Trustee Act 1925

This Act may be cited as the Trustee Act 1925.

This Act shall commence and come into operation on the first day of March, one thousand nine hundred and twenty-six.

The Acts mentioned in the Schedule to this Act are to the extent therein expressed hereby repealed.

All rules of court made under the authority of any Act hereby repealed and being in force at the commencement of this Act shall so far as applicable be deemed to have been made under the authority of this Act.

Notes in the text of this Act do not form part of this Act.

In the interpretation of this Act, unless the context or subject-matter otherwise indicates or requires—

Administrator means administrator within the meaning of the Probate and Administration Act 1898 and includes the NSW Trustee acting as collector of an estate under an order to collect.

Contingent right, as applied to land, includes a contingent or executory interest, a possibility coupled with an interest, whether the object of the gift or limitation of the interest or possibility is or is not ascertained, also a right of entry, whether immediate or future, and whether vested or contingent.

Convey and conveyance, applied to any person, include the execution or doing by that person of every necessary or suitable assurance act and thing for conveying, assigning, appointing, surrendering, or otherwise transferring or disposing of property.

Court means the Supreme Court.

Executor means the executor to whom probate has been granted and includes an executor by right of representation.

Government securities include Government stocks, funds, bonds, debentures and Treasury bills.

Incapable person means a person not a minor who is incapable through mental infirmity, arising from disease or age, of managing his or her affairs, but who is not an insane person.

Insane person means a person who has been found or declared, whether by inquisition or under any Lunacy Act in force at the time, to be insane or of unsound mind and incapable of managing himself or herself or his or her affairs.

Instrument includes deed will and Act of Parliament.

Joint tenant includes joint owner.

Land includes tenements and hereditaments, corporeal and incorporeal, and every estate and interest therein, whether vested or contingent, freehold or leasehold, and whether at law or in equity, in severalty or otherwise.

Legal representative means executor or administrator.

Minor means a person under the age of eighteen years.

Mortgage includes and relates to every estate and interest regarded in equity as merely a security for money.

Mortgagee includes any person from time to time deriving title to the mortgage under the original mortgagee.

Mortgagor includes any person from time to time deriving title to the equity of redemption under the original mortgagor, or entitled to redeem a mortgage, according to the person’s estate interest or right in the mortgaged property.

NSW Trustee means the NSW Trustee and Guardian constituted under the NSW Trustee and Guardian Act 2009.

Order includes judgment.

Pay into court and payment into court in relation to stocks and securities, include the deposit or transfer of the same in or into court.

Possessed extends to receipt of income of, and to any vested estate less than a life estate, legal or equitable, in possession or in expectancy, in any property.

Property includes real and personal property, and any estate or interest in any property, real or personal, and any debt, and any thing in action, and any claim or demand, and any other right or interest, whether in possession or not.

Purchaser includes a lessee or mortgagee, or other person who for valuable consideration takes or deals for any property; and purchase has a meaning corresponding with that of purchaser; but sale means only a sale properly so-called.

Regulation means regulation made under this Act.

Right includes estate and interest.

Security includes stocks, funds, shares.

Stock includes paid-up shares; and, so far as relates to vesting orders made by the Court under this Act, includes any fund annuity or security transferable in books kept by any corporation company or society, or by instrument of transfer, either alone or accompanied by other formalities, and any share or interest therein.

Transfer in relation to stock includes the performance and execution of every deed, power of attorney, act, and thing on the part of the transferor to effect and complete the title in the transferee.

Trust does not include the duties incident to an estate conveyed by way of mortgage; but, with this exception, includes implied and constructive trusts, and cases where the trustee has a beneficial interest in the trust property, and the duties incident to the office of legal representative of a deceased person.

Trustee has a meaning corresponding with that of trust; and includes legal representative and the NSW Trustee and a trustee company.

Trustee company means an incorporated company authorised by Act of Parliament of this State to act as trustee in New South Wales.

Trustee for sale means a trustee in whom a trust for sale or a power of sale of property is vested.

Will includes codicil.

Note—

The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act.

A new trustee may by registered deed be appointed in place of a trustee, either original or substituted, and whether appointed by the Court or otherwise.

