{"id":"trustee-companies-act-1988","name":"Trustee Companies Act 1988","slug":"trustee-companies-act-1988","collection":"act","jurisdiction":"sa","status":"in_force","isInForce":true,"actNumber":null,"makingDate":null,"administeringDepartment":null,"currentVersion":{"id":110592,"registerId":"sa-trustee-companies-act-1988-current","compilationNumber":null,"startDate":"2026-04-03","status":"InForce","reasons":null,"registeredAt":null},"sections":[{"sectionNumber":"1","sectionType":"section","heading":"Trustee Companies Act 1988","content":"South Australia\nTrustee Companies Act 1988\nAn Act to make provision in relation to trustee companies.\n\nContents\nPart 1—Preliminary\n1\tShort title\n3\tInterpretation\nPart 2—Powers of trustee companies\n4\tTrustee company may act as executor or administrator\n5\tTrustee company may act as trustee, agent, attorney, manager or receiver\n6\tTrustee company may act for children or persons who are unable to manage their affairs\n7\tOfficers may represent or make affidavits etc for company\n8\tTrustee company may act jointly\n13\tInvestment of trust funds\n14\tMoney from several estates may be invested as one fund\n16\tPower of trustee company acting in representative capacity to hold its own shares etc\nPart 3—Duties and liabilities of trustee companies\n23\tDirectors and managers responsible to the Court\n24\tTrustee company may be removed from office\n25\tAppointment by Court of administrator of trustee company's affairs\nPart 3A—Transfer of estate assets and liabilities\n25A\tInterpretation\n25B\tPurpose and application of Part\n25C\tTransfer of transferring company's estate assets and liabilities\n25D\tCertificates evidencing operation of Part\n25E\tRegistration or record of transfer\n25F\tExemption from State taxes\n25H\tRelationship of Part with other laws\nPart 4—Miscellaneous\n26\tFalse or misleading statements\n28\tEvidentiary provision\n29\tAct not to affect other Acts or remedies\n31\tRegulations\nLegislative history\n\nThe Parliament of South Australia enacts as follows:\nPart 1—Preliminary\n1—Short title\nThis Act may be cited as the Trustee Companies Act 1988.\n3—Interpretation\n\t(1)\tIn this Act, unless the contrary intention appears—\nappointment includes nomination;\nCommonwealth Act means the Corporations Act 2001 of the Commonwealth;\nthe Court means the Supreme Court of South Australia;\nestate, in relation to a trustee company, includes any real or personal property committed to the administration or management of the trustee company whether as executor, administrator or in any other capacity authorised by this Act, but does not include money deposited with the trustee company for the purpose only of investment in a common fund;\nletters of administration means letters of administration of the estate of a deceased person, with or without the will annexed;\nofficer, of a trustee company, means a director or manager of the company or some other officer or employee of the company designated by the board of directors as an officer for the purposes of this Act;\nthe Registrar means the Registrar of Probates and includes an acting or deputy Registrar of Probates;\ntrustee includes a bare trustee or custodian trustee;\ntrustee company means a licensed trustee company within the meaning of Chapter 5D of the Commonwealth Act;\ntrustee investment means an investment in which a trustee is authorised by law to invest trust funds;\nwill includes codicil.\n\t(2)\tWhere an unincorporated body is named in an instrument establishing a trust, the persons for the time being comprising the body will be taken to have been individually named in the instrument.\n\t(3)\tSubsection (2) applies for the purposes of this Act but not for the purposes of interpreting the trust instrument.\nPart 2—Powers of trustee companies\n4—Trustee company may act as executor or administrator\n\t(1)\tA trustee company has the same powers as a natural person to act as the executor of the will, or the administrator of the estate, of a deceased person.\n\t(2)\tA trustee company may apply for and obtain—\n\t(a)\tprobate of the will of a deceased person; or\n\t(b)\tletters of administration of the estate of a deceased person,\nin the same circumstances as a natural person.\n\t(3)\tA trustee company may, with the approval of the Court or the Registrar and the consent of the person entitled to probate of the will or a grant of administration of the estate of a deceased person, apply for and obtain—\n\t(a)\tprobate of the will of the deceased person; or\n\t(b)\tletters of administration of the estate of the deceased person,\n(as the case requires).\n\t(4)\tA trustee company may, with the approval of the Court, act on behalf, or in the place, of an executor of the will, or an administrator of the estate, of a deceased person, either on a permanent or a temporary basis.\n5—Trustee company may act as trustee, agent, attorney, manager or receiver\nA trustee company has the same powers as a natural person to act as trustee, agent, attorney, manager or receiver.\n6—Trustee company may act for children or persons who are unable to manage their affairs\nA trustee company may act—\n\t(a)\tas the guardian of a child; or\n\t(b)\tas the administrator, committee, guardian or manager of the estate of a person who is unable to manage his or her own affairs.\n7—Officers may represent or make affidavits etc for company\n\t(1)\tWhere a trustee company makes an application for probate or letters of administration or any other application under this Act or acts as executor, administrator or in any other capacity authorised by this Act, the company may be represented in any court or elsewhere by an officer of the company.\n\t(2)\tWhere in any circumstances referred to in subsection (1) an affidavit, declaration or statement is required to be made by a trustee company whether on oath or otherwise, the affidavit, declaration or statement may be made on behalf of the company by an officer of the company.