Trustee Companies Act 1947 (ACT)

Mechanically, the Trustee Companies Act 1947 gives licensed trustee companies (as defined, a trustee company is a licensed trustee company within the meaning of the Corporations Act, ch 5D; dict) statutory capacity and procedural routes to act in roles traditionally filled by individuals: executor, administrator (with or without the will annexed), trustee, receiver, guardian of a child’s estate, and attorney. The Act:

permits a trustee company named in a will or codicil to apply for and obtain probate and to perform executor duties (s 4);
allows persons entitled to apply for probate or letters of administration to join with, or authorise, a trustee company to apply for probate or administration in a range of scenarios (ss 5-8) and expressly confirms the company’s capacity to perform all acts and duties of the office once probate or administration is granted (s 8A);
allows the Supreme Court to accept an affidavit from a trustee company’s managing director or manager in place of an affidavit otherwise required from an applicant for probate or administration (s 9);
makes the paid and unpaid capital and all other assets of a trustee company liable for the proper administration of estates when probate or administration is granted to the company (s 10);
permits appointment of a trustee company as trustee, receiver or guardian by any court or person able to make such an appointment, and confirms that a trustee company can act as sole trustee in many cases except where expressly forbidden by the instrument creating the trust (s 11);
authorises a trustee company to act under a power of attorney when appointed attorney, with the company’s managing director, manager, or two directors authorised to exercise the powers (s 12), subject to the proviso that powers not legally available to private individuals cannot be conferred on the company (s 12(2));

Australian Capital Territory Trustee Companies Act 1947 A1947-15 Republication No 14 Effective: 14 October 2015 Republication date: 14 October 2015 Last amendment made by A2015-33 Authorised by the ACT Parliamentary Counsel

Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au About this republication The republished law This is a republication of the Trustee Companies Act 1947 (including any amendment made under the Legislation Act 2001, part 11.3 (Editorial changes)) as in force on 14 October 2015. It also includes any commencement, amendment, repeal or expiry affecting this republished law to 14 October 2015. 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 includes 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).

R14 14/10/15 Trustee Companies Act 1947 Effective: 14/10/15 contents 1 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au Australian Capital Territory Trustee Companies Act 1947 Contents Page 1 Name of Act 2 2 Dictionary 2 3 Notes 2 4 Company may act as executor and obtain probate 2 5 Authorisation given to trustee company to act by person entitled to probate 3 6 Authorisation given to trustee company to act by 1 of several executors 3 7 Authorisation given to trustee company to act by person entitled to administration with will annexed 4 8 Authorisation given to trustee company to act by person entitled to administration on intestacy 5 8A Capacity of trustee company to act 5 9 Court to act on affidavit of managing director or manager in applications for probate or administration 6 10 Assets of company to be liable for proper administration of estates 6

Contents Page contents 2 Trustee Companies Act 1947 Effective: 14/10/15 R14 14/10/15 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au 11 Company may be appointed trustee, receiver or guardian of estate 6 12 Company may act under power of attorney by managing director, manager or 2 directors 7 13 Company may be appointed to act as temporary executor or administrator 8 14 Executor or administrator may appoint company to discharge duties 8 15 Application for consent under s 14 9 16 Managing director or manager may attend on behalf of company 10 17 Manager and directors personally responsible to court 10 19 Trustee company to be subject to same duties as individual 11 19A Company may hold property as joint tenant 11 20 Company may be removed from office by court and provisions for relief against company or directors 11 23 Voluntary winding-up of company or disposal of shares may be restrained by Supreme Court 12 32 Act not to preclude other companies from applying for similar powers to those given by this Act 12 33 Testators may appoint own lawyers 13 34B Transfer determinations 13 35 Regulation-making power 16 Dictionary 17 Endnotes 1 About the endnotes 18 2 Abbreviation key 18 3 Legislation history 19 4 Amendment history 24 5 Earlier republications 29

R14 14/10/15 Trustee Companies Act 1947 Effective: 14/10/15 page 1 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au Australian Capital Territory Trustee Companies Act 1947 An Act relating to trustee companies

Section 1 page 2 Trustee Companies Act 1947 Effective: 14/10/15 R14 14/10/15 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au 1 Name of Act This Act is the Trustee Companies Act 1947. 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 ‘books—see the Corporations Act, section 9.’ means that the term ‘books’ is defined in that section 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)). 3 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. 4 Company may act as executor and obtain probate If a trustee company is named expressly or by implication as executor in the last will and testament or in the codicil to the last will and testament of any testator, that company may act as executor, and may apply for and obtain probate of the will of the testator and perform and discharge all the acts and duties of an executor.

