81Powers of executors and administrators as to appropriation

81 Powers of executors and administrators as to appropriation (1) Subject to this section, the executor or administrator may, without the consent of any person or the order of a court, appropriate any part of the estate, including things in action, of the deceased person, in its actual condition or state of investment at the time of appropriation, in or towards satisfaction of any legacy bequeathed by the deceased person or of any other interest or share in his or her property, whether settled or not, as to the personal representative seems just and reasonable according to the respective rights of the persons interested in the property of the deceased person. Administration and Probate Act 1969 37 (2) An appropriation shall not be made under this section so as to affect prejudicially any specific device or bequest. (3) Subject to this section, an appropriation of property, whether or not it is an investment authorized by law or by the will (if any) of the deceased person for the investment of money subject to the trust created by the will, shall not be made under this section except with the following consents: (a) when made for the benefit of a person absolutely and beneficially entitled in possession – the consent of that person; (b) when made in respect of any settled legacy, share or interest – the consent of either the trustee thereof, if any, (not being also the executor or administrator) or the person who is for the time being entitled to the income. (4) If the person whose consent is required under subsection (3) is an infant or a mentally defective person, the consent shall be given on his or her behalf by: (a) his or her parents or parent, testamentary or other guardian or committee; (b) the Court on the application of his or her next friend, if he or she is an infant and there is not such a parent or guardian; or (c) the Court on the application of the executor or administrator, if he or she is a mentally defective person and there is not such a committee. (5) No consent (except of such a trustee as is mentioned in subsection (3)(b)) 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. (6) If, independently of the executor or administrator, 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 the legacy, share or interest provided that the appropriation is of an investment authorized by law or by the will (if any) of the deceased person for the investment of money subject to the trust. (7) 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. Administration and Probate Act 1969 38 (8) For the purposes of such an appropriation the executor or administrator may ascertain and fix the value of the respective parts of the real and personal estate and the liabilities of the deceased person as he or she thinks fit and shall for that purpose employ a duly 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. (9) An appropriation made pursuant to this section shall bind all persons interested in the property of the deceased person whose consent is not required by this section. (10) The executor or administrator 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 appropriation and of any other person whose consent is not required by this section. (11) This section shall not prejudice any other power of appropriation conferred by law or by the will (if any) of the deceased person 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 to it or to the legacy, share or interest in respect of which the appropriation is made if no such appropriation had been made. (12) If, after any real estate (including chattels real) 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 in it, 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. (13) 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 and includes also an annuity; and purchaser means a purchaser for money or money's worth. (14) This section: (a) applies whether the deceased person died intestate or not; (b) extends to property over which a testator exercises a general power of appointment, including the statutory power to dispose of entailed interests; and Administration and Probate Act 1969 39 (c) authorizes the setting apart of a fund to answer an annuity by means of the income of that fund or otherwise.