\n8—Trustee company may act jointly\n\t(1)\tA trustee company may be appointed to act as executor, administrator, or in any other capacity authorised by this Act, either alone or jointly with another person.\n\t(2)\tWhere a trustee company is appointed to act jointly with another person—\n\t(a)\tany property held or controlled by the company and that other person jointly may, with the consent in writing of the other person, be dealt with by the company alone; and\n\t(b)\tin that event the other person is exonerated from liability that might (but for this paragraph) have arisen from the company's subsequent dealing with the property.\n13—Investment of trust funds\nSubject to the terms of any relevant instrument of trust, a trustee company may invest any money held in trust by the company—\n\t(a)\tin a manner authorised by the instrument of trust; or\n\t(b)\tin a trustee investment; or\n\t(c)\tin a common fund (within the meaning of the Commonwealth Act) established by the company.\n14—Money from several estates may be invested as one fund\n\t(1)\tSubject to section 13, a trustee company may invest money from more than one estate that it holds as trustee or in any other capacity authorised by this Act as one fund in one or more investments.\n\t(2)\tWhere money from more than one estate is invested under subsection (1), the company must—\n\t(a)\tkeep an account showing the current amount for the time being at credit in respect of each estate; and\n\t(b)\tafter deduction of any charges—\n\t(i)\tdivide any income arising from investment of the money between the estates in proportion to the amounts invested and the period of each investment; and\n\t(ii)\tdivide any profit or loss of a capital nature arising from investment of the money between the estates in proportion to the amounts invested.\n16—Power of trustee company acting in representative capacity to hold its own shares etc\nA trustee company may in the administration or management of an estate hold shares or other securities issued by the company itself or a related body corporate within the meaning of the Commonwealth Act and forming part of that estate, but it must not exercise any power that it has in that capacity to purchase any such shares or securities unless—\n\t(a)\tit is authorised to do so by the terms on which the power is conferred; or\n\t(b)\tthe shares or other securities form part of a new issue offered to existing holders of shares or securities in proportion to their existing holdings.\nPart 3—Duties and liabilities of trustee companies\n23—Directors and managers responsible to the Court\nWhere a trustee company is appointed or acts as executor, administrator, or in any other capacity under this Act, the manager and directors of the company are individually and collectively responsible to the Court in the same way and to the same extent as if they had been personally appointed to act in that capacity.\n24—Trustee company may be removed from office\nA trustee company appointed or acting as executor, administrator, or in any other capacity under this Act is subject to the same control by the Court as a natural person acting in that capacity and is similarly liable to removal by the Court.\n25—Appointment by Court of administrator of trustee company's affairs\n\t(1)\tWhere it appears to the Court—\n\t(a)\tthat proceedings to wind up a trustee company have commenced; or\n\t(b)\tthat a trustee company is not in a position to carry out its fiduciary duties; or\n\t(c)\tthat a trustee company has committed serious breaches of its fiduciary duties such that the power conferred by this section should be exercised,\nthe Court may, on application by the Minister, appoint an administrator to administer the company's affairs insofar as they involve the performance of fiduciary duties.\n\t(2)\tThe Court may determine—\n\t(a)\tthe powers and duties of an administrator appointed under this section; and\n\t(b)\tthe terms and conditions on which the administrator is appointed.\n\t(3)\tThe Court may at any time terminate an appointment made under this section.\nPart 3A—Transfer of estate assets and liabilities\n25A—Interpretation\n\t(1)\tIn this Part—\nASIC means the Australian Securities and Investments Commission;\nauthorised ASIC officer means a person authorised under section 25D to issue certificates under that section;\ncertificate of transfer—see section 25B(2);\nreceiving company—see section 25B(2);\nState tax means—\n\t(a)\tstamp duty; or\n\t(b)\tany other tax, duty or impost that would, apart from an exemption under this Part, be payable in respect of the transaction under the law of the State;\ntransferring company—see section 25B(2).\n\t(2)\tIf an expression is defined in the Commonwealth Act and is also used in this Part, the expression as used in this Part has, unless the contrary intention appears, the same meaning as in that Act.\n25B—Purpose and application of Part\n\t(1)\tThe purpose of this Part is to facilitate transfers of estate assets and liabilities under Part 5D.6 of the Commonwealth Act.\n\t(2)\tThis Part applies if ASIC—\n\t(a)\tmakes a determination under section 601WBA of the Commonwealth Act that there is to be a transfer of estate assets and liabilities from a specified trustee company (the transferring company) to another trustee company (the receiving company); and\n\t(b)\tissues a certificate of transfer under section 601WBG of the Commonwealth Act stating that the transfer is to take effect.\nNote—\nSection 601WBA of the Commonwealth Act enables ASIC to make a transfer determination if—\n\t(a)\tASIC cancels the licence of the transferring company (in which case the determination is a compulsory transfer determination); or\n\t(b)\tthe transferring company applies to ASIC for a transfer determination (in which case the determination is a voluntary transfer determination).