A new trustee may be so appointed in any of the following cases, namely—

where a trustee is dead,

where a trustee remains out of New South Wales for more than one year without having properly delegated the execution of the trust,

where a trustee remains out of New South Wales for more than two years,

where a trustee desires to be discharged from all or any of the trusts or powers reposed in or conferred on the trustee,

where a trustee refuses or is unfit to act in such trusts or powers, or is incapable of acting therein, or is a minor,

where a trustee is removed under a power contained in the instrument creating the trust,

where a trustee being a corporation is dissolved.

Provided that a new trustee may not be appointed on the sole ground that a trustee remains out of New South Wales for more than two years if such trustee has delegated the execution of the trust pursuant to the Trustee and Wills (Emergency Provisions) Act 1940 and such delegation remains in force.

The person to be appointed a trustee may be the person, or one of the persons, by whom or with whose consent the appointment is or may be made.

The appointment may be made by the following persons, namely—

by the person or persons nominated for the purpose of appointing new trustees by the instrument, if any, creating the trust, or

if there is no such person, or no such person able and willing to act, then by the surviving or continuing trustees or trustee for the time being, or by the legal representative of the last surviving or continuing trustee.

The appointment may be made for the whole or any part of the trust property, and on the appointment—

two or more trustees may be appointed concurrently,

the number of trustees may be increased, but not beyond four,

a separate set of trustees may be appointed for any distinct part of the trust property, that is to say, for any part for the time being held on trusts distinct from those relating to any other part or parts, notwithstanding that no new trustees or trustee are or is to be appointed for other parts, provided that the number of trustees in any separate set shall not exceed four,

any existing trustee may be appointed or remain one of the separate set of trustees,

if only one trustee was originally appointed, then one separate trustee may be appointed for the distinct part,

it shall not be obligatory to appoint more than one new trustee where only one trustee was originally appointed, or to fill up the original number of trustees where more than two trustees were originally appointed.

By the appointment a trustee in place of whom the new trustee is appointed shall be discharged from the trust, provided that, except where only one trustee was originally appointed, a trustee shall not be so discharged unless there will be left after the discharge at least two trustees, or the NSW Trustee, or a trustee company, to perform the trust.

Any conveyance or thing requisite for vesting the trust property, or any part thereof, jointly in the persons who are the trustees, shall be executed or done.

Every new trustee appointed under this section, as well before as after all the trust property becomes by law or by conveyance or otherwise vested in the new trustee, shall have the same powers authorities and discretions, and may in all respects act as if the new trustee had been originally appointed a trustee by the instrument, if any, creating the trust.

The provisions of this section relative to a trustee who is dead include the case of a person nominated trustee in a will but dying before the testator.

The provisions of this section relative to a person nominated for the purpose of appointing new trustees apply, whether the appointment is to be made in a case specified in this section or in a case specified in the instrument, if any, creating the trust, but where a new trustee is appointed under this section in a case specified in that instrument, the appointment shall be subject to the terms applicable to an appointment in that case under the provisions of that instrument.

The provisions of this section relative to a continuing trustee include a refusing or retiring trustee, if willing to act in the execution of the provisions of this section, provided that—

where there is in fact a continuing trustee, nothing in this section shall authorise a refusing or retiring trustee to act apart from the continuing trustee,

if a refusing or retiring trustee does not act in the execution of the provisions of this section, the fact that the refusing or retiring trustee was willing to act shall not affect the validity of an appointment made by any other person.

Nothing in this section shall give power to appoint any person as an executor or administrator.

Except as otherwise provided in subsection (12), this section applies only if and as far as a contrary intention is not expressed in the instrument, if any, creating the trust, and shall have effect subject to the terms of that instrument and to the provisions therein contained.

This section applies to trusts created either before or after the commencement of this Act, and extends to the appointment of a new trustee where the case for the appointment arose before the commencement of this Act.

