Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au
Australian Capital Territory
Perpetuities and Accumulations
Act 1985
A1985-65
Republication No 7
Effective: 1 May 2017
Republication date: 1 May 2017
Last amendment made by A2017-8
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About this republication
The republished law
This is a republication of the Perpetuities and Accumulations Act 1985 (including any
amendment made under the Legislation Act 2001, part 11.3 (Editorial changes)) as in force on
1 May 2017. It also includes any commencement, amendment, repeal or expiry affecting this
republished law to 1 May 2017.
The legislation history and amendment history of the republished law are set out in endnotes 3
and 4.
Kinds of republications
The Parliamentary Counsel’s Office prepares 2 kinds of republications of ACT laws (see the
ACT legislation register at www.legislation.act.gov.au):
authorised republications to which the Legislation Act 2001 applies
unauthorised republications.
The status of this republication appears on the bottom of each page.
Editorial changes
The Legislation Act 2001, part 11.3 authorises the Parliamentary Counsel to make editorial
amendments and other changes of a formal nature when preparing a law for republication.
Editorial changes do not change the effect of the law, but have effect as if they had been made
by an Act commencing on the republication date (see Legislation Act 2001, s 115 and s 117).
The changes are made if the Parliamentary Counsel considers they are desirable to bring the law
into line, or more closely into line, with current legislative drafting practice.
This republication does not include amendments made under part 11.3 (see endnote 1).
Uncommenced provisions and amendments
If a provision of the republished law has not commenced, the symbol U appears immediately
before the provision heading. Any uncommenced amendments that affect this republished law
are accessible on the ACT legislation register (www.legislation.act.gov.au). For more
information, see the home page for this law on the register.
Modifications
If a provision of the republished law is affected by a current modification, the symbol M
appears immediately before the provision heading. The text of the modifying provision appears
in the endnotes. For the legal status of modifications, see the Legislation Act 2001, section 95.
Penalties
At the republication date, the value of a penalty unit for an offence against this law is $150 for
an individual and $750 for a corporation (see Legislation Act 2001, s 133).
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contents 1
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Australian Capital Territory
Perpetuities and Accumulations
Act 1985
Contents
Page
1 Name of Act 2
2 Dictionary 2
2A Notes 2
3 Application of Act 2
4 Application of Act to Territory 3
5 Time of effect of will 3
6 Member of class 3
7 Powers of appointment 4
8 Perpetuity period 4
9 Wait and see 5
10 Reduction of age and exclusion of class members 6
11 Death of potential class member 7
12 Administrative power of trustees 8
13 Remuneration of trustees 8
Contents
Page
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14 Superannuation and other funds 9
15 Determinable interests 10
16 Options 11
17 Trusts for purposes which are not charitable 11
18 Dependent interests 12
19 Accumulation of income 12
20 Savings and transitional provisions 13
Dictionary 14
Endnotes
1 About the endnotes 16
2 Abbreviation key 16
3 Legislation history 17
4 Amendment history 19
5 Earlier republications 20
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Australian Capital Territory
Perpetuities and Accumulations
Act 1985
An Act to effect reforms in the rules of law relating to perpetuities and
accumulations
Section 1
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1 Name of Act
This Act is the Perpetuities and Accumulations Act 1985.
2 Dictionary
The dictionary at the end of this Act is part of this Act.
Note 1 The dictionary at the end of this Act defines certain terms used in this
Act, and includes references (signpost definitions) to other terms
defined elsewhere.
For example, the signpost definition ‘trustee—see the Trustee Act 1925,
dictionary.’ means that the term ‘trustee’ is defined in that dictionary
and the definition applies to this Act.
Note 2 A definition in the dictionary (including a signpost definition) applies to
the entire Act unless the definition, or another provision of the Act,
provides otherwise or the contrary intention otherwise appears (see
Legislation Act, s 155 and s 156 (1)).
2A Notes
A note included in this Act is explanatory and is not part of this Act.
Note See the Legislation Act, s 127 (1), (4) and (5) for the legal status of
notes.
3 Application of Act
(1) Except as provided by sections 12, 13 and 14, this Act does not
apply in relation to a settlement taking effect before the
commencement date.
