Version incorporating amendments as at
1 March 2020
table of provisions
Section Page
Part 1—Preliminary 1
1 Purpose 1
2 Commencement 1
3 Definitions 2
Part 2—State Trustees 4
4 State Trustees as executor 4
5 Application by State Trustees 4
8 State Trustees may act as sole trustee or co-trustee 4
9 State Trustees may act with advisory trustees 5
10 Advances 6
12 Reciprocal arrangements relating to represented persons 7
Part 3—General 10
13 Fees and commissions 10
14 Restriction on charging of fees for legal services 10
15 Government guarantee 12
16 Preservation of existing rights 13
17 Secrecy provision 14
18 Protection of persons dealing with State Trustees 15
19 Certificate issued by State Trustees 15
20 Part IX of Trustee Companies Act 1984 not to apply 16
20A Continued application of the Trustee Companies Act 1984 17
Part 4—Community service obligations 18
21 Minister responsible for access to services 18
22 Provision of services 18
23 Agreements with State Trustees and other trustee companies 18
Part 5—Repeal of State Trust Corporation of Victoria Act 1987 19
25 Transitional 19
26 Construction of references 20
Endnotes 21
1 General information 21
2 Table of Amendments 23
3 Amendments Not in Operation 25
4 Explanatory details 26
Version No.031
State Trustees (State Owned Company) Act 1994
No. 45 of 1994
Version incorporating amendments as at
1 March 2020
The Parliament of Victoria enacts as follows:
Part 1—Preliminary
1 Purpose
The purpose of this Act is to facilitate, and make provision relating to, the conversion of the State Trust Corporation of Victoria to a State owned company which—
(a) is a company under the Corporations Law of Victoria; and
Section 1 - State Trustees (State Owned Company) Act 1994 - State Trustees (State Owned Company) Act 1994 | Zoe
(b) is a trustee company under the Trustee Companies Act 1984; and
(c) is able to provide services to members of the public under Part 4 of this Act.
2 Commencement
(1) Part 1 and section 27 come into operation on the day on which this Act receives the Royal Assent.
(2) Subject to subsection (3), the remaining provisions of this Act come into operation on a day or days to be proclaimed.
(3) If a provision referred to in subsection (2) has not come into operation within the period of 12 months beginning on, and including, the day on which this Act receives the Royal Assent, it comes into operation on the first day after the end of that period.
3 Definitions
In this Act—
S. 3 def. of Board repealed by No. 52/1998 s. 311(Sch. 1 item 85.1(a)).
Court means the Supreme Court of Victoria;
estate means real and personal estate;
property includes a thing in action and any interest in real or personal property;
S. 3 def. of protected person amended by No. 52/1998 s. 311(Sch. 1 item 85.1(b)), repealed by No. 13/2019 s. 221(Sch. 1 item 50.1(a)).
registrar means the registrar of probates of the Court;
S. 3 def. of represented person amended by No. 52/1998 s. 311(Sch. 1 item 85.1(b)), substituted by No. 13/2019 s. 221(Sch. 1 item 50.1(b)).
represented person means a represented person within the meaning of the Guardianship and Administration Act 2019 for whom State Trustees is appointed as administrator under that Act;
State Trust means the State Trust Corporation of Victoria within the meaning of the State Trust Corporation of Victoria Act 1987 as in force immediately before the commencement of section 24;
S. 3 def. of State Trustees substituted by No. 44/2001 s. 3(Sch. item 105.1).
State Trustees means State Trustees Limited (A.C.N. 064 593 148).
Part 2—State Trustees
4 State Trustees as executor
(1) Except as provided in subsection (2), any person named expressly or by implication as an executor who would be entitled to obtain a grant of probate of a will jointly with any other person may authorise State Trustees to apply for the grant of probate of the will either alone with leave reserved to any other person to come in and prove or jointly with any other person entitled to apply.
(2) Subsection (1) does not apply if the testator has specified in his or her will that—
(a) the office of executor is not to be delegated; or
(b) State Trustees is not to act.
