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] [Section 40 Subsection (1) amended by No. 69 of 2013, Sched. 1, Applied:17 Feb 2014] [Section 40 Subsection (1) amended by No. 38 of 2015, s. 9, Applied:13 Oct 2015] 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 , 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;