\n25C—Transfer of transferring company's estate assets and liabilities\n\t(1)\tFrom the time a certificate of transfer comes into force in respect of the transfer of estate assets and liabilities from a transferring company to a receiving company, the receiving company is to be taken to be the successor in law of the transferring company, to the extent of the transfer.\n\t(2)\tIf the transfer of estate assets and liabilities is a total transfer, all the assets and liabilities of the transferring company become respectively the assets and liabilities of the receiving company without any transfer, conveyance or assignment.\n\t(3)\tIf the transfer of estate assets and liabilities is a partial transfer, all the assets and liabilities of the transferring company that are included in the list (referred to in section 601WBG(2)(c) of the Commonwealth Act) included in, or attached to, the certificate of transfer become respectively assets and liabilities of the receiving company without any transfer, conveyance or assignment.\n\t(4)\tTo the extent of the transfer of estate assets and liabilities, the duties, obligations, immunities, rights and privileges applying to the transferring company apply to the receiving company and, in particular—\n\t(a)\tan appointment of the transferring company in a will, order of a court or instrument of any kind is to be taken to be an appointment of the receiving company (whether the appointment was made before, on or after the commencement of this Part and whether the appointment is in effect on that date, takes effect after that date or has taken effect previously but some further act or thing is necessary to perfect the appointment or undertaking of the office); and\n\t(b)\tin each case where the transferring company is acting as a trustee, the receiving company is appointed as the trustee in place of the transferring company and the receiving company—\n\t(i)\tis entitled to exercise any rights, powers, capacities or authorities in respect of or arising from each such appointment; and\n\t(ii)\tto the extent provided in this Act, is obliged to discharge the liabilities and obligations of the transferring company in respect of and arising from each such appointment.\n\t(5)\tIf the certificate of transfer includes provisions of a kind referred to in section 601WBG(3) of the Commonwealth Act—\n\t(a)\tspecifying that particular things are to happen or are taken to be the case, those things are taken to happen, or to be the case, in accordance with those provisions; or\n\t(b)\tspecifying a mechanism for determining things that are to happen or are taken to be the case, things determined in accordance with that mechanism are taken to happen, or to be the case, as determined in accordance with that mechanism.\n25D—Certificates evidencing operation of Part\n\t(1)\tAn authorised ASIC officer may, by a certificate in writing signed by the officer, certify that a specified asset or liability of the transferring company has become an asset or liability of the receiving company under this Part.\n\t(2)\tFor all purposes and in all proceedings, a certificate purporting to be issued under subsection (1) is evidence of the matters certified.\n\t(3)\tASIC is empowered to authorise, in writing, a person who is a member of ASIC, or of its staff, to issue certificates under this section.\n25E—Registration or record of transfer\nThe Registrar‑General or any other person or authority required or authorised under a law of the State to register or record transactions affecting assets or liabilities, or documents relating to such transactions, must, on application under this section accompanied by a certificate issued under section 25D, register or record in an appropriate manner the transfer or transfers to which the certificate relates.\n25F—Exemption from State taxes\nNo State taxes are chargeable under any Act in respect of a transfer of estate assets or liabilities facilitated under this Part.\n25H—Relationship of Part with other laws\n\t(1)\tThis Part has effect despite anything in a contract, deed, undertaking, agreement, will or other instrument.\n\t(2)\tNothing done by or under this Part—\n\t(a)\tplaces a receiving company, a transferring company or another person in breach of contract or confidence or otherwise makes any of them guilty of a civil wrong; or\n\t(b)\tplaces a receiving company, a transferring company or another person in breach of—\n\t(i)\ta law of the State; or\n\t(ii)\ta contractual provision prohibiting, restricting or regulating the assignment or transfer of an asset or liability or the disclosure of information; or\n\t(c)\treleases a surety, wholly or partly, from all or any of the surety's obligations.\n\t(3)\tWithout limiting subsection (1), if, apart from this section, the advice or consent of a person would be necessary in a particular respect, the advice is taken to have been obtained or the consent is taken to have been given.\nPart 4—Miscellaneous\n26—False or misleading statements\nA trustee company must not make or include in any document required by or for the purposes of this Act any statement that is false or misleading in a material particular.\nMaximum penalty: $20 000.\n28—Evidentiary provision\n\t(1)\tA certificate under the seal of a trustee company certifying that a person named in the certificate is an officer of the company is to be accepted in any legal proceedings, in the absence of proof to the contrary, as proof that the person is an officer of the company.