5 Application by State Trustees
State Trustees may apply for administration of the estate of any person who has died at any time either within Victoria or elsewhere possessed of or entitled to property within Victoria if the Court or the registrar is satisfied that no other person is entitled and is capable of taking and ready to take a grant of letters of administration.
Ss 6, 7 repealed by No. 15/1998
s. 3.
8 State Trustees may act as sole trustee or co-trustee
Despite anything in any Act or the terms of any trust as to the number of trustees, State Trustees may be appointed or become sole trustee or a co-executor or co-trustee unless expressly prohibited by the terms of the trust.
9 State Trustees may act with advisory trustees
(1) State Trustees may act with an advisory trustee or advisory trustees in administering any trust estate as trustee as provided in this section.
(2) An advisory trustee may be appointed by—
(a) the trust instrument; or
(b) any person having power to appoint new trustees; or
(c) an agreement between State Trustees and any executor, administrator or trustee in which the executor, administrator or trustee agrees to give State Trustees a power of attorney; or
(d) order of the Court on the application of a beneficiary or of any person on whose application the Court would have power to appoint a new trustee.
(3) The following apply if State Trustees acts with any advisory trustee—
(a) the trust property vests in State Trustees which has the sole management and administration of the estate and its trusts;
(b) an advisory trustee is not liable for any act or thing done by State Trustees whether with or without the advice of the advisory trustee;
(c) State Trustees may consult an advisory trustee on any matter relating to the estate or the trusts;
(d) an advisory trustee may advise State Trustees on any matter relating to the estate or the trusts;
(e) any matter in dispute between State Trustees and an advisory trustee may be submitted in a summary manner to the Court;
(f) a person dealing with State Trustees is not to be concerned to inquire as to or be affected by notice of the concurrence or otherwise of any advisory trustee;
(g) the power of appointing a new advisory trustee when exercisable by any continuing advisory trustee is to be exercised by him or her alone;
(h) State Trustees has the same power to apply to the Court for the appointment of a new advisory trustee as any other person.
10 Advances
(1) State Trustees may make an advance from its general account to a beneficiary or a represented person if—
(a) money is required by the beneficiary or represented person who is in necessitous circumstances; and
(b) there are insufficient estate or personal funds available at the time.
(2) State Trustees may charge interest on an advance at a rate of interest not exceeding the rate fixed from time to time under section 2 of the Penalty Interest Rates Act 1983, less 2½ per centum.
S. 11 amended by No. 52/1998 s. 311(Sch. 1 item 85.2), repealed by No. 15/1998
s. 3.
12 Reciprocal arrangements relating to represented persons
(1) In this section—
place outside Victoria means—
(a) another State or a Territory; or
(b) New Zealand or the United Kingdom; or
(c) any other country with which State Trustees has a reciprocity agreement;
proper officer means an officer in a place outside Victoria who under the law of that place has the management of the property and estate of persons who however described under that law are incapable of managing their estates by reason of intellectual impairment, mental illness, brain damage, physical disability or senility.
(2) If State Trustees believes that a represented person has an interest in property in a place outside Victoria, State Trustees may by instrument in writing directed to the proper officer—
(a) certify that State Trustees has the general care, protection and management of the property and estate of the person named in the instrument; and
(b) authorise the proper officer to collect, manage, sell or otherwise dispose of or administer any property in the place in which the represented person has an interest.
(3) State Trustees may give a discharge to the proper officer on the payment or delivery to State Trustees of the balance of money or other property of the represented person which remains after the deduction of—
(a) all costs, charges and expenses incurred by the proper officer in the exercise of the authority; and
(b) any amount which is payable in the place outside Victoria in satisfaction of the debts or other liabilities of the represented person.
(4) State Trustees may revoke or vary any authority by instrument in writing.
