40Powers of personal representative as to appropriation

### 40 Powers of personal representative as to appropriation > > (1)  *\[Section 40 Subsection (1) amended by No. 63 of 1963, s. 2 and Sched. II \]*The personal representative may appropriate any part of the real or personal estate, including things in action, of the deceased in the actual condition or state of investment thereof at the time of appropriation, in or towards satisfaction of any legacy bequeathed by the deceased, or of any other interest or share in his property, whether settled or not, as to the personal representative may seem just and reasonable, according to the respective rights of the persons interested in the property of the deceased: Provided that – > > > > > > (a) an appropriation shall not be made under this section so as to affect prejudicially any specific devise or bequest; > > > > > > > (b) [*\[Section 40 Subsection (1) amended by No. 32 of 1996, Sched. 1, Applied:01 Nov 1999\]*](/view/html/inforce/1999-11-01/act-1996-032#JS1@Ja2@GC1@Hpa@EN) [*\[Section 40 Subsection (1) amended by No. 69 of 2013, Sched. 1, Applied:17 Feb 2014\]*](/view/html/inforce/2014-02-17/act-2013-069#JS1@Ja2@GC1@EN) [*\[Section 40 Subsection (1) amended by No. 38 of 2015, s. 9, Applied:13 Oct 2015\]*](/view/html/inforce/2015-10-13/act-2015-038#GS9@Hpa@EN) an appropriation of property, whether or not being an investment authorized by law or by the will, if any, of the deceased for the investment of money subject to a trust, shall not, save as hereinafter mentioned, be made under this section except with the following consents: > > > > > > > > > > (i) when made for the benefit of a person absolutely and beneficially entitled in possession, the consent of that person; > > > > > > > > > > > (ii) when made in respect of any settled legacy, share, or interest, the consent of either the trustee thereof, if any (not being also the personal representative), or the person who for the time being may be entitled to the income; > > > > > > > > If the person whose consent is so required as aforesaid is an infant or an involuntary patient within the meaning of the [Mental Health Act 2013](/view/html/inforce/2026-04-12/act-2013-002) , the consent shall be given on his behalf by his parents or parent, testamentary or other guardian, or the administrator, or if, in the case of an infant, there is no such parent or guardian, by the Court on the application of his next friend; > > > > > > > (c) no consent, save of such trustee as aforesaid, shall be required on behalf of a person who may come into existence after the time of appropriation, or who cannot be found or ascertained at that time; > > > > > > > (d) [*\[Section 40 Subsection (1) amended by No. 32 of 1996, Sched. 1, Applied:01 Nov 1999\]*](/view/html/inforce/1999-11-01/act-1996-032#JS1@Ja2@GC1@Hpb@EN) [*\[Section 40 Subsection (1) amended by No. 18 of 2008, s. 5, Applied:26 Jun 2008\]*](/view/html/inforce/2008-06-26/act-2008-018#GS5@EN) [*\[Section 40 Subsection (1) amended by No. 38 of 2015, s. 9, Applied:13 Oct 2015\]*](/view/html/inforce/2015-10-13/act-2015-038#GS9@Hpb@EN) where a person is, by reason of mental disorder, incapable of managing his property and affairs and no administrator has been appointed, then, if the appropriation is of an investment authorized by law or by the will, if any, of the deceased for the investment of money subject to the trust, no consent shall be required on behalf of that person; and > > > > > > > (e) if, independently of the personal representative, there is no trustee of a settled legacy, share, or interest, and no person of full age and capacity entitled to the income thereof, no consent shall be required to an appropriation in respect of such legacy, share, or interest, provided that the appropriation is of an investment authorized as aforesaid. > > > (2)  Any property duly appropriated under the powers conferred by this section shall thereafter be treated as an authorized investment, and may be retained or dealt with accordingly. > > > (3)  For the purposes of such appropriation, the personal representative may ascertain and fix the value of the respective parts of the real and personal estate and the liabilities of the deceased as he may think fit, and shall for that purpose employ a qualified valuer, in any case where such employment may be necessary; and may make any conveyance, including an assent, which may be requisite for giving effect to the appropriation. > > > (4)  An appropriation made pursuant to this section shall bind all persons interested in the property of the deceased whose consent is not hereby made requisite. > > > (5)  The personal representative shall, in making the appropriation, have regard to the rights of any person who may thereafter come into existence, or who cannot be found or ascertained at the time of the appropriation, and of any other person whose consent is not required by this section. > > > (6)  This section does not prejudice any other power of appropriation conferred by law or by the will, if any, of the deceased, and takes effect with any extended powers conferred by the will, if any, of the deceased, and, where an appropriation is made under this section in respect of a settled legacy, share, or interest, the property appropriated shall remain subject to all trusts for sale and powers of leasing, disposition, and management, or varying investments, which would have been applicable thereto or to the legacy, share, or interest in respect of which the appropriation is made, if no such appropriation had been made. > > > (7)  If, after any real estate has been appropriated in purported exercise of the powers conferred by this section, the person to whom it was conveyed disposes of it or any interest therein, then, in favour of a purchaser, the appropriation shall be deemed to have been made in accordance with the requirements of this section and after all requisite consents, if any, had been given. > > > (8)  In this section, a settled legacy, share, or interest includes any legacy, share, or interest to which a person is not absolutely entitled in possession at the date of the appropriation, also an annuity, and ***purchaser*** means a purchaser for money or money's worth. > > > (9)  This section applies whether the deceased died intestate or not, and whether before or after the commencement of this Act, and extends to property over which a testator exercises a general power of appointment, and authorizes the setting apart of a fund to answer an annuity by means of the income of that fund or otherwise.