What it does
The Trustee Act 1925 is the principal statute governing the appointment, powers, duties and liabilities of trustees in New South Wales. Its central purpose is to supply a comprehensive default code that applies to express, implied and constructive trusts (s 5 definition of “trust”) unless a contrary intention appears in the trust instrument (see, for example, the repeated formula in ss 6(13), 8(8), 14(1), 14A(1), 26(5), 36(7), 41(4), 43(10), 44(7), 45(9), 46(16), 49(4), 53(6), 64(8) and 81(4)).
Part 1A and s 4 deal with preliminary matters, including the Act’s citation, commencement on 1 March 1926, repeal of earlier legislation (s 3), and the status of notes (s 4). The interpretation section (s 5) supplies more than 30 defined terms that permeate the balance of the statute. These range from technical conveyancing concepts (“contingent right”, “convey”, “land”, “mortgage”) to modern entities (“NSW Trustee”, “trustee company”) and protective categories (“incapable person”, “minor”).
Division 1 of Part 2 (ss 6–13) regulates changes in the trusteeship. Section 6 permits appointment of a new trustee by registered deed in enumerated circumstances (death, prolonged absence from New South Wales, desire to retire, unfitness, incapacity, removal under the trust instrument, or corporate dissolution). The section contains 15 subsections dealing with who may appoint, limits on numbers (generally four), discharge of retiring trustees, and preservation of the appointor’s powers. Section 7 allows addition of trustees, s 8 permits retirement without replacement, and s 9 provides for automatic vesting of trust property on appointment or retirement, subject to exceptions for Torrens land (s 9(3)), Crown land (s 9(3A)), mortgages (s 9(4)), book-entry securities (s 9(5)), and leases with assignment restrictions (s 9(6)). Sections 10–13 address renunciation of probate, conversion of executors into trustees, registration of instruments, and protection of purchasers relying on recitals.