An appointment of a new trustee made before the commencement of this Act, under a power conferred by statute or by the instrument, if any, creating the trust, shall not be deemed to be invalid for the reason only that on the appointment the number of the trustees was increased or decreased, unless the increase or decrease was expressly forbidden by statute or by that instrument, but nothing in this subsection shall be deemed to invalidate any appointment of a new trustee made before the commencement of this Act.

A new trustee may by registered deed be appointed in addition to any existing trustee or trustees.

A new trustee may be so appointed in any of the following cases, namely—

where a sole trustee other than the NSW Trustee or a trustee company is or has been originally appointed to act in a trust, or

where, in the case of any trust, there are not more than three trustees, either original or substituted, and whether appointed by the Court or otherwise, and none of the trustees is the NSW Trustee or a trustee company.

The person to be appointed a trustee may be the person, or one of the persons, by whom or with whose consent the appointment is or may be made.

The appointment may be made by the following persons, namely—

by the person or persons nominated for the purpose of appointing new trustees by the instrument, if any, creating the trust, or

if there is no such person, or no such person able and willing to act, then by the trustee or trustees for the time being.

The appointment may be made for the whole or any part of the trust property, and on the appointment—

two or more trustees may be appointed concurrently,

the number of trustees shall not be increased beyond four.

Except as provided by the instrument, if any, creating the trust, or by any statutory enactment to the contrary, it shall not be obligatory to appoint any additional trustee.

Subsections (7), (8), (10), (12), (13), and (14) of section 6 shall apply to the appointment of an additional trustee.

A trustee may by registered deed retire from the trust without any new trustee being appointed in the trustee’s place.

A trustee may not so retire, unless the trustee’s co-trustees and such other person, if any, as is empowered to appoint trustees, consent by the same or other registered deed to the retirement, and there will be left after the retirement at least two continuing trustees, or the NSW Trustee, or a trustee company, to perform the trust.

Two or more trustees may retire concurrently.

By the retirement the trustee shall be discharged from the trust, provided that, if in order to vest any part of the trust property in the continuing trustees alone, it is necessary that it should be duly transferred, the retiring trustee shall not be discharged in respect of that part until it is duly transferred.

At any time after the registration of the deed or deeds of consent and retirement the continuing trustees shall have the same powers authorities and discretions, and may in all respects act as if the retiring trustee were wholly discharged from the trust.

Any conveyance or thing required for vesting the trust property in the continuing trustees alone shall be executed or done.

Nothing in this section shall authorise any retirement from the office of an executor or administrator.

This section applies only if and as far as a contrary intention is not expressed in the instrument, if any, creating the trust, and shall have effect subject to the terms of that instrument and to the provisions therein contained.

This section applies to trusts created either before or after the commencement of this Act.

Where a new trustee is appointed, the execution and registration of the deed of appointment shall without any conveyance, except as otherwise provided in this section, vest in the persons who become and are the trustees for performing the trust, as joint tenants and for the purposes of the trust, the trust property for which the new trustee is appointed.

Where a trustee retires, the execution and registration of the deed or deeds of consent and retirement shall without any conveyance, except as otherwise provided in this section, vest in the continuing trustees alone as joint tenants and for the purposes of the trust, all the trust property which is jointly vested in the continuing trustees and the retiring trustee.

In the case of land subject to the provisions of the Real Property Act 1900, the property shall not vest until either—

the appropriate transfer is executed and registered, so that the property is duly transferred, or

an entry of the vesting is made by the Registrar-General.

Any such entry shall have the same effect as if the property were duly transferred.

In the case of any property subject to the provisions of the Closer Settlement Acts, the Crown Land Management Act 2016, the Mining Act 1992 or the Offshore Minerals Act 1999, or any other Act relating to Crown lands, the property shall not vest until either—

the appropriate transfer is executed and registered so that the property is duly transferred, or

an entry of the vesting is made in the appropriate register kept under the provisions of the Act to which such property is subject.

Any such entry shall have the same effect as if the property were duly transferred.

In the following cases the property shall not vest until the appropriate transfer is executed and registered so that the property is duly transferred, that is to say, in the case of—

any property comprised in a mortgage for securing money subject to the trust, where the property is not either land subject to the provisions of the Real Property Act 1900 or land conveyed on trust for securing debentures or debenture stock,

(Repealed)

any property a conveyance of which is required to be registered by or under any Act, whether of this State or otherwise, other than the Acts mentioned in subsections (3) and (3A).