S. 12(5) amended by Nos 52/1998 s. 311(Sch. 1 item 85.2), 13/2019 s. 221(Sch. 1 item 50.2(a)).
(5) If a proper officer by instrument in writing directed to State Trustees—
(a) certifies that he or she has the general care, protection and management of the property and estate of the person named in the instrument; and
(b) authorises State Trustees to collect, manage, sell or otherwise dispose of or administer any property in Victoria in which the person named in the instrument has an interest—
the Guardianship and Administration Act 2019 applies with respect to the property and the powers and duties of State Trustees in relation to the property as if—
(c) the person were resident in Victoria and a represented person; and
S. 12(5)(d) amended by No. 13/2019 s. 221(Sch. 1 item 50.2(b)).
(d) the administration order gave State Trustees all the powers and duties referred to in Divisions 6, 7 and 8 of Part 3 of that Act.
(6) State Trustees may pay or deliver to the proper officer the balance of money or other property of the person named in the instrument which remains after the deduction of—
(a) all costs, charges and expenses incurred by State Trustees in the exercise of the authority; and
(b) any amount which is payable to any person resident in Victoria in satisfaction of any debts or other liabilities, of which State Trustees has notice, of the person named in the instrument.
(7) State Trustees must account to the proper officer for any payment made by State Trustees out of the property of a person named in the instrument, but is not bound to see to the application of the payment.
(8) If a decision is made, action taken, consent given or thing done by State Trustees under an authority conferred on State Trustees, the decision, action, consent or thing has effect as if it had been made, taken, given or done by the person named in the instrument and that person had the legal capacity to do so.
(9) State Trustees may exercise the powers under an authority until State Trustees receives notice from the proper officer of—
(a) the revocation of that authority; or
(b) the death of the person in respect of whom the authority was given.
Part 3—General
13 Fees and commissions
(1) In addition to the commissions, fees and remuneration it is entitled to charge and receive and the disbursements it is entitled to recover under the Trustee Companies Act 1984 and despite anything in section 21(2) of that Act, State Trustees is entitled to charge and receive fair and reasonable commissions, fees and remuneration and recover fair and reasonable disbursements for estate related services provided by State Trustees including, without limitation—
(a) genealogical services;
(b) financial planning;
(c) informal administrations;
S. 13(1)(d) amended by Nos 52/1998 s. 311(Sch. 1 item 85.2), 13/2019 s. 221(Sch. 1 item 50.3).
(d) administrations and the examination of administrators' accounts under the Guardianship and Administration Act 2019;
(e) subject to section 14, legal services.
(2) State Trustees must—
(a) lodge with the Minister; and
(b) cause to be published in the Government Gazette—
a copy of its scale of charges in relation to the services referred to in subsection (1).
14 Restriction on charging of fees for legal services
S. 14(1) amended by No. 35/1996 s. 453(Sch. 1 item 78).
(1) Except as provided in this section and section 20A of the Trustee Companies Act 1984, State Trustees must not directly or indirectly charge or receive a fee or recover disbursements for a service provided by a legal practitioner employed by State Trustees or who shares his or her remuneration with State Trustees unless the beneficiary of any estate which is to be charged has first approved the provision of the service, the charging of a fee and the recovery of disbursements.
S. 14(2) amended by No. 35/1996 s. 453(Sch. 1 item 78).
(2) Where—
(a) the beneficiary of an estate cannot reasonably be located; or
(b) there is no beneficiary; or
(c) a beneficiary or person—
S. 14(2)(c)(i) amended by Nos 52/1998 s. 311(Sch. 1 item 85.2), 13/2019 s. 221(Sch. 1 item 50.3).
(i) is under a disability within the meaning of the Guardianship and Administration Act 2019; or
S. 14(2)(c)(ii) repealed by No. 13/2019 s. 221(Sch. 1 item 50.4).
(iii) is otherwise under a legal disability; or
(d) an estate has more than one beneficiary—
State Trustees may charge and receive a fee and recover disbursements for a service provided to the estate or person by a legal practitioner employed by State Trustees or who shares his or her remuneration with State Trustees if the service is reasonably required and the fee and disbursements are fair and reasonable.
S. 14(3) inserted by No. 18/2005 s. 18(Sch. 1 item 101), amended by No. 17/2014 s. 160(Sch. 2 item 91).
(3) In this section, legal practitioner means an Australian legal practitioner.