(2) This Act applies in relation to a settlement exercising a power of
appointment, whether general or special, and taking effect on or
after the commencement date, whether or not it applies in relation to
the settlement creating the power of appointment.
(3) For subsection (2), a gift over in default of an appointment under a
power, whether general or special, shall be treated as a settlement
exercising a power of appointment.
Section 4
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(4) Where a provision of a will executed before the commencement
date but taking effect on or after that date creates an interest—
(a) if that provision would not have infringed the rule against
perpetuities if this Act had not been made—the provision shall
take effect as if this Act had not been made; or
(b) if that provision would have infringed the rule against
perpetuities if this Act had not been made—this Act applies to
the provision.
4 Application of Act to Territory
(1) The rule against perpetuities and the rule against perpetual trusts
bind the Territory.
(2) However, nothing in the rule against perpetuities, in the rule against
perpetual trusts or in this Act affects any settlement made by the
Territory.
(3) Subsection (1) has effect except so far as another Territory law
otherwise provides.
(4) Subsection (2) has effect despite the Legislation Act 2001,
section 121 (Binding effect of Acts).
5 Time of effect of will
For this Act, a will shall, in relation to a disposition contained in it,
be deemed to take effect on the death of the testator.
6 Member of class
For this Act, a person shall be treated as a member of a class if in
the person’s case each and every condition identifying a member of
the class is satisfied.
Section 7
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7 Powers of appointment
(1) For the purposes of the rule against perpetuities, a power of
appointment shall be treated as a special power unless—
(a) in the settlement creating the power it is expressed to be
exercisable by 1 person only; and
(b) the power could at all times during its currency when that
person is of full age and capacity be exercised immediately by
him or her to transfer to, or otherwise vest in, himself or herself
the whole of the interest governed by the power without the
consent of any person or compliance with any other condition,
not being a formal condition relating only to the mode of the
exercise of the power.
(2) Notwithstanding subsection (1), a power of appointment that would,
but for the fact that it was made exercisable only by will, have been
a general power shall be treated as a general power for the purpose
of determining whether an appointment under the power infringes
the rule against perpetuities.
(3) For this section, an authority shall be taken to be unconditional
notwithstanding any formal condition relating to the mode of
exercise of the power.
8 Perpetuity period
(1) For the purposes of the rule against perpetuities, the perpetuity
period applicable to an interest created by a settlement shall, subject
to this section, be 80 years from the date on which the settlement
takes effect.
(2) Where an appointment of an interest is made under a special power
of appointment, the perpetuity period shall be reckoned from the
date on which the settlement creating the power takes effect.
Section 9
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(3) Where a child who is en ventre sa mère at the time when the
perpetuity period applicable to an interest created by a settlement
would, but for this subsection, have expired would, if that child had
been born before that time, have taken that interest, that perpetuity
period shall be extended until—
(a) the expiry of the date on which the child is born; or
(b) it becomes apparent that the child will not be born;
as the case requires.
(4) Subsection (3) does not apply unless, before the expiry of the
perpetuity period that would, but for that subsection, be applicable
to the interest created by the relevant settlement, the trustees under
that settlement have received notice, supported by a certificate
signed by a duly qualified medical practitioner who has examined
the woman carrying the child in question, that the child is en ventre
sa mère.
9 Wait and see
(1) Where a provision of a settlement which creates an interest would,
but for this section or this section and section 10, infringe the rule
against perpetuities, the interest shall be treated, until such time (if
any) as it becomes certain that, notwithstanding section 10, it must
vest, if at all, after the end of the perpetuity period, as if the
provision did not infringe that rule, and its so becoming certain does
not affect the validity of any thing previously done in relation to the
interest.
(2) Where a provision of a settlement which creates an interest
consisting of the conferring of a general power of appointment
would, but for this section or this section and section 10, infringe the
rule against perpetuities, the interest shall be treated, until such time
(if any) as it becomes certain that, notwithstanding section 10, the
power will not be exercisable within the perpetuity period, as if the
provision did not infringe that rule.