Section 5 R14 14/10/15 Trustee Companies Act 1947 Effective: 14/10/15 page 3 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au 5 Authorisation given to trustee company to act by person entitled to probate (1) If a person is named expressly or by implication as executor of the will of a deceased person and is entitled to apply for and obtain probate of the will without reserving leave to any other person to apply for probate, that firstmentioned person may— (a) join with a trustee company in an application for a grant of probate of the will to that person and the trustee company jointly; or (b) instead of applying personally, authorise a trustee company to apply for a grant of letters of administration with the will annexed. (2) If an application is made under subsection (1), the Supreme Court may grant letters of administration with the will annexed in accordance with the application unless the testator by his or her will has expressed the desire that— (a) the office of executor should not be delegated; or (b) a trustee company or that particular trustee company should not act in the trusts of the will. 6 Authorisation given to trustee company to act by 1 of several executors (1) If a person is named expressly or by implication as executor of the will of a deceased person and is entitled to apply for and obtain probate of the will jointly with any other person, that firstmentioned person may— (a) join with a trustee company and any other person entitled to apply for probate in an application for a grant of probate of the will to that person, the trustee company and any other such person jointly; or

Section 7 page 4 Trustee Companies Act 1947 Effective: 14/10/15 R14 14/10/15 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au (b) instead of applying personally, authorise a trustee company to apply for a grant of probate of the will, either— (i) alone, with leave reserved for any person to come in and prove; or (ii) jointly with any other person entitled to apply for probate; in the same way as if the trustee company had been originally named as an executor of the will in addition to or in the place of that firstmentioned person. (2) If an application is made under subsection (1), the Supreme Court may grant probate of the will in accordance with the application unless the testator by his or her will has expressed the desire that— (a) the office of executor should not be delegated; or (b) a trustee company or that particular trustee company should not act in the trusts of the will. 7 Authorisation given to trustee company to act by person entitled to administration with will annexed (1) If a person is entitled to apply for and obtain a grant of letters of administration with the will annexed of the estate of a deceased person, the person may— (a) join with a trustee company in an application for a grant of letters of administration with the will annexed to the person and the trustee company jointly; or (b) instead of applying personally, authorise a trustee company to apply for a grant of letters of administration with the will annexed.

Section 8 R14 14/10/15 Trustee Companies Act 1947 Effective: 14/10/15 page 5 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au (2) If an application is made under subsection (1), the Supreme Court may grant letters of administration with the will annexed in accordance with the application unless the testator by his or her will has expressed the desire that the office of administrator should not be held by a trustee company or that particular trustee company. 8 Authorisation given to trustee company to act by person entitled to administration on intestacy (1) If a person is entitled to obtain administration of the estate of a person who died intestate, the person may— (a) join with a trustee company in an application for a grant of letters of administration of the estate to the person and the trustee company jointly; or (b) instead of applying personally, authorise a trustee company to apply for a grant of letters of administration of the estate. (2) If an application is made under subsection (1), the Supreme Court may grant letters of administration of the estate in accordance with the application. 8A Capacity of trustee company to act If— (a) administration of an estate with or without the will annexed; or (b) probate of a will; is granted to a trustee company, either alone or jointly with another person, the trustee company may perform and discharge all the acts and duties of administrator, administrator with the will annexed or executor, as the case may be.

