Perpetuities and Accumulations Act 1992

Perpetuities and Accumulations Act 1992

This Act may be cited as the Perpetuities and Accumulations Act 1992.

This Act commences on a day to be fixed by proclamation.

In this Act, unless the contrary intention appears – court includes a person acting judicially; disposition includes the conferring or exercise of a power of appointment or any other power or authority to dispose of an interest in, or a right over, property and any other disposition of an interest in, or a right over, property; instrument includes a will and any other instrument, whether testamentary or not, by which a power of appointment, whether general or special is exercised, but does not include an Act of Parliament; perpetuity period, in the application of the rule against perpetuities to a disposition, means – a period determined in accordance with this Act as the perpetuity period applicable to that disposition; or if there is no period so determined, the period applicable to that disposition by virtue of the rule against perpetuities; power of appointment includes a discretionary power to transfer, grant or create a beneficial interest in property without valuable consideration; property includes any interest in real or personal property and any thing in action; spouse includes the person with whom a person is, or was at the time of his or her death, in a significant relationship, within the meaning of the Relationships Act 2003; the Supreme Court includes a judge of that Court; will includes a codicil to a will.

For the purposes of the application of the rule against perpetuities – a disposition contained in a will is taken to be made at the death of the testator; and a person is taken to be – a member of a class if all the conditions identifying a member of the class are satisfied in the case of that person; and a potential member of a class if only one or some of those conditions are satisfied in the case of that person but there is a possibility that the remainder of those conditions will in time be satisfied; and a person en ventre sa mère but subsequently born alive is treated as a person who was alive at the relevant time.

Except as provided in this Act – this Act, so far as it applies to wills, applies only to wills of testators who die after the commencement of this Act; and this Act, so far as it applies to instruments other than wills, applies only to instruments executed after the commencement of this Act.

Where a provision of this Act applies to a will or other instrument by which a power of appointment is exercised, that provision so applies in relation to the exercise of that power, whether or not it applies to the will or other instrument creating the power.

The application of this Act extends to a disposition made otherwise than by an instrument as if the disposition had been contained in an instrument, other than a will, executed when the disposition was made.

The application of this Act does not disturb the effect of a judgment or an order of a court given or made before the commencement of this Act.

Except as provided in subsection (2), this Act and the rule against perpetuities bind the Crown not only in right of Tasmania but also, so far as the legislative power of Parliament permits, the Crown in all its other capacities.

Nothing in this Act or in the rule against perpetuities affects a disposition of property made by the Crown.

Except as provided in this Act, where the instrument by which any disposition is made expressly provides that the perpetuity period applicable to the disposition under the rule against perpetuities is to be such number of years as is specified in the instrument, the perpetuity period, instead of being of any other duration, is the period so specified or a period of 80 years, whichever is the lesser period, from the date on which the disposition takes effect.

Subsection (1) does not apply in relation to a disposition made in the exercise of a special power of appointment but, if a period is specified under subsection (1) in the instrument creating the power, that period applies in relation to any disposition under that power as it applies in relation to the power itself.

If no period of years is specified in an instrument by which a disposition is made as the perpetuity period applicable to the disposition but a date certain is specified in the instrument as the date on which the disposition is to vest, the instrument is taken, for the purposes of this section, to specify as the perpetuity period applicable to the disposition a number of years equal to the number of years from the date of the taking effect of the instrument to the specified vesting date.

If no perpetuity period is applicable to a disposition by virtue of this section, the perpetuity period is to be determined by the rule against perpetuities as affected by this Act.

The spouse of a deceased person who is a life in being for the purposes of the rule against perpetuities is treated as a life in being for the purpose of the application of that rule to–

a disposition in favour of that spouse; and a disposition in favour of– a charity that attains; or a person who attains; or a class the members of which attain– according to the terms of the disposition, a vested interest on or after– the death of the survivor of a person who is a life in being and his or her spouse; or the death of his or her spouse; or the happening of any contingency during the lifetime of his or her spouse.

For the purposes of the rule against perpetuities, a power of appointment is to be treated as a special power unless – in the instrument creating the power it is expressed to be exercisable by one person only; and the power could, at all times during its currency when that person is of full age and capacity, be exercised by him or her so as immediately to transfer to or otherwise vest in himself or herself the whole of the interest governed by the power without the consent of any other person or compliance with any other condition that is not a formal condition relating only to the mode of exercise of the power.

For the purpose of determining whether a disposition made under a power of appointment exercisable by will only is void for remoteness, the power is treated as a general power where it would have fallen to be so treated if exercisable by deed.

Where, but for this section and section 11, a disposition would be void on the ground that the interest disposed of might not become vested until too remote a time, the disposition is treated until such time, if any, as it is established that the vesting must occur, if at all, after the perpetuity period as if the disposition were not subject to the rule against perpetuities.

Where it is established that a vesting must occur after the perpetuity period as mentioned in subsection (1), nothing in that subsection affects the validity of anything previously done in relation to the interest disposed of by way of advancement, application of intermediate income or otherwise.

Where, but for this section and section 11, a disposition consisting of the conferring of a general power of appointment would be void on the ground that the power might not become exercisable until too remote a time, the disposition is treated as if it were not subject to the rule against perpetuities until such time, if any, as it is established that the power will not be exercisable within the perpetuity period.