15 Government guarantee
(1) Subject to subsection (2), the due satisfaction of all sums required to discharge any liability of State Trustees incurred in respect of its management of estates arising from negligence, wilful default or fraud on the part of State Trustees or any of its officers, employees, servants or agents including, without limitation, the payment of expenses of enforcing or obtaining or endeavouring to enforce or obtain such satisfaction, is guaranteed by the Government of Victoria.
(2) Subsection (1) only applies—
(a) to the extent that—
(i) the proceeds under any contract of insurance entered into by or on behalf of State Trustees; and
(ii) the assets of State Trustees other than those held by State Trustees as trustee of any estate—
are not sufficient to satisfy the liability; and
(b) to a liability incurred at a time when State Trustees is a company of a kind in respect of which a declaration could be made under section 66 of the State Owned Enterprises Act 1992.
(3) Any sums required to fulfil any liability arising under the guarantee provided in subsection (1) must be paid out of the Consolidated Fund (which is hereby to the necessary extent appropriated accordingly).
(4) The guarantee provided in subsection (1) may be enforced under Part II of the Crown Proceedings Act 1958.
(5) The Treasurer may, after consultation with the board of directors of State Trustees, require State Trustees to pay a reasonable fee for the guarantee provided in subsection (1).
(6) Any sums received or recovered from State Trustees or otherwise in respect of any sums paid under the guarantee, and any fees received from State Trustees under subsection (5) must be paid into the Consolidated Fund.
16 Preservation of existing rights
(1) Despite anything in section 15, section 14 of the State Trust Corporation of Victoria Act 1987 as in force immediately before the commencement of section 24 continues to apply to any liability of State Trustees or State Trust which arose prior to the commencement of this section as if that Act had not been repealed and the Consolidated Fund is hereby to the necessary extent to discharge that liability appropriated accordingly.
(2) State Trustees must maintain Common Fund No. 1 in accordance with Part 5 of the State Trust Corporation of Victoria Act 1987 as in force immediately before the commencement of section 24 as if that Act had not been repealed until all moneys in the fund at the commencement of this section have been properly applied.
(3) If at any time Common Fund No. 1 is insufficient to meet any proper claim on it the amount of that claim to the extent that it cannot be met from the fund must be paid out of the Consolidated Fund (which is hereby to the necessary extent appropriated accordingly).
(4) In this section Common Fund No. 1 has the meaning given in Part 5 of the State Trust Corporation of Victoria Act 1987 as in force immediately before the commencement of section 24.
17 Secrecy provision
S. 17(1) amended by No. 13/2019 s. 221(Sch. 1 item 50.5).
(1) This section applies only in relation to State Trustees' administration of the estate of a represented person.
S. 17(2) amended by No. 13/2019 s. 221(Sch. 1 item 50.5).
(2) Unless subsection (3) applies, a person who is or has been a director, member, officer or employee of State Trustees, must not, except to the extent necessary to perform any official duties, or to perform or exercise any function or power, in relation to its administration of the estate of a represented person, either directly or indirectly, make a record of, or divulge or communicate to any person, any information that is or was acquired by the person by reason of being or having been so appointed, or make use of information, for any purpose other than the performance of official duties or the performance or exercise of that function or power.
10 penalty units.
(3) Subsection (2) does not preclude a person from—
(a) producing a document to a court in the course of any proceedings; or
(b) divulging or communicating to a court in the course of any proceedings any matter or thing coming under the notice of the person in the performance of official duties or in the performance of a function or the exercise of a power referred to in that subsection; or
(c) producing a document or divulging or communicating information that is required or permitted by any Act to be produced, divulged or communicated, as the case may be if, where the document or information relates to the personal affairs of another person, that other person has given consent in writing.
18 Protection of persons dealing with State Trustees
A person is not to be concerned to see or inquire whether—
(a) any acts, dealings or transactions by or with State Trustees or any officer or agent of State Trustees are or are not within the powers of State Trustees; or
(b) State Trustees has assumed the management or control of an estate or property in accordance with this or any other Act.