Section 10
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(3) Where a provision of a settlement which creates an interest
consisting of the conferring of any power or right (except a general
power of appointment) would, but for this section or this section and
section 10, infringe the rule against perpetuities, the interest shall be
treated as regards any exercise of the power or right within the
perpetuity period as if the provision did not infringe that rule, and
the provision shall be treated as infringing that rule only if and so far
as the power or right is not fully exercised within the perpetuity
period.
10 Reduction of age and exclusion of class members
(1) Where—
(a) a provision of a settlement creates an interest and the vesting of
the interest depends on the attainment by a person of a
specified age or by persons of respective specified ages; and
(b) immediately before the expiration of the perpetuity period
applicable to that interest—
(i) that person has not attained the specified age, or any of
those persons has not attained the age specified in relation
to that person, as the case may be; and
(ii) the interest has not vested; and
(c) the provision is, by reason of the operation of section 9, to be
treated as if it did not infringe the rule against perpetuities;
the interest shall, for all purposes, be treated as if its vesting
depended on the attainment by the person, or each of the persons
referred to in paragraph (b) (i), as the case requires, of the age that
he or she has attained immediately before the expiration of that
perpetuity period.
Section 11
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(2) Where an interest to which subsection (1) applies is ulterior to any
other interest created by the settlement, that other interest shall not
be defeated or otherwise adversely affected by the operation of
subsection (1).
(3) Subject to section 11, where—
(a) a provision of a settlement creates an interest which is to be
taken by a class of persons; and
(b) immediately before the expiry of the perpetuity period
applicable to that interest—
(i) the interest has not vested; and
(ii) there is a person who is, or there are persons each of
whom is, a member of that class (whether under the
operation of subsection (1) or otherwise); and
(iii) the provision is, by reason only of the operation of section
9, to be treated as if it did not infringe the rule against
perpetuities;
in relation to that interest, that class shall be taken to comprise only
that person or those persons.
(4) Where this section has effect in relation to a provision, the operation
of this section does not affect the validity of any thing previously
done in relation to the interest created by the provision.
11 Death of potential class member
Where—
(a) section 10 (1) applies to an interest that is to be taken by a class
of persons; and
Section 12
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(b) a person would have been a member, or persons would have
been members, of that class (whether under the operation of
section 10 (1) or otherwise) if that person or those persons had
survived to the expiry of the perpetuity period applicable to
that interest; and
(c) that person has, or those persons have, any children who
survive to the expiry of that perpetuity period;
those children will take, per stirpes, the interest that their parent, or
the respective interests that their parents, would have taken had that
parent or those parents survived to the expiry of that perpetuity
period.
12 Administrative power of trustees
(1) The rule against perpetuities does not invalidate an administrative
power in relation to trust property during the subsistence of a
beneficial interest in the trust property.
(2) This section applies to an administrative power taking effect, and to
any exercise of an administrative power, before, on or after the
commencement date.
(3) In this section:
administrative power means any power of a trustee other than a
power to appoint, pay, transfer, advance, apply, distribute or
otherwise deal with trust property in or towards satisfaction of the
interest of a beneficiary under the trust or in or towards satisfaction
of a purpose of the trust.
13 Remuneration of trustees
(1) The rule against perpetuities does not invalidate a power or other
provision for remunerating a trustee for the trustee’s services.
(2) This section applies to a power or other provision for remunerating a
trustee taking effect before, on or after the commencement date.
Section 14
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14 Superannuation and other funds
(1) The rule against perpetuities does not invalidate a fund established
by a settlement for the benefit of—
(a) employees; or
(b) self-employed persons; or
(c) domestic partners, children, grandchildren, parents, dependants
or legal personal representatives of employees or self-
employed persons; or
Note For the meaning of domestic partner, see Legislation Act, s 169.
(d) persons duly selected or nominated for that purpose by
employees or self-employed persons pursuant to the provisions
of the settlement.
(2) This section applies to settlements taking effect before, on or after
the commencement date.
(3) In this section:
employees includes directors, officers, servants and employees of
any employer.
fund means a provident, superannuation, sick, accident, assurance,
unemployment, pension or co-operative benefit fund, scheme,
arrangement or provision or other like fund, scheme, arrangement or
provision.
self-employed persons includes persons engaged on their own
behalf in any lawful profession, trade, occupation or calling.