Section 9 page 6 Trustee Companies Act 1947 Effective: 14/10/15 R14 14/10/15 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au 9 Court to act on affidavit of managing director or manager in applications for probate or administration If a trustee company is empowered under this Act to apply for probate or for letters of administration, the Supreme Court may receive and act on an affidavit made by the managing director or manager of the company in place of any affidavit required to be made by persons making application for probate or for letters of administration. 10 Assets of company to be liable for proper administration of estates (1) This section applies if probate or letters of administration are granted to a trustee company in relation to an estate. (2) The paid and unpaid capital and all other assets of the trustee company are liable for the proper administration of the estate. 11 Company may be appointed trustee, receiver or guardian of estate (1) If any court or person has power to appoint any person as— (a) trustee; or (b) receiver; or (c) guardian of the estate of a child; a trustee company may be so appointed. (2) Subject to this section, a trustee company may be appointed, or may continue to act, as sole trustee in all cases notwithstanding that it is provided by the terms of the instrument (if any) creating the trust or of any power or otherwise that there shall be more than 1 trustee to perform the trust.

Section 12 R14 14/10/15 Trustee Companies Act 1947 Effective: 14/10/15 page 7 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au (3) If a trustee company and 1 or more individuals are co-trustees, any 1 or more of those individuals may retire, and the company shall, for the purposes of any law relating to the retirement of trustees and the vesting of the trust property, be deemed to be equivalent to 2 trustees. (4) A trustee company shall not be appointed in any case in which the instrument creating the trust or power forbids the appointment of a trustee company or of that particular trustee company. (5) A trustee company shall not be appointed or be entitled to act as sole trustee in any case in which the instrument creating the trust or power expressly provides that there shall be another trustee in addition to a trustee company or that a trustee company or that particular trustee company shall not be appointed or act as sole trustee. (6) If a trustee company is appointed or acts in any of the offices mentioned in subsection (1), all the capital of the company, both paid and unpaid, and all other assets of the company and the directors, manager, and assistant manager and their respective estates shall be liable for the proper discharge of the duties of that office. (7) No bond, recognisance, or other security for the proper discharge of such duties shall be required to be given by or on behalf of a trustee company. 12 Company may act under power of attorney by managing director, manager or 2 directors (1) A trustee company may act under any power of attorney by which the trustee company is appointed attorney by any person, and all the powers given to the trustee company by any such power of attorney may be exercised and carried into execution by the managing director or manager or 2 of the directors of the trustee company, but in all cases the capital both paid and unpaid and all other assets of

Section 13 page 8 Trustee Companies Act 1947 Effective: 14/10/15 R14 14/10/15 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au the trustee company shall be liable for the due execution of the powers so given to the trustee company. (2) This section shall not authorise any person to give any power to a trustee company that cannot be legally given to a private individual. 13 Company may be appointed to act as temporary executor or administrator An executor or administrator or trustee may appoint a trustee company to act as executor or administrator or trustee in his or her place, and a trustee company if appointed by deed filed in accordance with any law providing for the filing of powers of attorney may act within the scope of the authority given to it as effectually as the executor or administrator or trustee could have acted and may exercise all discretionary and other powers delegated by the principal as fully as the principal could have exercised them, and after the filing of the deed and before the registration of the death of the principal or of the revocation of the authority given by the principal every act of the trustee company within the scope of the authority given shall, in favour of any person who deals with the trustee company, bona fide, and without notice of the death of the principal or of his or her revocation of the authority, be valid and effectual notwithstanding the revocation by, or death of, the principal. 14 Executor or administrator may appoint company to discharge duties (1) An executor or administrator acting under any probate or letters of administration, whether granted before or after the date when this Act comes into operation, or a trustee, receiver or guardian of a child may, with the consent of the Supreme Court, appoint a trustee company to exercise and discharge all the acts and duties of that executor, administrator, trustee, receiver or guardian.