19 Certificate issued by State Trustees
A certificate issued by State Trustees which—
(a) certifies that—
S. 19(a)(i) amended by No. 52/1998 s. 311(Sch. 1 item 85.2), substituted by No. 13/2019 s. 221(Sch. 1 item 50.6).
(i) an administration order made under the Guardianship and Administration Act 2019 appointing State Trustees as administrator for a person is in force; or
S. 19(a)(ii) repealed by No. 13/2019 s. 221(Sch. 1 item 50.7).
(iii) State Trustees is, whether by original appointment or subsequent authorisation, entitled to act as the personal representative, and administer the estate, of any deceased person; and
(b) specifies the date—
S. 19(b)(i) amended by No. 52/1998 s. 311(Sch. 1 item 85.3).
(i) of the relevant order; or
S. 19(b)(ii) repealed by No. 13/2019 s. 221(Sch. 1 item 50.7).
(iii) of the grant of probate or letters of administration authorising State Trustees to act as executor and trustee or administrator—
is, until the contrary is proved, for all purposes sufficient evidence of the facts so certified and stated.
20 Part IX of Trustee Companies Act 1984 not to apply
Part IX of the Trustee Companies Act 1984 does not apply to State Trustees for so long as it remains a company of a kind in respect of which a declaration could be made under section 66 of the State Owned Enterprises Act 1992.
S. 20A inserted by No. 17/2010 s. 20, amended by No. 76/2012 s. 28 (ILA s. 39B(1)).
20A Continued application of the Trustee Companies Act 1984
(1) Despite the commencement of the Trustee Companies Legislation Amendment Act 2010, the Trustee Companies Act 1984, as in force immediately before that commencement, continues to apply in respect of State Trustees.
S. 20A(2) inserted by No. 76/2012 s. 28.
(2) Despite subsection (1), sections 26AA, 26A and 26B of the Trustee Companies Act 1984 apply in respect of State Trustees.
S. 20A(3) inserted by No. 23/2016 s. 45.
(3) Despite subsection (1), section 52 of the Trustee Companies Act 1984, as in force immediately before the commencement of the Trustee Companies Legislation Amendment Act 2010, does not apply in respect of State Trustees.
Part 4—Community service obligations
21 Minister responsible for access to services
(1) The Minister is responsible for ensuring that members of the public, including children, have access to services relating to the management and administration of their estates and property including, without limitation—
(a) trustee, administration and will-making services; and
(b) services in relation to the administration of funds payable to children; and
(c) services referred to in section 13.
(2) This Part only applies to members of the public, including children, who in the opinion of the Minister do not have the resources to obtain the services referred to in subsection (1) for themselves.
22 Provision of services
The Minister is to provide the services referred to in section 21, out of money available, under an agreement entered into with State Trustees or, if the Minister so determines, with another trustee company, person or body.
23 Agreements with State Trustees and other trustee companies
Despite anything in the Trustee Companies Act 1984 or in Part 3, State Trustees or another trustee company may charge and receive fees, commissions and remuneration and recover disbursements under an agreement entered into with the Minister under section 22 and under an agreement with any person or body entered into as a consequence of that agreement.
Part 5—Repeal of State Trust Corporation of Victoria Act 1987
S. 24
repealed by No. 17/2010 s. 21.
25 Transitional
(1) On the commencement of this section—
(a) all property, rights and assets of State Trust are by virtue of this Act vested in State Trustees;
(b) all liabilities of State Trust are by virtue of this Act liabilities of State Trustees;
(c) State Trustees is the successor in law of State Trust.
(2) Without limiting the generality of subsection (1)(c), where, immediately before the commencement of this section—
(a) State Trust was acting in any capacity State Trustees may, from the commencement of this section, act in that capacity;
(b) proceedings to which State Trust was a party were pending or existing in any court or tribunal, from the commencement of this section State Trustees is substituted for State Trust as a party to the proceedings and has the same rights in the proceedings as State Trust had.
S. 25A inserted by No. 20/1999 s. 3, repealed by No. 17/2010 s. 21.
26 Construction of references
Any reference to the State Trust, State Trust Corporation of Victoria, Public Trustee, Public Trustee for Victoria or Public Trust Office in any Act (except this Act), subordinate instrument, order, will, codicil, instrument, trust deed, contract or other document whatsoever is to be construed as a reference to State Trustees.