Section 15
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15 Determinable interests
(1) The rule against perpetuities operates to render invalid the provision
for determination of a determinable interest in the same manner as
the rule would operate to render invalid a condition subsequent in a
settlement for defeasance of the determinable interest on the same
contingency, and where that rule does so operate—
(a) the determinable interest shall not be so determinable; and
(b) a subsequent interest not itself rendered invalid by that rule
shall be postponed or defeated to the extent necessary to allow
the determinable interest to have effect free from the provision
for determination.
(2) For this section, an interest created by, or a provision of, an
appointment or other exercise of a power in a settlement (except a
general power of appointment) shall be treated as an interest created
by, or a provision of, the settlement.
(3) Notwithstanding subsection (1), the rule against perpetuities shall
not apply to—
(a) a gift over from 1 charity to another; or
(b) any provision for the determination of a lease for breach of a
covenant or condition of the lease.
(4) In this section:
determinable interest means an interest created by a settlement,
being an interest which is, by a provision of the settlement,
determinable on a contingency.
subsequent interest, in relation to a determinable interest means an
interest, whether vested or contingent—
(a) created by the settlement, or remaining undisposed of by the
settlement, or taking effect by way of reverter, resulting trust,
residuary gift or otherwise on a possibility arising under the
settlement; and
Section 16
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(b) as regards which the determinable interest is a prior interest.
16 Options
(1) The rule against perpetuities does not apply to—
(a) any option to renew a lease; or
(b) an option to acquire for valuable consideration a reversionary
interest in the property comprised in a lease if the option is
exercisable only—
(i) by the lessee or the lessee’s successors in title; and
(ii) during the currency of the lease.
(2) Where the rule against perpetuities operates to render invalid an
option, no action lies, in contract or otherwise, for giving effect to it
or making restitution for its lack of effect.
17 Trusts for purposes which are not charitable
(1) Except as provided by this section, this Act shall not affect the
operation of the rule against perpetual trusts.
(2) Where, by a settlement, there is a disposition for a purpose, the
perpetuity period applicable to the disposition shall, for the purposes
of the rule against perpetual trusts, be 80 years from the date on
which the settlement takes effect.
(3) Where—
(a) by a settlement, a disposition creates a trust for a purpose; and
(b) the trust would, but for this section, infringe the rule against
perpetual trusts; and
Section 18
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(c) the term of the trust is determined by reference to the
occurrence or nonoccurrence of a contingency or contingencies
specified in the settlement;
the trust shall be treated as if it did not infringe the rule until such
time as it becomes certain that, by reason of the occurrence or
nonoccurrence of such a contingency, the term of the trust specified
in the settlement will exceed the perpetuity period, and its so
becoming certain does not affect the validity of anything previously
done in relation to the trust.
(4) This section does not apply to a disposition for a purpose which is
charitable.
18 Dependent interests
(1) Where a provision of a settlement creates an interest, the provision
is not rendered invalid by the rule against perpetuities or the rule
against perpetual trusts by reason only that the interest is ulterior to
and dependent upon an interest which is so invalid.
(2) Where a provision of a settlement creates an interest which is
ulterior to another interest and the other interest is rendered invalid
by the rule against perpetuities or the rule against perpetual trusts,
the acceleration of the vesting of the ulterior interest shall not be
affected by reason only that the other interest is so invalid.
19 Accumulation of income
(1) Where property is disposed of in such a manner that the income of
the property may be or is directed to be accumulated wholly or in
part, the power or direction to accumulate that income is valid if the
disposition of the accumulated income is, or may be, valid, but not
otherwise.
Section 20
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(2) This section does not affect the power of any person to terminate an
accumulation that is for the person’s benefit, or any jurisdiction or
power of a court to maintain or advance out of accumulations, or
any power of a trustee under any law in force in the ACT or under
any settlement.
20 Savings and transitional provisions
(1) Section 13 does not affect any rights arising under a judgment or an
order which took effect before the commencement date or arising
under any agreement made before that date.
(2) Notwithstanding section 21, the provisions of the Act referred to in
that section continue to apply in relation to a settlement that took
effect before the commencement date.