Section 15 R14 14/10/15 Trustee Companies Act 1947 Effective: 14/10/15 page 9 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au (2) The trustee company may, on being so appointed, exercise and discharge all the acts and duties of the executor, administrator, trustee, receiver or guardian. (3) In every such case, all the capital both paid and unpaid and all other assets of the trustee company shall be liable for the proper discharge, from the date of the appointment, of the acts and duties of the executor, administrator, trustee, receiver or guardian, and the executor, administrator, trustee, receiver or guardian shall be released from liability in relation to all acts done by, or omitted to be done by, the trustee company acting under an appointment under this section. 15 Application for consent under s 14 (1) A person who intends to apply for consent under section 14 must give public notice, at least 7 days before the day the application is made, of— (a) the intention to apply; and (b) the intended date of the application. Note Public notice means notice on an ACT government website or in a daily newspaper circulating in the ACT (see Legislation Act, dict, pt 1). (2) The Supreme Court may require any person entitled to the immediate receipt of any of the income or corpus of the estate in relation to which the application is made to be served with notice of the application. (3) The costs of the application shall be in the discretion of the Supreme Court and may be ordered to be paid out of the estate. (4) The Supreme Court shall not give consent in the case of any will in which the testator has expressed his or her wish that the trusts of the will should not be delegated or that a trustee company or the particular trustee company in relation to which the application is made should not act in the trusts of the will.

Section 16 page 10 Trustee Companies Act 1947 Effective: 14/10/15 R14 14/10/15 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au 16 Managing director or manager may attend on behalf of company If the personal attendance of an executor, administrator, trustee, receiver or guardian is required, a trustee company may attend in the person of its managing director or manager and the personal duties of executor, administrator, trustee, receiver or guardian may be discharged on behalf of the company by the managing director or manager. 17 Manager and directors personally responsible to court (1) If a trustee company obtains probate or letters of administration or is appointed and acts as trustee, receiver or guardian, the manager and directors shall be individually and collectively in their own proper persons responsible to the Supreme Court, and shall in their own proper persons be liable, by process of attachment, commitment for contempt or by other process, to all courts having jurisdiction in that behalf for the proper discharge of their duties and for obedience to the rules, orders and decrees of those courts in the same way and to the same extent as if the manager and directors had personally obtained probate or letters of administration and had acted as executor, administrator, trustee, receiver or guardian. (2) Notwithstanding anything contained in subsection (1), the capital, both paid and unpaid, and all the assets of the company shall remain liable for any pecuniary loss that is occasioned or that happens through the imperfect or improper discharge, or through the neglect of the trustee company concerned, or of any of its officers, of any act or duty in relation to any office, appointment or engagement held or entered on by the company.

Section 19 R14 14/10/15 Trustee Companies Act 1947 Effective: 14/10/15 page 11 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au 19 Trustee company to be subject to same duties as individual (1) A trustee company shall, subject to the provisions of this Act, in every case in which it is appointed or acts as an executor, administrator, trustee, receiver or guardian, in addition to the liabilities and restrictions imposed by this Act be subject to the same respective rights, duties and obligations to which an individual acting as executor, administrator, trustee, receiver or guardian would be subject. (2) If any individual acting in any such capacity would be liable in his or her own proper person to attachment, commitment or other process, the managers and directors of a trustee company shall, if the company is acting in any of those capacities, be liable each for his or her own individual act and not further or otherwise in his or her own proper person to attachment, commitment or other process. 19A Company may hold property as joint tenant (1) A trustee company is capable of acquiring and holding property as a joint tenant with an individual in the same way as an individual may acquire and hold property as a joint tenant. (2) If a trustee company that is a joint tenant of property is dissolved, the property devolves on the other joint tenant. 20 Company may be removed from office by court and provisions for relief against company or directors (1) If a trustee company is appointed or acts as executor, administrator, trustee, receiver, guardian or attorney, it shall, in addition to the liabilities and restrictions imposed by this Act, be subject in all respects to the same control and liable to removal as a private individual who acts as executor, administrator, trustee, receiver, guardian or attorney.

