46 Appropriation
(1) A trustee may appropriate any part of the property subject to the trust
or of the real or personal estate of a testator or intestate in its actual
condition or state of investment in or towards satisfaction of a legacy
or of any share or interest in the property or estate, whether settled or
not, as to the trustee may seem just and reasonable, according to the
respective rights of the persons interested in the property or estate,
but—
(a) the appropriation shall not be made so as to affect prejudicially
any specific gift, devise or bequest; and
(b) the appropriation shall be made with the consent (if any)
required by this section; and
(c) in making the appropriation the trustee shall have regard to the
rights of any person who may afterwards come into existence or
who cannot be found or ascertained at the time of the
appropriation or as to whom it is uncertain at that time whether
he or she is living or dead, and of any other person whose
consent is not required by this section.
(2) The power of appropriation conferred by this section applies to—
(a) property over which a testator exercises a general power of
appointment; and
(b) setting apart a fund to answer an annuity by means of an income
of the fund or otherwise, provided that at the time of
appropriation the fund would be sufficient, if it were invested in
government securities of the Commonwealth at par, to provide
an income exceeding the annuity by at least 15%; and
(c) setting apart a sum of money in or towards the satisfaction of a
legacy share or interest.
(3) For the purpose of an appropriation under this section, the trustee may
ascertain and fix the value of the respective parts of the property or
estate and the liabilities to which the property or estate is subject as
the trustee may think fit, and shall for that purpose employ a duly
qualified valuer in any case where such employment may be
necessary.
(4) An appropriation made under this section shall bind all persons
interested in the property or estate, including the persons whose
consent is not required, and to the extent to which the appropriation
is made in or towards satisfaction of the legacy, share or interest, the
rights to which any person is entitled in virtue of the legacy, share or
interest shall be restricted to the part of the property or estate so
appropriated and shall not extend to any other part of it that may be
dealt with or disposed of freed from any such rights.
(5) An appropriation of property whether it is or is not an investment
authorised by law or by the trust instrument for the investment of
money subject to it, shall not, except as otherwise provided by this
section, be made for the benefit of a person absolutely and
beneficially entitled in possession, unless the person is not a person
with a legal disability and consents in writing.
(6) An appropriation must not, except as otherwise provided in this
section, be made in relation to a settled legacy, share or interest,
unless 1 of the following consents in writing:
(a) the trustee (if any) of the legacy, share or interest, if the trustee
is not making the appropriation;
(b) the person who is, for the time being, entitled to the income.
(7) If the person whose consent is required under subsection (5) or (6),
not being the trustee of a settled legacy share or interest—
(a) is a child—the consent may be given on his or her behalf by his
or her parents or parent with whom he or she resides or in whose
custody he or she is, as the case may be, or by his or her
testamentary or other guardian, or if there is no such parent or
guardian, by the Supreme Court; or
(b) is a person with a mental disability—the consent may be given
on his or her behalf—
(i) by the guardian of the person, or the manager of the
person’s property, under the Guardianship and
Management of Property Act 1991; or
(ii) if there is no such guardian or manager—by the Supreme
Court; or
(c) is a person who cannot be found or ascertained, or as to whom
it is uncertain whether he or she is living or dead—the consent
may be given on his or her behalf by the Supreme Court.
(8) If the appropriation is of an investment authorised by law or by the
trust instrument, no consent except that of the trustee (if any) of a
settled legacy share or interest shall be required on behalf of—
(a) a child if there is no parent or guardian; or
(b) a person with a mental disability if there is neither a guardian of
the person nor a manager of the person’s property under the
Guardianship and Management of Property Act 1991; or
(c) a person who may come into existence after the time of
appropriation, or who cannot be found or ascertained at that
time, or as to whom it is uncertain at that time whether he or she
is living or dead.
(9) Notwithstanding subsection (1) (b), (5) or (7), the consent of the
annuitant shall not be necessary in any case in which the trustee, after
having set apart a fund to answer the annuity, which fund at the time
of appropriation would be sufficient, if it were invested in
government securities of the Commonwealth at par, to provide an
income exceeding the annuity by at least 20%, has actually invested
the fund in such securities.
(10) Where an appropriation is made under this section in respect of a
settled legacy, share or interest, the property appropriated shall be
subject to all trusts for sale and powers of leasing, disposition,
management and varying investment that would have applied to the
property or to the legacy, share or interest in respect of which the
appropriation is made, if no such appropriation had been made,
provided that nothing in this section shall relieve the trustee of the
settled legacy, share or interest, where he or she is not the trustee
making the appropriation, from the obligation to obtain payment or
transfer of the property appropriated, if it is so payable or transferable.
(11) Where the exercise of any power of sale conferred on a legal
representative by the Administration and Probate Act 1929,
section 50 is subject to any condition or to the leave of the Supreme
Court being obtained, the legal representative shall not be entitled to
appropriate any part of the real estate under the powers conferred by
this section, except with the leave of the court.
(12) The trustee may make any conveyance or assent which may be
necessary for giving effect to an appropriation under this section.
(13) Any appropriation or disposition of property made in purported
exercise of the powers conferred by this section shall, in favour of an
honest purchaser or the registrar-general, be taken to have been made
in accordance with the requirements of this section, and after all
requisite consents (if any) have been given.
(14) In this section:
settled, in relation to a legacy, share or interest, means a legacy, share
or interest settled by the trust instrument or another instrument, and
includes a legacy, share or interest to which a person is not absolutely
entitled in possession on the day the appropriation is made.
(15) This section shall not prejudice any other power of appropriation
conferred by law or by the trust instrument, and the powers conferred
by this section shall be in addition to any such power.
(16) This section applies to a trust except so far as the contrary intention