Dictionary
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Dictionary
(see s 2)
Note 1 The Legislation Act contains definitions and other provisions relevant to
this Act.
Note 2 For example, the Legislation Act, dict, pt 1 defines the following terms:
ACT
exercise
interest
the Territory.
commencement date means the date of commencement of this Act.
disposition includes—
(a) the conferring or exercising of a power of appointment or any
other power or authority to dispose of property; and
(b) any alienation of property.
power of appointment includes any discretionary power to make a
disposition.
property includes any interest in real or personal property and any
thing in action.
settlement includes—
(a) a will; and
(b) an instrument, testamentary or otherwise, exercising a power of
appointment, whether general or special; and
(c) any other instrument, transaction or dealing whereby a person
makes a disposition;
but does not include a law in force in the ACT.
the rule against perpetual trusts means the common law rule that
invalidates a trust for a purpose which is not charitable where the
duration of the trust, if it were valid, would or might exceed the
perpetuity period.
Dictionary
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trust—see the Trustee Act 1925, section 4.
trustee—see the Trustee Act 1925, dictionary.
will includes a codicil.
Endnotes
1 About the endnotes
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Endnotes
1 About the endnotes
Amending and modifying laws are annotated in the legislation history and the
amendment history. Current modifications are not included in the republished
law but are set out in the endnotes.
Not all editorial amendments made under the Legislation Act 2001, part 11.3 are
annotated in the amendment history. Full details of any amendments can be
obtained from the Parliamentary Counsel’s Office.
Uncommenced amending laws are not included in the republished law. The
details of these laws are underlined in the legislation history. Uncommenced
expiries are underlined in the legislation history and amendment history.
If all the provisions of the law have been renumbered, a table of renumbered
provisions gives details of previous and current numbering.
The endnotes also include a table of earlier republications.
2 Abbreviation key
A = Act NI = Notifiable instrument
AF = Approved form o = order
am = amended om = omitted/repealed
amdt = amendment ord = ordinance
AR = Assembly resolution orig = original
ch = chapter par = paragraph/subparagraph
CN = Commencement notice pres = present
def = definition prev = previous
DI = Disallowable instrument (prev...) = previously
dict = dictionary pt = part
disallowed = disallowed by the Legislative r = rule/subrule
Assembly reloc = relocated
div = division renum = renumbered
exp = expires/expired R[X] = Republication No
Gaz = gazette RI = reissue
hdg = heading s = section/subsection
IA = Interpretation Act 1967 sch = schedule
ins = inserted/added sdiv = subdivision
LA = Legislation Act 2001 SL = Subordinate law
LR = legislation register sub = substituted
LRA = Legislation (Republication) Act 1996 underlining = whole or part not commenced
mod = modified/modification or to be expired
Endnotes
Legislation history 3
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3 Legislation history
This Act was originally a Commonwealth ordinance—the Perpetuities and
Accumulations Ordinance 1985 Ord1985-65 (Cwlth).
The Australian Capital Territory (Self-Government) Act 1988 (Cwlth), s 34 (4)
converted most former Commonwealth ordinances in force in the ACT into ACT
enactments. This allowed the ACT Legislative Assembly to amend and repeal the
laws. This Act was converted into an ACT enactment on 11 May 1989 (self-
government day).
As with most ordinances in force in the ACT, the name was changed from
Ordinance to Act by the Self-Government (Citation of Laws) Act 1989 A1989-21,
s 5 on 11 May 1989 (self-government day).
Before 11 May 1989, ordinances commenced on their notification day unless
otherwise stated (see Seat of Government (Administration) Act 1910 (Cwlth),
s 12).