Section 23 page 12 Trustee Companies Act 1947 Effective: 14/10/15 R14 14/10/15 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au (2) Any person claiming relief against a trustee company for any act done or assumed to be done, or in relation to any act omitted to be done, by the company, its directors or officers, under any of the powers given by this Act, may proceed in the Supreme Court against the trustee company or against any of its directors or officers. (3) In any such proceedings, the Supreme Court may make any order that it considers appropriate. 23 Voluntary winding-up of company or disposal of shares may be restrained by Supreme Court (1) So long as an estate in relation to which a trustee company is executor, administrator, trustee, receiver or guardian remains in whole or in part unadministered, the company shall not, except with the approval of the Supreme Court, be voluntarily wound up. (2) Any person interested in the estate or who has a claim in relation to the estate may apply to the Supreme Court to restrain a director or shareholder from disposing of any share that the person holds in the company or to restrain the winding-up voluntarily of the company, and the court may on any such application make any order that the court considers appropriate. 32 Act not to preclude other companies from applying for similar powers to those given by this Act Nothing in this Act shall entitle a trustee company to oppose the granting of any powers similar to those given to certain companies by this Act to any other company or to corporations generally, or to claim or to seek compensation in consequence of the powers being given to any other company or to corporations generally.

Section 33 R14 14/10/15 Trustee Companies Act 1947 Effective: 14/10/15 page 13 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au 33 Testators may appoint own lawyers (1) This section applies if— (a) a trustee company is the executor or administrator (or an executor or administrator) of the estate of a deceased person (the testator); and (b) the testator has directed by will that a particular lawyer conduct the legal business of the testator’s estate. (2) The lawyer is entitled to conduct that legal business as directed by the testator. (3) However— (a) the trustee company is not liable for any misconduct of the lawyer; and (b) the lawyer may be removed by order of the Supreme Court on the application of the trustee company or of anyone interested in the estate. (4) If a lawyer is removed under subsection (3) (b), the Supreme Court may appoint a lawyer nominated by the trustee company. (5) In this section: will includes codicil or other testamentary writing. misconduct includes negligence, misfeasance and nonfeasance. 34B Transfer determinations (1) This section applies if— (a) ASIC cancels the licence of a trustee company (the transferring company) and makes a determination under the Corporations Act, section 601WBA that there is to be a transfer of estate assets and liabilities from the transferring company to another licensed trustee company (the receiving company); and

Section 34B page 14 Trustee Companies Act 1947 Effective: 14/10/15 R14 14/10/15 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au (b) 4 ASIC issues a certificate of transfer under that Act, section 601WBG for the transfer; and (c) either the transferring company or the receiving company (or both) is registered in the ACT. Note 1 Under the Corporations Act, s 601WBA 5 ASIC may make— (a) a compulsory transfer determination if 5 ASIC has cancelled the licence of the transferring company; or (b) a voluntary transfer determination if the transferring company has applied for the determination. Note 2 A reference to a law (including a Cwlth Act) includes a reference to the Act as originally made and as amended (see Legislation Act, s 102). (2) When the certificate of transfer comes into force, the receiving company is taken to be the successor in law in relation to estate assets and liabilities of the transferring company, to the extent of the transfer. Note The Corporations Act, s 601WBG requires the certificate of transfer to state when it is to come into force. (3) Without limiting subsection (2)— (a) if the transfer is a total transfer—all of the assets and liabilities of the transferring company become assets and liabilities of the receiving company (without the need for any further conveyance, transfer, assignment or assurance); and (b) if the transfer is a partial transfer—the assets and liabilities listed as referred to in the Corporations Act, section 601WBG (2) (c) of the transferring company become assets and liabilities of the receiving company (without the need for any further conveyance, transfer, assignment or assurance); and (c) to the extent of the transfer—the duties, obligations, immunities, rights and privileges applying to the transferring company apply to the receiving company; and

Section 34B R14 14/10/15 Trustee Companies Act 1947 Effective: 14/10/15 page 15 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au (d) if the certificate includes provisions of the kind referred to in the Corporations Act, section 601WBG (3) specifying— (i) that particular things are to happen or are taken to be the case—those things are taken to happen, or to be the case, in accordance with those provisions; and (ii) a mechanism for determining things that are to happen or are taken to be the case—things determined in accordance with the mechanism are taken to happen, or to be the case, as determined in accordance with that mechanism. (4) The operation of this section is not to be regarded as— (a) a breach of contract or confidence or otherwise as a civil wrong; or (b) a breach of any instrument (including, without limitation, any provision prohibiting, restricting or regulating the assignment or transfer of assets or liabilities); or (c) an event of default under any contract or other instrument; or (d) giving rise to any remedy by a party to a contract or other instrument, or as causing or permitting the termination of, or exercise of rights under, any contract or other instrument. (5) In this section: ASIC means the Australian Securities and Investments Commission under the Australian Securities and Investments Commission Act 2001 (Cwlth).