\n\t(2)\tA certificate under seal of the company—\n\t(a)\tcertifying that the company is authorised to act as executor of the will, or administrator of the estate, of a deceased person, or in any other capacity authorised by this Act; and\n\t(b)\tincluding a photographic copy of the probate or letters of administration with or without the will annexed, or other order or document of appointment,\nis, notwithstanding any other law, sufficient evidence that the company is authorised to act as executor of the will, or administrator of the estate, of the deceased person, or in that other capacity.\n\t(3)\tA certificate under subsection (2) is equivalent, for registration purposes, to the probate, letters of administration, trust instrument or other order or document of appointment.\n29—Act not to affect other Acts or remedies\n\t(1)\tThe provisions of this Act are in addition to, and do not derogate from, the provisions of any other Act.\n\t(2)\tNothing in this Act derogates from any right of action or other right or remedy that a person has apart from this Act.\n31—Regulations\n\t(1)\tThe Governor may make such regulations as are contemplated by this Act or as are necessary or expedient for the purposes of this Act.\n\t(2)\tWithout limiting the generality of subsection (1), the regulations may—\n\t(a)\tmake provisions of a saving or transitional nature—\n\t(i)\tconsequent on the amendment of this Act by a relevant Act; or\n\t(ii)\trelevant to the interaction between this Act and a relevant Commonwealth Act; and\n\t(b)\tprescribe a fine, not exceeding $1 250, for breach of or non‑compliance with a provision of the regulations.\n\t(3)\tA provision of a regulation made under subsection (2)(a) may, if the regulation so provides, take effect from the commencement of a relevant Act or relevant Commonwealth Act or from a later day.\n\t(4)\tIn this section—\nrelevant Act means the Trustee Companies (Commonwealth Regulation) Amendment Act 2010;\nrelevant Commonwealth Act means—\n\t(a)\tthe Corporations Legislation Amendment (Financial Services Modernisation) Act 2009 of the Commonwealth; or\n\t(b)\tany other Act of the Commonwealth relevant to the interaction between this Act and the Corporations Act 2001 of the Commonwealth.\nLegislative history\nNotes\n\t•\tPlease note—References in the legislation to other legislation or instruments or to titles of bodies or offices are not automatically updated as part of the program for the revision and publication of legislation and therefore may be obsolete.\n\t•\tEarlier versions of this Act (historical versions) are listed at the end of the legislative history.\n\t•\tFor further information relating to the Act and subordinate legislation made under the Act see the Index of South Australian Statutes or www.legislation.sa.gov.au.\nLegislation repealed by principal Act\nThe Trustee Companies Act 1988 repealed the following:\nANZ Executors & Trustee Company (South Australia) Limited Act 1985\nBagot's Executor Company Act 1910\nElder's Executor Company's Act 1910\nExecutors Company's Act 1885\nFarmers' Co-operative Executors Act 1919\nPrincipal Act and amendments\nNew entries appear in bold.\nYear\nNo\nTitle\nAssent\nCommencement\n1988\n102\nTrustee Companies Act 1988\n15.12.1988\n20.4.1989 (Gazette 20.4.1989 p1080)\n1990\n73\nTrustee Companies Act Amendment Act 1990\n20.12.1990\n31.10.1991 (Gazette 31.10.1991 p1198)\n1993\n92\nStatutes Amendment (Attorney-General's Portfolio No. 2) Act 1993\n4.11.1993\n4.11.1993\n1996\n78\nANZ Executors & Trustee Company (South Australia) Limited (Transfer of Business) Act 1996\n28.11.1996\n1.1.1997 (Gazette 19.12.1996 p1918)\n1999\n56\nStatutes Amendment (Trusts) Act 1999\n12.8.1999\nPt 3 (ss 8—14) & Sch—18.10.1999 (Gazette 30.9.1999 p1341)\n2000\n23\nStatutes Amendment (Public Trustee and Trustee Companies—GST) Act 2000\n8.6.2000\n8.6.2000\n2001\n23\nStatutes Amendment (Corporations) Act 2001\n14.6.2001\nPt 32 (ss 119—121)—15.7.2001 being the day on which the Corporations Act 2001 of the Commonwealth came into operation: Commonwealth of Australia Gazette No. S 285, 13 July 2001 (Gazette 21.6.2001 p2270)\n2002\n33\nStatutes Amendment (Attorney-General's Portfolio) Act 2002\n28.11.2002\nPt 12 (s 20)—3.3.2003 (Gazette 27.2.2003 p807)\n2005\n36\nTrustee Companies (Elders Trustees Limited) Amendment Act 2005\n14.7.2005\n15.8.2005 (Gazette 11.8.2005 p3012)\n2006\n44\nStatutes Amendment (Justice Portfolio) Act 2006\n14.12.2006\nPt 31 (s 67)—18.1.2007 (Gazette 18.1.2007 p234)\n2010\n12\nTrustee Companies (Commonwealth Regulation) Amendment Act 2010\n5.8.2010\nPt 2 (ss 4—17) & Sch 1 (cll 8 & 9)—20.12.2010 (Gazette 9.12.2010 p5580)\n2012\n45\nTrustee Companies (Transfers) Amendment Act 2012\n22.11.2012\n22.11.2012\nProvisions amended\nNew entries appear in bold.\nEntries that relate to provisions that have been deleted appear in italics.\nProvision\nHow varied\nCommencement\nLong title\namended by 12/2010 s 4(1), (2)\n20.12.2010\nPt 1\n\n\ns 2\nomitted under Legislation Revision and Publication Act 2002\n15.8.2005\ns 3\n\n\ns 3(1)\ns 3 redesignated as s 3(1) by 56/1999 s 8(b)\n18.10.1999\nappointment\ninserted by 12/2010 s 5(1)\n20.12.2010\nbusiness day\ndeleted by 12/2010 s 5(1)\n20.12.2010\ncommon fund\ndeleted by 12/2010 s 5(1)\n20.12.2010\nCommonwealth Act\ninserted by 12/2010 s 5(1)\n20.12.2010\ninvestor\ndeleted by 12/2010 s 5(2)\n20.12.2010\nperson who has a proper interest or person with a proper interest\ninserted by 56/1999 s 8(a)\n18.10.1999\n\ndeleted by 12/2010 s 5(3)\n20.12.2010\ntrustee company\nsubstituted by 12/2010 s 5(4)\n20.12.2010\ns 3(2) and (3)\ninserted by 56/1999 s 8(b)\n18.10.1999\nPt 2\n\n\ns 9\ndeleted by 12/2010 s 6\n20.12.2010\ns 10 before deletion by 12/2010\n\n\ns 10(1)\namended by 56/1999 s 9(a)\n18.10.1999\ns 10(2)\namended by 56/1999 s 9(b)\n18.10.1999\ns 10(2a)\ninserted by 56/1999 s 9(c)\n18.10.1999\ns 10(4)—(6)\ninserted by 56/1999 s 9(d)\n18.10.1999\nss 10—12\ndeleted by 12/2010 s 6\n20.12.2010\ns 13\namended by 12/2010 s 7\n20.12.2010\ns 15 before deletion by 12/2010\n\n\ns 15(2)\nsubstituted