Where, but for this section and section 11, a disposition consisting of the conferring of a power or right that is not an option to which section 15(2) or (4) refers would be void on the ground that the power or right might be exercised at too remote a time, the disposition is to be treated – with regard to any exercise of the power or right within the perpetuity period, as if it were not subject to the rule against perpetuities; and subject to this section and section 11, as void for remoteness only if and so far as the power or right is not fully exercised within that period.

In the application of this section to a disposition where the duration of the perpetuity period is not determined by virtue of section 6 or 15, that period is to be determined as follows:where it is provided in the instrument making the disposition that only a particular person is, or only particular persons are, to be treated as the measuring life or lives, the duration of the perpetuity period is to be determined by reference to his or her life or their lives and no other lives; where any persons referred to in subsection (6) as measuring lives are individuals in being and ascertainable at the commencement of the perpetuity period, the duration of the perpetuity period is to be determined by reference to their lives and no other lives, but so that the lives of any description of persons referred to in that subsection are to be disregarded if the number of persons of that description is such as to render it impracticable to ascertain the date of death of the survivor; where there are no such measuring lives, the perpetuity period is 21 years.

For the purposes of subsection (5), the persons who are to be treated as measuring lives are as follows:a person who is specified in the instrument making the disposition as being a measuring life for the purposes of the disposition; the person or persons by whom the disposition was made; a person to whom or in whose favour the disposition was made, namely – in the case of a disposition to a class of persons, any member or potential member of the class; or in the case of an individual disposition to a person taking only on certain conditions being satisfied, a person as to whom some of the conditions are satisfied and the other conditions may in time be satisfied; or in the case of a disposition made in exercise of a special power of appointment – the donee of the power; or where the power is exercisable in favour of members of a class, a member or potential member of the class; or where the power is exercisable in favour of one person only, that person or, where the object of the power is ascertainable only on certain conditions being satisfied, a person in respect of whom some of the conditions are satisfied and the other conditions may in time be satisfied; or in the case of a disposition consisting of the conferring of a power or right, a person on whom the power or right is conferred; a spouse who is treated as a life in being by virtue of section 7; a person having a child or grandchild referred to in paragraph (c) or any of whose children or grandchildren, if subsequently born, would by virtue of his or her descent fall within that paragraph; where a disposition is expressly limited to take effect – during the life of a person; or on the death of a person, whether as an individual or as a survivor of a group of persons, or on the failure or determination of his or her prior interest – that person; a parent or grandparent of a person referred to in paragraph (f).

Where there arises, in the application of the rule against perpetuities to a disposition or in determining the right of a person to put an end to a trust or an accumulation, a question that depends on the capacity of a person to procreate a child at a future time – it is presumed, subject to paragraph (b), that – a male person can procreate a child at the age of 12 years or over but not under that age; and a female person can procreate a child at the age of 12 years or over but not under that age or over the age of 55 years; but in the case of a living person, evidence may be given in any proceedings to show that he or she will, or will not, be capable of procreating a child at the time in question.

Where, by virtue of subsection (1), a person is treated as incapable of procreating a child at a particular time and he or she in fact procreates a child at that time, the Supreme Court may make such order as it thinks fit for placing the persons interested in the property comprised in a disposition, so far as may be just, in the position they would have held if subsection (1) were not applicable to the disposition, trust or accumulation concerned.

Subject to an order made under subsection (2), where in any proceedings relating to a disposition, a person is treated by virtue of subsection (1) as capable or incapable of procreating a child at a particular time, that person is to be so treated for the purpose of any question that may arise in the application of the rule against perpetuities to the same disposition in any subsequent proceedings.

This section, except subsection (1)(b), has effect in relation to the possibility that a person may at any time become a parent of another person by adoption or the operation of any law, whether in force in Tasmania or not.

Where a disposition is limited by reference to the attainment by any person or persons of a specified age exceeding 21 years and it is apparent at the time the disposition is made or becomes apparent at a subsequent time – that the disposition would, but for this section, be void for remoteness; and that it would not be so void if the specified age had been 21 years – the disposition is to be treated for all purposes as if, instead of being limited by reference to the age in fact specified, it had been limited by reference to the age nearest to that age that would, if specified instead, have prevented the disposition from being void for remoteness.

Where, in the case of any disposition, different ages exceeding 21 years are specified in relation to different persons – the reference in subsection (1)(b) to the specified age is to be construed as a reference to all the specified ages; and subsection (1) operates to reduce each such age so far as is necessary to save the disposition from being void for remoteness.

Where the inclusion of – a person who is a potential member of a class; or an unborn person who at birth would become a member or potential member of a class – would prevent this section from operating to save a disposition from being void for remoteness, that person is to be treated as excluded from the class for all the purposes of the disposition.

Where, in the case of a disposition to which subsection (3) does not apply, it is apparent at the time the disposition is made or becomes apparent at a subsequent time that, but for this subsection, the inclusion of – a person who is a potential member of a class; or an unborn person who at birth could become a member or potential member of a class – would cause the disposition to be treated as void for remoteness, that person, unless his or her exclusion would exhaust the class, is to be treated for all the purposes of the disposition as excluded from the class.

Where this section has effect in relation to a disposition to which section 9 applies, the operation of this section does not affect the validity of any thing previously done in relation to the interest disposed of by way of advancement, application of intermediate income or otherwise.