Section 35 page 16 Trustee Companies Act 1947 Effective: 14/10/15 R14 14/10/15 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au 35 Regulation-making power (1) The Executive may make regulations for this Act. Note Regulations must be notified, and presented to the Legislative Assembly, under the Legislation Act 2001. (2) The regulations may prescribe offences for contraventions of the regulations and prescribe maximum penalties of not more than 10 penalty units for offences against the regulations.

Dictionary R14 14/10/15 Trustee Companies Act 1947 Effective: 14/10/15 page 17 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au 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  appoint  bank  corporation  Corporations Act  Executive  lawyer  Minister (see s 162)  person (see s 160)  Supreme Court. books—see the Corporations Act, section 9. first valuation day, in relation to a common trust fund, means the day determined under section 25B (6) for the purpose of valuing the fund. officer, of a trustee company, means an officer of the company under the Corporations Act. Note Officer of a corporation is defined in the Corporations Act, s 9. trustee company means a licensed trustee company within the meaning of the Corporations Act, chapter 5D. Note A reference to a law (including a Cwlth Act) includes a reference to the Act as originally made and as amended (see Legislation Act, s 102). valuation day, in relation to a common trust fund, means— (a) a day mentioned in section 25F (1) (a) (i) or (ii); or (b) any other day when, under section 25F (1) (b), a valuation of the fund is carried out.

Endnotes 1 About the endnotes page 18 Trustee Companies Act 1947 Effective: 14/10/15 R14 14/10/15 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au 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 R14 14/10/15 Trustee Companies Act 1947 Effective: 14/10/15 page 19 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au 3 Legislation history This Act was originally a Commonwealth ordinance—the Trustee Companies Ordinance 1947 No 15 (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). After 11 May 1989 and before 10 November 1999, Acts commenced on their notification day unless otherwise stated (see Australian Capital Territory (Self- Government) Act 1988 (Cwlth) s 25). Legislation before becoming Territory enactment Trustee Companies Act 1947 A1947-15 notified 18 December 1947 commenced 18 December 1947 as amended by Companies Ordinance 1954 Ord1954-14 notified 20 August 1954 commenced 1 October 1954 Trustee Companies Ordinance 1954 Ord1954-16 notified 26 August 1954 commenced 26 August 1954 Trustee Companies Ordinance 1960 Ord1960-7 notified 22 September 1960 commenced 22 September 1960 Trustee Companies Ordinance 1961 Ord1961-19 notified 27 July 1961 commenced 27 July 1961

Endnotes 3 Legislation history page 20 Trustee Companies Act 1947 Effective: 14/10/15 R14 14/10/15 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au Companies Ordinance 1962 Ord1962-7 notified 21 June 1962 commenced 1 July 1962 Trustee Companies Ordinance 1962 Ord1962-11 notified 13 September 1962 commenced 13 September 1962 Trustee Companies Ordinance 1965 Ord1965-4 notified 6 May 1965 commenced 6 May 1965 Trustee Companies Ordinance 1966 Ord1966-12 notified 4 August 1966 commenced 4 August 1966 Ordinances Revision (Decimal Currency) Ordinance 1966 Ord1966-19 notified 23 December 1966 commenced 23 December 1966 Trustee Companies Ordinance 1968 Ord1968-8 notified 18 April 1968 commenced 18 April 1968 Ordinances Revision (Companies Amendments) Ordinance 1982 Ord1982-38 notified 30 June 1982 commenced 1 July 1982 Ordinances Revision (Companies Amendments) Ordinance (No 2) 1982 Ord1982-93 notified 17 December 1982 commenced 17 January 1983 (Cwlth Gaz 1983 No S7) Trustee Companies (Amendment) Ordinance 1984 Ord1984-6 notified 15 March 1984 commenced 15 March 1984 Trustee Companies (Amendment) Ordinance 1985 Ord1985-34 notified 20 August 1985 commenced 20 August 1985