In the case of any property that is only transferable in books kept by a corporation company or other body, or in manner directed by or under any Act, whether of this State or otherwise, the property shall not vest until it is duly transferred.

In the case of land held under a lease which contains any covenant condition or agreement against assignment or disposing of the land without licence or consent, the land shall not vest until it is duly transferred, unless—

before the execution of the deed of appointment, or the deed or deeds of consent and retirement, as the case may be, the requisite licence or consent to the assignment or disposition has been obtained, or

by virtue of any statute or rule of law the vesting would not operate as a breach of covenant or give rise to a forfeiture.

In this subsection lease includes an underlease and an agreement for a lease or underlease.

If any property does not vest under this section until transfer or registration, the execution and registration of the deed of appointment, or of the deed or deeds of consent and retirement, as the case may be, shall nevertheless vest the right to call for a transfer of the property, and to sue for or recover the property.

This section extends to an appointment by deed, or a retirement by deed, under the provisions of the instrument, if any, creating the trust.

This section applies to trusts created either before or after the commencement of this Act.

If a person who is appointed by will both executor and trustee thereof renounces probate, or after being duly cited fails to apply for probate, the renunciation or failure shall be deemed to be a disclaimer of the trust contained in the will.

Where a person is, by a will, appointed both executor and trustee thereof but probate of the will or administration with the will annexed is, by or under this or any other Act, granted or transferred to the NSW Trustee or a trustee company in the place of that person or in addition to that person, then the NSW Trustee or trustee company shall, without further appointment, be deemed to be appointed trustee or one of the trustees of the will, as the case may require.

(Repealed)

This section applies only to a renunciation failure grant or transfer after the commencement of this Act.

If any property is vested in any person as executor of a will under which the person is the trustee of the property or is beneficially entitled thereto, such person may, at any time after all the executorial duties with respect to the property have been duly performed, declare by registered instrument in writing that he or she has ceased to hold the property as executor and that he or she holds the same as trustee or as beneficiary, as the case may be.

Where a declaration is so made, the property shall, except as otherwise provided in this section, be deemed to be held in accordance with the declaration.

In the case of land subject to the provisions of the Real Property Act 1900—

where a declaration is so made that the executor holds as trustee, the property shall not be deemed to be so held until the Registrar-General enters a caveat forbidding the registration of any instrument not in accordance with the trusts and provisions declared and contained in the will so far as concerns the land affected by the declaration,

where a declaration is so made that the executor holds as beneficiary, the property shall not be deemed to be so held until the Registrar-General withdraws any inconsistent caveat.

This section applies to wills made either before or after the commencement of this Act, and whether the executorial duties have been performed before or after the commencement of this Act.

Any instrument by which a new trustee is appointed, or by which a trustee retires or disclaims, or by which an executor declares that the executor holds as trustee or as beneficiary, as the case may be, may be registered in the office of the Registrar-General in the manner and on payment of the fees prescribed by regulation under the Conveyancing Act 1919.

This section extends to an appointment or retirement, whether under this Part or under the provisions of the instrument creating the trust or otherwise, and to a consent to an appointment or retirement.

This section applies whether the trust does or does not relate to land subject to the provisions of the Real Property Act 1900.

In the case of land subject to the provisions of the Real Property Act 1900, where an appointment or retirement or an instrument by which an executor declares that the executor holds as trustee or as beneficiary, as the case may be, is registered, the Registrar-General is hereby authorised and directed to make an entry of the vesting of the trust property or to enter vary and withdraw caveats as may be proper in the circumstances—

Provided that the Registrar-General shall not be bound so to do until a written request is made to the Registrar-General by the persons in whom the property is to be vested, such evidence is given as the Registrar-General may reasonably require, and such notice, if any, is given to any other person as the Registrar-General may direct.

Nothing in this section shall prevent an appointment retirement disclaimer or other instrument from being registered under any law now in force.

This section applies to instruments executed either before or after the commencement of this Act.