Trustee Act 1893

This Act may be cited as The Trustee Act 1893 and shall come into operation on a day to be fixed by the Governor, by

Proclamation in the Government Gazette.

This Act is divided into parts, as follows:

Part I – Investments

Part II – Various powers and duties of trustees

Part III – Powers of the Court

Part IV – Special provisions as to appointment of new trustees

Part V – Miscellaneous and supplemental.

The Acts mentioned in the First Schedule hereto are repealed to the extent in such schedule mentioned. Such repeal shall not affect:

I Anything done under any enactment hereby repealed;

II Any right or privilege acquired, or liability incurred, under any enactment hereby repealed.

Any proceedings begun under the repealed enactments, or any of them, may be continued and concluded as though this Act had not been passed.

This Part applies to trusts created before or after the commencement of the Trustee Amendment Act (No. 2) 1995.

A trustee may, unless expressly forbidden by the instrument creating the trust:

(b) at any time, vary an investment or realise an investment of trust funds and reinvest money resulting from the realisation in any form of investment.

(1) Any rules and principles of law or equity that impose a duty on a trustee exercising a power of investment including, without limiting the generality of those duties, rules and principles that impose:

(a) a duty to exercise the powers of a trustee in the best interests of all present and future beneficiaries of the trust;

(b) a duty to invest trust funds in investments that are not speculative or hazardous;

(c) a duty to act impartially towards beneficiaries and between different classes of beneficiaries; or

continue to apply except so far as they are inconsistent with this or any other Act or the instrument creating the trust.

(2) Any rules and principles of law or equity that relate to a provision in an instrument creating a trust that purports to exempt, limit the liability of, or indemnify a trustee in respect of a breach of trust, continue to apply.

(3) If a trustee is under a duty to take advice, the reasonable costs of obtaining the advice are payable out of trust funds.

(1) Without limiting the matters that a trustee may take into account when exercising a power of investment, a trustee shall, so far as they are appropriate to the circumstances of the trust, have regard to:

(a) the purposes of the trust and the needs and circumstances of the beneficiaries;

(c) the nature of and risk associated with existing trust investments and other trust property;

(d) the need to maintain the real value of the capital or income of the trust;

(k) the liquidity and marketability of the proposed investment during, and on the determination of, the term of the proposed investment;

(n) the effect of the proposed investment in relation to the tax liability of the trust;

(p) the likelihood of inflation affecting the value of the proposed investment or other trust property;

(q) the cost (including commissions, fees, charges and duties payable) of making the proposed investment; and

(a) obtain and consider independent and impartial advice reasonably required for the investment of trust funds or the management of the investment from a person whom the trustee reasonably believes to be competent to give the advice; and

(b) pay out of trust funds the reasonable costs of obtaining the advice.

(1) If securities of a body corporate are subject to a trust, the trustee may concur in any scheme or arrangement:

(a) for or arising out of the reconstruction, reduction of capital or liquidation of, or the issue of shares by, the body corporate;

(b) for the sale of all or any part of the property and undertaking of the body corporate to another body corporate;

(c) for the acquisition of securities of the body corporate, or of control of the body corporate, by another body corporate;

(d) for the amalgamation of the body corporate with another body corporate; or

(e) for the release, modification or variation of rights, privileges or liabilities attached to the securities, or any of them,

in the same manner as if the trustee were beneficially entitled to the securities.

(2) The trustee may accept instead of, or in exchange for, the securities subject to the trust securities of any denomination or description of another body corporate party to the scheme or arrangement.

(3) If a conditional or preferential right to subscribe for securities in a body corporate is offered to a trustee in respect of a holding in that body corporate or another body corporate, the trustee may, as to all or any of the securities:

(a) exercise the right and apply capital money subject to the trust in payment of the consideration;

(b) assign to any person, including a beneficiary under the trust, the benefit of the right, or the title to the right, for the best consideration that can be reasonably obtained; or

(4) A trustee accepting or subscribing for securities under this section is, for the purposes of this Part, exercising a power of investment.

(5) A trustee may retain securities accepted or subscribed for under this section for any period for which the trustee could properly have retained the original securities.

(6) The consideration for an assignment made under subsection (3)(b) shall be held as capital of the trust.

(7) This section applies in relation to securities acquired before or after the commencement of the Trustee Amendment Act (No. 2) 1995 but subject to the instrument creating the trust.

Subject to the instrument creating the trust:

(a) purchase a dwelling house for a beneficiary to use as a residence; or

(b) enter into any other agreement or arrangement to secure for a beneficiary a right to use a dwelling house as a residence.

(2) Notwithstanding the terms of the instrument creating the trust, a trustee may, if to do so would not unfairly prejudice the interests of other beneficiaries, retain as part of the trust property a dwelling house for a beneficiary to use as a residence.

(3) A dwelling house purchased, retained or otherwise secured for use by the beneficiary as a residence may be made available to the beneficiary for that purpose on such terms and conditions consistent with the trust and the extent of the beneficiary's interest as the trustee thinks fit.

(4) The trustee may retain a dwelling house or any interest or rights in respect of a dwelling house acquired under this section after the use of the dwelling house by the beneficiary has ceased.

(a) any building or part of a building designed, or converted or capable of being converted, for use as a residence; and

(b) any amenities or facilities for use in association with the use of a dwelling house.

A trustee is not liable for breach of trust by reason only of continuing to hold an investment that has ceased to be:

(b) an investment properly made by the trustee exercising a power of investment;

(c) an investment made under this Part as previously in force from time to time; or