by 56/1999 s 10(a)\n18.10.1999\ns 15(3a)\ninserted by 56/1999 s 10(b)\n18.10.1999\ns 15\ndeleted by 12/2010 s 8\n20.12.2010\nss 15A and 15B\ninserted by 56/1999 s 11\n18.10.1999\n\ndeleted by 12/2010 s 8\n20.12.2010\ns 16\namended by 23/2001 s 119\n15.7.2001\n\namended by 12/2010 s 9\n20.12.2010\ns 16A\ninserted by 23/2000 s 4\n8.6.2000\n\ndeleted by 12/2010 s 10\n20.12.2010\nPt 3\n\n\ns 17 before deletion by 12/2010\n\n\ns 17(1)\namended by 56/1999 s 14 (Sch)\n18.10.1999\ns 17\ndeleted by 12/2010 s 11\n20.12.2010\ns 18 before deletion by 12/2010 s 11\n\n\ns 18(2) and (4)\namended by 56/1999 s 14 (Sch)\n18.10.1999\ns 18\ndeleted by 12/2010 s 11\n20.12.2010\ns 19 before deletion by 12/2010\n\n\ns 19(1)\namended by 56/1999 s 14 (Sch)\n18.10.1999\ns 19(2)\namended by 56/1999 s 14 (Sch)\n18.10.1999\n\namended by 23/2001 s 120(a)\n15.7.2001\ns 19(2a)\ninserted by 56/1999 s 12(a)\n18.10.1999\ns 19(3)\namended by 56/1999 s 12(b)\n18.10.1999\ns 19(4)\n\n\nfinancial year\namended by 23/2001 s 120(b)\n15.7.2001\nregistered company auditor\nsubstituted by 23/2001 s 120(c)\n15.7.2001\ns 19\ndeleted by 12/2010 s 11\n20.12.2010\ns 20 before deletion by 12/2010 s 11\n\n\ns 20(1)\namended by 56/1999 s 14 (Sch)\n18.10.1999\ns 20(3)\namended by 23/2001 s 121\n15.7.2001\ns 20\ndeleted by 12/2010 s 11\n20.12.2010\ns 21 before deletion by 12/2010\n\n\ns 21(1)\namended by 56/1999 s 14 (Sch)\n18.10.1999\nss 21 and 22\ndeleted by 12/2010 s 11\n20.12.2010\nPt 3A\ninserted by 12/2010 s 12\n20.12.2010\nDiv 1 heading\ndeleted by 45/2012 s 3\n22.11.2012\ns 25A\n\n\ns 25A(1)\n\n\ncertificate of transfer\namended by 45/2012 s 4(1)\n22.11.2012\nreceiving company\namended by 45/2012 s 4(2)\n22.11.2012\ntransferring company\namended by 45/2012 s 4(3)\n22.11.2012\nDiv 2 heading\ndeleted by 45/2012 s 5\n22.11.2012\ns 25B\n\n\ns 25B(1)\namended by 45/2012 s 6(1), (2)\n22.11.2012\ns 25B(2)\nsubstituted by 45/2012 s 6(3)\n22.11.2012\ns 25C\n\n\ns 25C(4)\namended by 45/2012 s 7\n22.11.2012\ns 25D\n\n\ns 25D(1)\namended by 45/2012 s 8\n22.11.2012\ns 25F\namended by 45/2012 s 9(1), (2)\n22.11.2012\nDiv 3\ndeleted by 45/2012 s 10\n22.11.2012\nDiv 4 heading\ndeleted by 45/2012 s 11\n22.11.2012\nPt 4\n\n\ns 26\namended by 56/1999 s 14( Sch)\n18.10.1999\ns 27\ndeleted by 12/2010 s 13\n20.12.2010\ns 30\ndeleted by 12/2010 s 14\n20.12.2010\ns 31\n\n\ns 31(2)\namended by 56/1999 s 14 (Sch)\n18.10.1999\n\nsubstituted by 12/2010 s 15\n20.12.2010\ns 31(3) and (4)\ninserted by 12/2010 s 15\n20.12.2010\nSch 1\namended by 73/1990 s 3\n31.10.1991\n\namended by 92/1993 s 5\n4.11.1993\n\namended by 78/1996 Sch\n1.1.1997\n\namended by 56/1999 s 13\n18.10.1999\n\namended by 33/2002 s 20\n3.3.2003\n\namended by 36/2005 s 4\n15.8.2005\n\namended by 44/2006 s 67(1)—(4)\n18.1.2007\n\ndeleted by 12/2010 s 16\n20.12.2010\nSch 2\ndeleted by 12/2010 s 17\n20.12.2010\nTransitional etc provisions associated with Act or amendments\nTrustee Companies (Commonwealth Regulation) Amendment Act 2010, Sch 1 Pt 5\n8—Interpretation\nIn this Part—\nappointment includes nomination;\nCommonwealth Act means the Corporations Act 2001 of the Commonwealth;\nprincipal Act means the Trustee Companies Act 1988;\nSchedule 1 trustee company means a company listed in Schedule 1 of the principal Act immediately before the repeal of that Schedule by Part 2 of this Act.\n9—Transitional provision\n\t(1)\tThe repeal of Schedule 1 of the principal Act by Part 2 of this Act does not affect the appointment of a Schedule 1 trustee company made before the repeal as—\n\t(a)\tthe executor of a will, or the administrator of an estate of a deceased person; or\n\t(b)\ta trustee, agent, attorney, manager or receiver; or\n\t(c)\tthe guardian of a child; or\n\t(d)\tthe administrator, committee, guardian or manager of the estate of a person who is unable to manage his or her own affairs.\n\t(2)\tExcept to the extent of any inconsistency with the Commonwealth Act—\n\t(a)\tany duties, obligations, immunities, rights and privileges of a Schedule 1 trustee company arising before the repeal of that Schedule are not affected by the repeal; and\n\t(b)\tthe assets and liabilities of a Schedule 1 trustee company are not affected by the repeal; and\n\t(c)\tany action taken or notice given by a Schedule 1 trustee company before the repeal of that Schedule or the amendment of the principal Act by this Act is not affected by the repeal or amendment; and\n\t(d)\tthe principal Act (as amended by this Act) continues to apply to a Schedule 1 trustee company.\n\t(3)\tProceedings relating to a Schedule 1 trustee company that have been commenced but not determined before the repeal of that Schedule are not affected by the repeal.\nHistorical versions\nReprint No 1—15.1.1992\n\nReprint No 2—4.11.1993\n\nReprint No 3—1.1.1997\n\nReprint No 4—18.10.1999\n\nReprint No 5—8.6.2000\n\nReprint No 6—15.7.2001\n\nReprint No 7—3.3.2003\n\n15.8.2005\n\n18.1.2007\n\n20.12.2010\n\n","sortOrder":0}],"analysis":{"summary":{"complexity_score":1,"scope_assessment":{"changed":false,"description":"Scope assessment cannot be performed. No legislative content was returned — only a website error page. Any assessment of whether the Act's scope changed from its original intent would be speculative without access to the text."},"complexity_factors":["No legislative text was retrievable — the source URL returned a 404 Page Not Found error","Unable to assess structural complexity, cross-references, defined terms, or regulatory mechanisms","Score of 1 reflects absence of content, not simplicity of the underlying law"],"plain_english_summary":"**No legislation content could be retrieved.**\n\nThe link provided for the *Trustee Companies Act 1988* (South Australia) returned a **'Page Not Found'** error from the SA Legislation website. This appears to be caused by a broken or outdated hyperlink following a website update on 24 March 2026.