31Trustee's power of appropriation[[7]](#endnote-8)

31 Trustee's power of appropriation[[7]](#endnote-8) (1) A trustee may appropriate any part of the property subject to the trust, or any part of the estate of a testator or intestate, in its actual condition or state of investment, in or towards satisfaction of any legacy, 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: Provided that— (a) the appropriation shall not be made so as to affect prejudicially any specific gift; (b) if any consent is required by this section the appropriation shall be made with such consent; (c) in making the appropriation the trustee shall 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 the appropriation, or as to whom it is uncertain at that time whether he is living or dead, and to the rights of any other person whose consent is not required by this section. (2) The power of appropriation conferred by this section shall extend and apply to— (a) property over which a testator exercises a general power of appointment; (b) setting apart a fund to answer an annuity by means of the income of the fund or otherwise; (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— (a) may ascertain and fix the value of the respective parts of the property or estate subject to the trust and the liabilities to which the property or estate is subject, as the trustee may think fit; and (b) shall for that purpose employ a person reasonably believed by the trustee to be a competent valuer in any case where such employment may be necessary. (4) When an appropriation is made pursuant to this section— (a) the appropriation shall bind all persons who are or may become interested in the property or estate, including persons whose consent is not required, persons who are not sui juris, and persons who are not yet ascertained; and (b) to the extent to which the appropriation is made in or towards satisfaction of any legacy share or interest, the rights to which any person is entitled in virtue of the legacy share or interest— (i) shall be restricted to the part of the property or estate so appropriated; and (ii) shall not extend to any other parts thereof. (5) Except as is otherwise provided by this section an appropriation of property, whether it is or is not an investment authorized by law or by the instrument (if any) creating the trust for the investment of money, shall not be made under this section for the benefit of a person absolutely and beneficially entitled in possession unless, if that person is of full age and capacity he consents in writing, or if he is not of full age and capacity, or if he is a person whom the trustee at the time of the appropriation has been unable to find or who cannot be ascertained, or as to whom it is uncertain whether he is living or dead, consent is given as provided by subsection (7) hereof. (6) Except as is otherwise provided in this section, an appropriation shall not be made thereunder in respect of any settled legacy share or interest, unless consent in writing thereto is given— (a) by the trustee thereof (if any) not being also the trustee making the appropriation; or (b) by the person for the time being entitled to the income provided he is of full age and capacity; or (c) in the manner provided in subsection (7) hereof. (7) If the person absolutely and beneficially entitled in possession or in the case of any settled legacy share or interest the person for the time being entitled to the income— S. 31(7)(a) amended by Nos 9075 s. 5(1), 9427 s. 5(Sch. 4 item 12). (a) is a minor—the consent may be given by his parents or parent with whom he resides or in whose custody he is (as the case may be) or by his testamentary or other guardian, or by the Court; (b) is incompetent to manage his own affairs or incapable of managing his own affairs—the consent may be given by any person having power by law to give the consent, or by the Court; (c) is a person whom the trustee has been unable at the time of the appropriation to find or who cannot be ascertained, or as to whom it is uncertain at that time whether he is living or dead—the consent may be given by the Court. S. 31(8) amended by Nos 9075 s. 5(1), 9427 s. 5(Sch. 4 item 12). (8) If the appropriation is of an investment authorized by law, or by the instrument (if any) creating the trust for the investment of money subject thereto, no consent shall be required— (a) on behalf of a minor, where there is no parent or guardian; (b) on behalf of a person who is incompetent to manage his own affairs or incapable of managing his own affairs, where there is no person having power by the law to give the consent; or (c) on behalf of a person whom the trustee has been unable at the time of the appropriation to find or who cannot be ascertained, or as to whom it is uncertain at that time whether he is living or dead— save that if there is a trustee of the legacy share or interest his consent shall be required. (9) Notwithstanding anything contained in any other subsection of this section, where a fund is set apart to answer an annuity (not being an annuity in respect of which the trustee is liable to pay or provide, in addition to the annuity, any moneys by way of tax or otherwise) by means of the income of the fund or otherwise, the consent of the annuitant shall not be necessary if— (a) the fund at the time of appropriation would be sufficient, if it were invested in securities of the Government of the Commonwealth of Australia at par, to provide an income exceeding the annuity by at least twenty per centum thereof; and (b) the fund is actually invested 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 investments which would have been applicable thereto 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 is not the trustee making the appropriation, from the obligation to obtain payment or transfer of the property appropriated, if or when the same is so payable or transferable. (11) The trustee may make any conveyance or assent which may be necessary for giving effect to an appropriation under this section. (12) Any appropriation or disposition of property— (a) made in purported exercise of the powers conferred by this section; or (b) in respect of which the trustee making the appropriation or disposition states in writing that the appropriation or disposition has been made in exercise of those powers— shall, in favour of a person who in good faith and for valuable consideration purchases, or takes a lease or mortgage of, or otherwise takes or deals for, the property or any interest in it, be deemed to have been made in accordance with the requirements of this section, and after all requisite consents (if any) have been given. The protection afforded by this subsection shall extend to the Registrar of Titles when registering titles and to every other person registering or certifying title. (13) In this section ***settled legacy share or interest*** means— (a) a legacy share or interest settled by the trust instrument (if any) or by any other instrument; (b) an annuity, whether or not at the time of appropriation any person is absolutely and beneficially entitled to the income; and (c) any legacy share or interest to which at the time of appropriation no person is absolutely and beneficially entitled in possession. (14) This section shall not prejudice any other power of appropriation conferred by law or by the instrument (if any) creating the trust, and shall take effect with any extended powers conferred by that instrument; and the powers conferred by this section shall be in addition to any other power.