Endnotes Legislation history 3 R14 14/10/15 Trustee Companies Act 1947 Effective: 14/10/15 page 21 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au Administrative Arrangements (Consequential Amendments) Ordinance 1988 Ord1988-17 sch 2 notified 22 April 1988 commenced 22 April 1988 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 Statute Law Revision (Miscellaneous Provisions) Act 1992 A1992-23 sch 1 notified 4 June 1992 (Gaz 1992 No S71) commenced 4 June 1992 Trustee Companies (Amendment) Act 1992 A1992-49 notified 1 September 1992 (Gaz 1992 No S148) ss 1-3 commenced 1 September 1992 (s 2 (1)) remainder commenced 1 December 1992 (s 2 (2) and Gaz 1992 No 47) Trustee Companies (Amendment) Act 1993 A1993-53 notified 27 August 1993 (Gaz 1993 No S165) commenced 27 August 1993 (s 2) Statute Law Revision Act 1994 A1994-26 sch, note notified 31 May 1994 (Gaz 1994 No S93) commenced 31 May 1994 (s 2) Statute Law Revision Act 1995 A1995-46 sch notified 18 December 1995 (Gaz 1995 No S306) amdts commenced 18 December 1995 (s 2) Legal Practitioners (Consequential Amendments) Act 1997 A1997-96 sch 1 notified 1 December 1997 (Gaz 1997 No S380) s 1, s 2 commenced 1 December 1997 (s 2 (1)) sch 1 commenced 1 June 1998 (s 2 (2))

Endnotes 3 Legislation history page 22 Trustee Companies Act 1947 Effective: 14/10/15 R14 14/10/15 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au Statute Law Revision (Penalties) Act 1998 A1998-54 sch notified 27 November 1998 (Gaz 1998 No S207) s 1, s 2 commenced 27 November 1998 (s 2 (1)) sch commenced 9 December 1998 (s 2 (2) and Gaz 1998 No 49) Financial Sector Reform (ACT) Act 1999 A1999-33 sch notified 25 June 1999 (Gaz 1999 No S34) s 1, s 2, dict commenced 25 June 1999 (s 2 (1)) sch commenced 1 July 1999 (s 2 (2) and Cwlth Gaz 1999 No S283) Statute Law Amendment Act 2000 A2000-80 amdt 3.28 notified 21 December 2000 (Gaz 2000 No S69) commenced 21 December 2000 (s 2) Legislation (Consequential Amendments) Act 2001 A2001-44 pt 396 notified 26 July 2001 (Gaz 2001 No 30) s 1, s 2 commenced 26 July 2001 (IA s 10B) pt 396 commenced 12 September 2001 (s 2 and see Gaz 2001 No S65) Statute Law Amendment Act 2001 (No 2) A2001–56 pt 3.50 notified 5 September 2001 (Gaz 2001 No S65) commenced 5 September 2001 (s 2 (1)) Sexuality Discrimination Legislation Amendment Act 2004 A2004-2 sch 1 pt 1.18 notified LR 18 February 2004 s 1, s 2 commenced 18 February 2004 (LA s 75 (1)) sch 1 pt 1.18 commenced 22 March 2004 (s 2 and CN2004-4) Justice and Community Safety Legislation Amendment Act 2005 (No 3) A2005-43 sch 1 pt 1.15 notified LR 30 August 2005 s 1, s 2 commenced 30 August 2005 (LA s 75 (1)) sch 1 pt 1.15 commenced 1 October 2005 (s 2 (3) and CN2005-18) Statute Law Amendment Act 2009 A2009-20 sch 3 pt 3.72 notified LR 1 September 2009 s 1, s 2 commenced 1 September 2009 (LA s 75 (1)) sch 3 pt 3.72 commenced 22 September 2009 (s 2)