\n\n**What this means for you:** No analysis of the actual law can be provided because the legislative text was not accessible. If you need to review this Act, try:\n- Visiting [www.legislation.sa.gov.au](https://www.legislation.sa.gov.au) and searching directly for 'Trustee Companies Act 1988'\n- Emailing the Office of Parliamentary Counsel at OPCWeb@sa.gov.au to report the broken link\n- Checking the [AustLII database](https://www.austlii.edu.au) as an alternative source\n\n**General context:** The *Trustee Companies Act 1988* (SA) historically regulated companies that act as professional trustees — organisations that manage estates (assets left behind when someone dies), trusts, and financial affairs on behalf of individuals. It set out licensing requirements, duties, and oversight for these businesses. However, no detailed or current analysis can be confirmed without access to the actual text."},"flash_summary":{"complexity_score":6,"scope_assessment":{"changed":true,"description":"The Act’s scope has shifted from a largely state‑centric regulatory framework for identified trustee companies to a structure integrated with Commonwealth regulation and transfer processes. Part 3A (ss 25A–25H) was added to implement transfers of estate assets and liabilities tied to ASIC determinations under the Corporations Act (s 25B(1)–(2)), and the Act now treats receiving companies as successors in law for transferred estates (s 25C). The Act also provides for ASIC‑issued certificates to be conclusive evidence (s 25D) and exempts those transfers from State taxes (s 25F). The legislative history shows multiple amendments and repeals (noted in the Act’s legislative history section), notably the insertion of Commonwealth‑linked provisions and the repeal of earlier state‑specific schedules, which broadened the Act’s interaction with national corporate regulation and changed how trustee business moves between licensees."},"complexity_factors":["Interplay with Commonwealth Corporations Act (Part 3A relies on ASIC determinations and Corporations Act definitions) (ss 25A–25B).","Multiple decision‑makers and overlapping jurisdictions (Court, Registrar of Probates, ASIC, Registrar‑General, Governor for regulations) (ss 4(3), 23–25, 25B–25E, 31).","Automatic succession rules for transfers of assets/liabilities without conveyance and statutory certificates treated as evidentiary proof (ss 25C(2)–(3), 25D(1)–(2)).","Statutory exceptions to ordinary contract or registration mechanics (s 25H(1) and s 25E).","Detailed account‑keeping and allocation rules for pooled investments (s 14(2)) increasing operational compliance complexity.","Personal liability for corporate officers to the Court for fiduciary acts (s 23) complicating corporate governance.","Varied amendment history and deleted provisions noted in legislative history, indicating shifting scope and cross-references to repealed/modified material."],"plain_english_summary":"### What this law does, who it affects, and why it matters\n\nThis Act sets out what licensed trustee companies can and cannot do in South Australia, how they must manage and record trust property, and the legal rules that apply when one trustee company’s estate business moves to another. The main practical effects are:\n\n- It gives trustee companies the same legal powers as a natural person to act as executor, administrator, trustee, agent, attorney, manager, receiver or guardian (see ss 4–7). That means a licensed trustee company can apply for probate, be appointed in wills, or act for children or people unable to manage their affairs (s 4; s 6).  \n- It governs how trustee companies invest and pool trust money: investments must follow the trust instrument or be trustee investments, and funds from multiple estates may be invested together provided accounts are kept and income/profits/losses are allocated proportionately (ss 13–14).  \n- It limits certain self-dealing: a trustee company may hold shares of its own company as part of an estate but may not buy its own issued shares in administration unless expressly authorised or offered pro rata as a new issue (s 16).  \n- It makes company officers (directors and managers) directly accountable to the Supreme Court for the company’s fiduciary acts, and gives the Court the power to remove a trustee company from office or appoint an administrator for its fiduciary affairs in prescribed circumstances (ss 23–25).  \n- It creates a mechanism, tied to Commonwealth Corporations Act processes, for transferring estate assets and liabilities from one trustee company to another by ASIC determination and certificate, with automatic succession of assets/liabilities and an instruction to state registries to record the transfer (Part 3A: ss 25A–25H). Transfers facilitated under this Part are exempt from State taxes (s 25F).  \n- It imposes compliance duties (no false or misleading statements in documents required under the Act; penalty specified) and creates evidentiary rules allowing company certificates to stand as proof in court and for registration (ss 26, 28).  \n- The Governor may make regulations to implement the Act and deal with transitional matters connected to Commonwealth law (s 31).\n\nPurpose claim and the statutory mechanism\n\nThe Act explicitly states a purpose in Part 3A: to facilitate transfers of estate assets and liabilities under the Commonwealth Corporations Act (s 25B(1)). Mechanically, that objective is implemented by:\n- giving ASIC the power to make a transfer determination and issue a certificate (s 25B(2));\n- treating the receiving company as successor in law for the listed assets and liabilities from the moment the certificate takes effect (s 25C(1)–(4)); and\n- requiring state registries to register transfers on application accompanied by the ASIC certificate (s 25E). The law also removes State tax charges for such transfers (s 25F) and makes the ASIC certificate admissible evidence (s 25D(1)–(2)).