Settled Estates Act 1880

This

Act may be cited for all purposes as the Settled

Estates Act 1880.

The word settlement, as used in this Act, shall signify any Act of Parliament, deed, agreement, will, or other instrument, or any number of such instruments under or by virtue of which any hereditaments of any tenure or any estates or interests in any such hereditaments now or at any time stand limited to or in trust for any persons by way of succession, including any such instruments affecting the estates of any one or more of such persons exclusively.

The term settled estates, as used in this Act, shall signify all hereditaments of any tenure, and all estates or interests in any such hereditaments which are or shall be the subject of a settlement; and for the purpose of this

Act a tenant-in-tail after possibility of issue extinct shall be deemed to be a tenant for life.

All estates or interests in remainder or reversion not disposed of by the settlement, or reverting to a settlor, or descending to the heirs, executors, or administrators of a testator, shall be deemed to be estates coming to such settlor, or heirs, executors, or administrators under and by virtue of the settlement.

In determining what are settled estates within the meaning of this Act, the court shall be governed by the state of facts, and by the trusts or limitations of the settlement at the time of the said settlement taking effect.

The expression the court in this Act shall mean the Supreme Court of the State of South

Australia, or a judge thereof.

The court may, if it shall deem it proper and consistent with a due regard for the interests of all parties entitled under the settlement, and subject to the provisions and restrictions in this

Act contained, authorise leases of any settled estates, or of any rights or privileges over or affecting any settled estates, for any purpose whatsoever, whether involving waste or not, provided the following conditions be observed—

Firstly— Every such lease shall be made to take effect in possession at or within one year next after the making thereof, and shall be for a term of years not exceeding for an agricultural or occupation lease twenty-one years, and for a mining lease forty years, and for a repairing lease sixty years, and for a building lease ninety-nine years:

Secondly— On every such lease shall be reserved the best rent, or reservation in the nature of rent, either uniform or not, that can be reasonably obtained, to be made payable half-yearly or oftener without taking any fine, premium, or foregift, or other benefit in the nature of a fine, premium, or foregift: Provided always that in the case of a mining lease, a repairing lease, or a building lease, a peppercorn rent, or any smaller rent than the rent to be ultimately made payable may, if the court shall think fit so to direct, be made payable during all or any part of the first five years of the term of the lease:

Thirdly— Where the lease is of any earth, stone, or mineral, a certain portion of the whole rent or payment reserved shall be from time to time set aside and invested as hereinafter mentioned, that is to say, when and so long as the person for the time being entitled to the receipt of such rent is a person who by reason of his estate or by virtue of any declaration in the settlement is entitled to work such earth, coal, stone, or mineral for his own benefit, one-fourth part of such rent, and otherwise three-fourth parts thereof; and in every such lease sufficient provision shall be made to ensure such application of the aforesaid portion of the rent by the appointment of trustees or otherwise, as the court shall deem expedient:

Fourthly— Every such lease shall be by deed or by duly registered memorandum of lease, and the lessee shall execute a counterpart thereof, and every such lease shall contain a condition for re-entry on non-payment of the rent for a period of twenty-eight days after it becomes due, or for some less period to be specified in that behalf.

Subject and in addition to the conditions hereinbefore mentioned, every such lease shall contain such covenants, conditions, and stipulations as the court shall deem expedient with reference to the special circumstances of the demise.

The power to authorise leases conferred by this Act shall extend to authorise leases either of the whole or any parts of the settled estates, and may be exercised from time to time.

Any leases, whether granted in pursuance of this Act or otherwise, may be surrendered either for the purpose of obtaining a renewal of the same or not, and the power to authorise leases conferred by this Act shall extend to authorise new leases of the whole or any part of the hereditaments comprised in any surrendered lease.

The power to authorise leases conferred by this Act shall extend to authorise preliminary contracts to grant any leases, and any of the terms of such contracts may be varied in the leases.

The power to authorise leases conferred by this Act may be exercised by the court either by approving of particular leases or by ordering that powers of leasing, in conformity with the provisions of this

Act, shall be vested in trustees in manner hereinafter mentioned.

When application is made to the court either to approve of a particular lease, or to vest any powers of leasing in trustees, the court shall require the applicant to produce such evidence as it shall deem sufficient to enable it to ascertain the nature, value, and circumstances of the estate, and the terms and conditions on which leases thereof ought to be authorised.

When a particular lease or contract for a lease has been approved by the court, the court shall direct what person or persons shall execute the same as lessor; and the lease or contract executed by such person or persons shall take effect in all respects as if he or they was or were, at the time of the execution thereof, absolutely entitled to the whole estate or interest which is bound by the settlement, and so as to operate (if necessary) by way of revocation and appointment of the use or otherwise, as the court shall direct.

Where the court shall deem it expedient that any general powers of leasing any settled estates conformably to this Act should be vested in trustees, it may by order vest any such power accordingly, either in the existing trustees of the settlement, or in any other persons;

and such powers, when exercised by such trustees, shall take effect in all respects as if the power so vested in them had been originally contained in the settlement, and so as to operate (if necessary) by way of revocation and appointment of the use or otherwise, as the court shall direct; and in every such case the court, if it shall think fit, may impose any conditions as to consents or otherwise on the exercise of such power, and the court may also authorise the insertion of provisions for the appointment of new trustees from time to time for the purpose of exercising such powers of leasing as aforesaid.