not act in the trusts of the will.

If a person is named expressly or by implication as executor of the will of a deceased person and is entitled to apply for and obtain probate of the will jointly with any other person, that firstmentioned person may—

join with a trustee company and any other person entitled to apply for probate in an application for a grant of probate of the will to that person, the trustee company and any other such person jointly; or

instead of applying personally, authorise a trustee company to apply for a grant of probate of the will, either—

alone, with leave reserved for any person to come in and prove; or

jointly with any other person entitled to apply for probate;

in the same way as if the trustee company had been originally named as an executor of the will in addition to or in the place of that firstmentioned person.

If an application is made under subsection (1), the Supreme Court may grant probate of the will in accordance with the application unless the testator by his or her will has expressed the desire that—

the office of executor should not be delegated; or

a trustee company or that particular trustee company should not act in the trusts of the will.

If a person is entitled to apply for and obtain a grant of letters of administration with the will annexed of the estate of a deceased person, the person may—

join with a trustee company in an application for a grant of letters of administration with the will annexed to the person and the trustee company jointly; or

instead of applying personally, authorise a trustee company to apply for a grant of letters of administration with the will annexed.

If an application is made under subsection (1), the Supreme Court may grant letters of administration with the will annexed in accordance with the application unless the testator by his or her will has expressed the desire that the office of administrator should not be held by a trustee company or that particular trustee company.

If a person is entitled to obtain administration of the estate of a person who died intestate, the person may—

join with a trustee company in an application for a grant of letters of administration of the estate to the person and the trustee company jointly; or

instead of applying personally, authorise a trustee company to apply for a grant of letters of administration of the estate.

If an application is made under subsection (1), the Supreme Court may grant letters of administration of the estate in accordance with the application.

If—

administration of an estate with or without the will annexed; or

probate of a will;

is granted to a trustee company, either alone or jointly with another person, the trustee company may perform and discharge all the acts and duties of administrator, administrator with the will annexed or executor, as the case may be.

If a trustee company is empowered under this Act to apply for probate or for letters of administration, the Supreme Court may receive and act on an affidavit made by the managing director or manager of the company in place of any affidavit required to be made by persons making application for probate or for letters of administration.

This section applies if probate or letters of administration are granted to a trustee company in relation to an estate.

The paid and unpaid capital and all other assets of the trustee company are liable for the proper administration of the estate.

If any court or person has power to appoint any person as—

trustee; or

receiver; or

guardian of the estate of a child;

a trustee company may be so appointed.

Subject to this section, a trustee company may be appointed, or may continue to act, as sole trustee in all cases notwithstanding that it is provided by the terms of the instrument (if any) creating the trust or of any power or otherwise that there shall be more than 1 trustee to perform the trust.

If a trustee company and 1 or more individuals are co-trustees, any 1 or more of those individuals may retire, and the company shall, for the purposes of any law relating to the retirement of trustees and the vesting of the trust property, be deemed to be equivalent to 2 trustees.

A trustee company shall not be appointed in any case in which the instrument creating the trust or power forbids the appointment of a trustee company or of that particular trustee company.

A trustee company shall not be appointed or be entitled to act as sole trustee in any case in which the instrument creating the trust or power expressly provides that there shall be another trustee in addition to a trustee company or that a trustee company or that particular trustee company shall not be appointed or act as sole trustee.

If a trustee company is appointed or acts in any of the offices mentioned in subsection (1), all the capital of the company, both paid and unpaid, and all other assets of the company and the directors, manager, and assistant manager and their respective estates shall be liable for the proper discharge of the duties of that office.

No bond, recognisance, or other security for the proper discharge of such duties shall be required to be given by or on behalf of a trustee company.