\n\nTesting the stated purpose against trade-offs, incentives and costs\n\n- Who pays: trustee companies bear most direct costs and risks. They must keep detailed accounts when pooling funds (s 14(2)(a)), may be personally liable through their directors and managers to the Court (s 23), and face a monetary penalty for false or misleading documents under the Act (s 26). State revenue is reduced for transfers under Part 3A because those transfers are exempt from State taxes (s 25F).  \n\n- Who decides: several decision-makers have formal roles: the Supreme Court (removal, approval to act in certain roles, appointment/termination of administrators) (ss 4(3)–(4), 23–25); the Registrar of Probates (consent/approvals and registration functions under other parts) (s 3 definition; s 4(3)); ASIC and authorised ASIC officers for transfers and certificates (Part 3A: ss 25B–25D); and the Governor for regulations (s 31). This mixes judicial oversight with administrative decisions by Commonwealth regulator officers.  \n\n- Incentives and substitution effects: the tax exemption for transfers (s 25F) and the automatic succession of obligations and rights to the receiving company (s 25C) create an incentive to use the statutory transfer route rather than piecemeal asset conveyancing. That can reduce transaction costs for transferring companies and may encourage voluntary transfers or streamline compulsory transfers on licence cancellation (s 25B note). However, receiving companies also inherit liabilities (s 25C(2)–(4)), which may change pricing or acceptance decisions when companies consider taking on transferred estate business.  \n\n- Compliance burden and bureaucratic discretion: trustee companies must follow record-keeping and accounting rules when pooling funds (s 14(2)), must ensure documents required by the Act are accurate (s 26), and will interact with multiple officials when seeking approvals or when transfers occur (Registrar, Court, ASIC, Registrar‑General) (ss 4(3), 7, 25B–25E). ASIC-issued certificates are given evidentiary weight (s 25D(2)), which concentrates practical discretion in the Commonwealth regulator and authorised officers.  \n\n- Effects on private contracting and third parties: the Act makes transfers effective despite contrary contractual provisions (s 25H(1)) and treats necessary consents as taken to have been given where the Part would otherwise require them (s 25H(3)), which limits the ability of private parties to block a statutory transfer. At the same time, the Act expressly states that it does not place companies or persons in breach of contract or law by effecting the transfer (s 25H(2)), which narrows but does not entirely eliminate private rights to contest specific consequences.  \n\n- Implementation risk and dispute resolution: Part 3A relies on ASIC determinations and certificates (ss 25B–25D) and on registries to record changes (s 25E). Certificates are prima facie evidence (s 25D(2)) and company seals/certificates are accepted in proceedings absent contrary proof (s 28(1)–(2)), which reduces procedural friction but can make challenges focused on the correctness of certificates rather than re-litigating transfer details. Judicial powers in ss 23–25 preserve avenues to address misconduct or incapacity of trustee companies.\n\nConcrete behavioural changes the Act authorises or compels\n\n- Trustee companies will expand the roles they can legally accept (executorships, administration, guardianship) under the same terms as natural persons (ss 4–7).  \n- Trustee companies may pool estate monies into common investments but must maintain per‑estate accounting and apportion income and capital gains/losses (ss 13–14).  \n- Where ASIC makes a transfer determination and issues a certificate, receiving companies automatically take title to listed assets and liabilities without separate transfers, and registry officials must record the transfer on production of the certificate (ss 25B–25E).  \n- Directors and managers can be held personally responsible to the Court for fiduciary performance of the company (s 23), increasing managerial accountability and affecting internal governance choices.\n\nKey statutory risks and checks\n\n- Personal accountability to the Court for managers and directors (s 23) and the Court’s power to remove trustee companies or appoint administrators (ss 24–25) are judicial checks.  \n- ASIC’s certificate regime and statutory tax exemption (ss 25D, 25F) centralise transfer authority with the Commonwealth regulator and reduce state-level transaction friction while shifting some practical discretion to ASIC and to state registries charged with recording the transfer (s 25E).  \n\nPractical takeaways (who pays, who decides, what changes)\n\n- Trustee companies pay for compliance and bear legal/financial risk: they must keep records (s 14), face removal and personal liability for officers (ss 23–25), and must avoid false statements (s 26).  \n- The Supreme Court, the Registrar of Probates, ASIC (and authorised officers), and the Registrar‑General have decisive roles (ss 4(3), 23–25, 25B–25E, 28, 31).  \n- The Act makes it administratively simpler to transfer entire portfolios of estate assets and liabilities between licensed trustee companies (Part 3A) and aligns state rules with specified Commonwealth Corporations Act processes (s 25B(1))."