Commonwealth legislation
Perpetuities and Accumulations Act 1985 A1985-65
notified 19 December 1985
commenced 19 December 1985
as amended by
Self-Government (Consequential Amendments) Ordinance 1989
Ord1989-38 sch 1
notified 10 May 1989 (Cwlth Gaz 1989 No S160)
s 1, s 2 commenced 10 May 1989 (s 2 (1))
sch 1 commenced 11 May 1989 (s 2 (2) and see Cwlth Gaz 1989 No
S164)
Legislation after becoming Territory enactment
Acts Revision (Position of Crown) Act 1993 A1993-44 sch 1
notified 27 August 1993 (Gaz 1993 No S165)
sch 1 commenced 27 August 1993 (s 2)
Endnotes
3 Legislation history
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Legislation (Consequential Amendments) Act 2001 A2001-44 pt 280
notified 26 July 2001 (Gaz 2001 No 30)
s 1, s 2 commenced 26 July 2001 (IA s 10B)
pt 280 commenced 12 September 2001 (s 2 and see Gaz 2001
No S65)
Statute Law Amendment Act 2001 (No 2) 2001 No 56 pt 3.40
notified 5 September 2001 (Gaz 2001 No S65)
commenced 5 September 2001 (s 2 (1))
Legislation Amendment Act 2002 A2002-11 pt 2.37
notified LR 27 May 2002
s 1, s 2 commenced 27 May 2002 (LA s 75)
pt 2.37 commenced 28 May 2002 (s 2 (1))
Legislation (Gay, Lesbian and Transgender) Amendment Act 2003
A2003-14 sch 1 pt 1.27
notified LR 27 March 2003
s 1, s 2 commenced 27 March 2003 (LA s 75 (1))
sch 1 pt 1.27 commenced 28 March 2003 (s 2)
Civil Unions Act 2006 A2006-22 sch 1 pt 1.24
notified LR 19 May 2006
s 1, s 2 commenced 19 May 2006 (LA s 75 (1))
sch 1 pt 1.24 never commenced
Note Act repealed by disallowance 14 June 2006 (see Cwlth Gaz
2006 No S93)
Statute Law Amendment Act 2007 A2007-3 sch 3 pt 3.75
notified LR 22 March 2007
s 1, s 2 taken to have commenced 1 July 2006 (LA s 75 (2))
sch 3 pt 3.75 commenced 12 April 2007 (s 2 (1))
Civil Partnerships Act 2008 A2008-14 sch 1 pt 1.20
notified LR 15 May 2008
s 1, s 2 commenced 15 May 2008 (LA s 75 (1))
sch 1 pt 1.20 commenced 19 May 2008 (s 2 and CN2008-8)
Co-operatives National Law (ACT) Act 2017 A2017-8 sch 2 pt 2.5
notified LR 4 April 2017
s 1, s 2 commenced 4 April 2017 (LA s 75 (1))
sch 2 pt 2.5 commenced 1 May 2017 (s 2)
Endnotes
Amendment history 4
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4 Amendment history
Name of Act
s 1 A2007-3 amdt 3.402
Dictionary
s 2 defs reloc to dict A2007-3 amdt 3.404
sub A2007-3 amdt 3.405
def interest om A2007-3 amdt 3.403
Notes
s 2A ins A2007-3 amdt 3.405
Application of Act to Territory
s 4 am A1993-44 sch 1
sub A2002-11 amdt 2.77
Superannuation and other funds
s 14 am A2003-14 amdt 1.86, amdt 1.87; A2006-22 amdt 1.104
(A2006-22 rep before commenced by disallowance (see
Cwlth Gaz 2006 No S93)); A2008-14 amdt 1.72; A2017-8
amdt 2.6
Repeal
s 21 om A2001-44 amdt 1.3119
Trustee Act 1957—amendment
s 22 om A2001-56 amdt 3.465 (see also A2001-44 amdt 1.3119)
Seat of Government (Administration) Ordinance 1930—amendment
s 23 om Ord1989-38 sch 1
Dictionary
dict ins A2007-3 amdt 3.406
def commencement date reloc from s 2 A2007-3 amdt 3.404
def disposition reloc from s 2 A2007-3 amdt 3.404
def power of appointment reloc from s 2 A2007-3 amdt 3.404
def property reloc from s 2 A2007-3 amdt 3.404
def settlement reloc from s 2 A2007-3 amdt 3.404
def the rule against perpetual trusts reloc from s 2 A2007-3
amdt 3.404
def trust sub A2001-56 amdt 3.464
reloc from s 2 A2007-3 amdt 3.404
def trustee sub A2001-56 amdt 3.464
reloc from s 2 A2007-3 amdt 3.404
def will reloc from s 2 A2007-3 amdt 3.404