Ss 27, 28 repealed by No. 17/2010 s. 21.
S. 29 amended by No. 44/2001 s. 3(Sch. item 105.2), repealed by No. 17/2010 s. 21.
S. 30
repealed by No. 17/2010 s. 21.
Pts 6–8 (Headings and ss 31–42) repealed by No. 20/1999 s. 4.
Sch.
repealed by No. 20/1999 s. 4.
Endnotes
1 General information
See www.legislation.vic.gov.au for Victorian Bills, Acts and current Versions of legislation and up-to-date legislative information.
Minister's second reading speech—
Legislative Assembly: 5 May 1994
Legislative Council: 24 May 1994
The long title for the Bill for this Act was "A Bill relating to the conversion of the State Trust Corporation of Victoria to a State Owned Company, to repeal the State Trust Corporation of Victoria Act 1987, to amend the Guardianship and Administration Board Act 1986, the Administration and Probate Act 1958 and certain other Acts and for other purposes.".
Constitution Act 1975:
Section 85(5) statement:
Legislative Assembly: 5 May 1994
Legislative Council: 24 May 1994
Absolute majorities:
Legislative Assembly: 19 May 1994
Legislative Council: 26 May 1994
The State Trustees (State Owned Company) Act 1994 was assented to on 7 June 1994 and came into operation as follows:
Part 1 (sections 1–3), section 27 on 7 June 1994: section 2(1); rest of Act on 1 July 1994: Special Gazette (No. 36) 23 June 1994 page 1.
INTERPRETATION OF LEGISLATION ACT 1984 (ILA)
Style changes
Section 54A of the ILA authorises the making of the style changes set out in Schedule 1 to that Act.
References to ILA s. 39B
Sidenotes which cite ILA s. 39B refer to section 39B of the ILA which provides that where an undivided section or clause of a Schedule is amended by the insertion of one or more subsections or subclauses, the original section or clause becomes subsection or subclause (1) and is amended by the insertion of the expression "(1)" at the beginning of the original section or clause.
Interpretation
As from 1 January 2001, amendments to section 36 of the ILA have the following effects:
• Headings
All headings included in an Act which is passed on or after 1 January 2001 form part of that Act. Any heading inserted in an Act which was passed before 1 January 2001, by an Act passed on or after 1 January 2001, forms part of that Act. This includes headings to Parts, Divisions or Subdivisions in a Schedule; sections; clauses; items; tables; columns; examples; diagrams; notes or forms. See section 36(1A)(2A).
• Examples, diagrams or notes
All examples, diagrams or notes included in an Act which is passed on or after 1 January 2001 form part of that Act. Any examples, diagrams or notes inserted in an Act which was passed before 1 January 2001, by an Act passed on or after 1 January 2001, form part of that Act. See section 36(3A).
• Punctuation
All punctuation included in an Act which is passed on or after 1 January 2001 forms part of that Act. Any punctuation inserted in an Act which was passed before 1 January 2001, by an Act passed on or after 1 January 2001, forms part of that Act. See section 36(3B).
• Provision numbers
All provision numbers included in an Act form part of that Act, whether inserted in the Act before, on or after 1 January 2001. Provision numbers include section numbers, subsection numbers, paragraphs and subparagraphs. See section 36(3C).
• Location of "legislative items"
A "legislative item" is a penalty, an example or a note. As from 13 October 2004, a legislative item relating to a provision of an Act is taken to be at the foot of that provision even if it is preceded or followed by another legislative item that relates to that provision. For example, if a penalty at the foot of a provision is followed by a note, both of these legislative items will be regarded as being at the foot of that provision. See section 36B.
• Other material
Any explanatory memorandum, table of provisions, endnotes, index and other material printed after the Endnotes does not form part of an Act.
See section 36(3)(3D)(3E).
2 Table of Amendments
This publication incorporates amendments made to the State Trustees (State Owned Company) Act 1994 by Acts and subordinate instruments.