},"kimi_summary":{"content_quality":"ok","complexity_score":5,"scope_assessment":{"changed":true,"description":"The Act has significantly narrowed in scope compared to its original intent. The legislative history reveals that the original 1988 Act included detailed licensing, regulation, and operational requirements for trustee companies (including Schedules listing specific companies and provisions for common funds). The 2010 amendments removed most of this regulatory content, transferring licensing and prudential supervision to the Commonwealth Corporations Act 2001. What remains is essentially a 'skeleton' Act dealing with: (1) powers of trustee companies, (2) Court oversight and fiduciary duties, and (3) machinery provisions for transferring estate assets between companies. The Act transformed from a comprehensive regulatory scheme into a supplementary State law that operates 'despite' other laws but largely defers to federal regulation."},"complexity_factors":["Moderate cross-referencing with the Commonwealth Corporations Act 2001 (Chapter 5D), requiring readers to understand both State and federal frameworks","Part 3A contains nested conditional logic for asset transfers (total vs partial transfers, certificates of transfer, and ASIC determinations)","15 defined terms in section 3(1), with additional definitions in Part 3A (section 25A)","Multiple capacity contexts — the Act applies differently depending on whether the company acts as executor, trustee, guardian, etc.","Interaction between State and federal regulators (ASIC, Supreme Court of SA, Registrar of Probates)","Transitional provisions in the legislative history show significant amendments (particularly 2010 and 2012) that removed entire Parts and Schedules, indicating the Act has been substantially restructured over time","Evidentiary provisions (section 28) create legal presumptions that modify standard rules of evidence","Section 25H contains broad override provisions ('despite anything in a contract, deed...') that displace normal contractual and property law principles"],"plain_english_summary":"**What this law does:**\n\nThis Act sets out the rules for **trustee companies** in South Australia — these are licensed companies (regulated by Commonwealth law) that manage money, property, and legal affairs on behalf of other people. Think of them as professional \"helpers\" who handle estates, trusts, and financial matters when individuals can't or don't want to do it themselves.\n\n**Key things the Act covers:**\n\n*   **What trustee companies can do:**\n    *   Act as **executors** (the person who carries out your will after you die) or **administrators** (managing estates when there's no will)\n    *   Serve as **trustees** (managing assets held in trust for someone else's benefit), agents, attorneys, managers, or receivers\n    *   Act as guardians for children or for adults who can't manage their own affairs\n    *   Invest trust money in approved investments or pooled funds\n    *   Hold shares in their own company when managing an estate (with restrictions)\n\n*   **How they operate:**\n    *   Officers of the company can sign legal documents and make sworn statements on the company's behalf\n    *   A trustee company can work alone or alongside another person (like a family member)\n    *   Money from different estates can be pooled together for investment, but must be tracked separately and profits/losses shared fairly\n\n*   **Oversight and accountability:**\n    *   The company's directors and managers are personally responsible to the Supreme Court for how the company performs its duties\n    *   The Court can remove a trustee company from its role if it misbehaves or fails in its duties\n    *   If a trustee company is being wound up or has seriously breached its duties, the Court can appoint an **administrator** to take over its affairs\n\n*   **Transferring business between companies (Part 3A):**\n    *   This is a special process allowing one trustee company to transfer all its estate assets and liabilities to another company (useful when a company loses its licence or wants to sell its business)\n    *   The transfer happens automatically by law — no need to physically sign over every asset\n    *   State taxes (like stamp duty) don't apply to these transfers\n    *   The receiving company steps into the shoes of the old company, taking over all appointments, duties, and responsibilities\n\n*   **Protections and evidence:**\n    *   Sealed certificates from the company are accepted as proof in court that it has authority to act\n    *   The Act doesn't replace other laws — people still have all their other legal rights\n\n**Who it affects:**\n\n*   Trustee companies operating in South Australia\n*   People who appoint trustee companies to manage their wills, estates, or trusts\n*   Beneficiaries of trusts and estates managed by these companies\n*   The Supreme Court of South Australia (which oversees these companies)\n\n**Why it matters:**\n\nThis Act provides the legal foundation for professional trust and estate management in South Australia. It ensures that when you appoint a company to handle your affairs after death or during incapacity, there are clear rules about what they can do, how they must behave, and what happens if things go wrong. The transfer provisions (Part 3A) are particularly important for stability — they ensure that if your trustee company gets into trouble or sells its business, your affairs can be seamlessly transferred to another company without disruption."},"flash_summary_failed":{"failed":true,"reason":"A positive credit balance is required for all requests, including BYOK, so fallback providers remain available. Add credits at https://vercel.com/d?to=%2F%5Bteam%5D%2F%7E%2Fai%3Fmodal%3Dtop-up to continue.","source":"analysis-cron"}},"importantCases":[],"_links":{"self":"/api/acts/trustee-companies-act-1988","history":"/api/acts/trustee-companies-act-1988/history","analysis":"/api/acts/trustee-companies-act-1988/analysis","conflicts":"/api/acts/trustee-companies-act-1988/conflicts","importantCases":"/api/acts/trustee-companies-act-1988/important-cases","documents":"/api/acts/trustee-companies-act-1988/documents"}}