Endnotes Legislation history 3 R14 14/10/15 Trustee Companies Act 1947 Effective: 14/10/15 page 23 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au Justice and Community Safety Legislation Amendment Act 2009 (No 4) A2009-54 sch 1 pt 1.5 notified LR 18 December 2009 s 1, s 2 commenced 18 December 2009 (LA s 75 (1)) sch 1 pt 1.5 commenced 13 August 2010 (s 2 (1) and CN2010-9) Justice and Community Safety Legislation Amendment Act 2010 A2010-13 sch 1 pt 1.8 notified LR 31 March 2010 s 1, s 2 commenced 31 March 2010 (LA s 75 (1)) sch 1 pt 1.8 commenced 13 August 2010 (s 2 (2) (a) and see A2009-54 s 2 (1) and CN2010-9) Justice and Community Safety Legislation Amendment Act 2012 A2012-13 sch 1 pt 1.9 notified LR 11 April 2012 s 1, s 2 commenced 11 April 2012 (LA s 75 (1)) sch 1 pt 1.9 commenced 12 April 2012 (s 2 (1)) Statute Law Amendment Act 2012 A2012-21 sch 3 pt 3.50 notified LR 22 May 2012 s 1, s 2 commenced 22 May 2012 (LA s 75 (1)) sch 3 pt 3.50 commenced 5 June 2012 (s 2 (1)) Red Tape Reduction Legislation Amendment Act 2015 A2015-33 sch 1 pt 1.65 notified LR 30 September 2015 s 1, s 2 commenced 30 September 2015 (LA s 75 (1)) sch 1 pt 1.65 commenced 14 October 2015 (s 2)

Endnotes 4 Amendment history page 24 Trustee Companies Act 1947 Effective: 14/10/15 R14 14/10/15 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au 4 Amendment history Dictionary s 2 orig s 2 am Ord1985-34 om A1992-23 sch 1 (prev s 3) am Ord1954-16; Ord1982-38; Ord1985-34; Ord1988-17 sch 2 renum as s 2 A2001-44 amdt 1.4109 sub A2005-43 amdt 1.43 def bank om A1999-33 sch def books am A1995-46 sch def financial institution am A2001-44 amdt 1.4108 def first valuation day ins A1992-49 s 4 def officer am A1995-46 sch def related corporation om A1995-46 sch def related body corporate ins A1995-46 sch def trustee company am A1992-23 sch 1; A1995-46 sch def valuation day ins A1992-49 s 4 Notes s 3 ins A2001-44 amdt 1.4110 sub A2005-43 amdt 1.43 Change of name s 3A ins A1993-53 s 4 om A2009-54 amdt 1.9 Authorisation given to trustee company to act by person entitled to probate s 5 sub A1992-49 s 5 am A2005-43 amdt 1.44 Authorisation given to trustee company to act by 1 of several executors s 6 hdg sub A1994-26 note s 6 sub A1992-49 s 5 Authorisation given to trustee company to act by person entitled to administration with will annexed s 7 sub A1992-49 s 5 Authorisation given to trustee company to act by person entitled to administration on intestacy s 8 sub A1992-49 s 5 Capacity of trustee company to act s 8A ins A1992-49 s 5 Assets of company to be liable for proper administration of estates s 10 am Ord1966-19; Ord1985-34 sub A2005-43 amdt 1.45

Endnotes Amendment history 4 R14 14/10/15 Trustee Companies Act 1947 Effective: 14/10/15 page 25 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au Company may be appointed trustee, receiver or guardian of estate s 11 am Ord1985-34; A1994-26 sch; A2005-43 amdt 1.46 Company may act under power of attorney by managing director, manager or 2 directors s 12 am Ord1985-34 Company may be appointed to act as temporary executor or administrator s 13 am A1993-53 sch Application for consent under s 14 s 15 hdg sub A2005-43 amdt 1.47 s 15 am Ord1985-34; A1993-53 sch; A1994-26 sch; A2005-43 amdt 1.48; A2009-20 amdt 3.210; A2015-33 amdt 1.229 Manager and directors personally responsible to court s 17 am Ord1985-34 Estate fees s 18 am Ord1954-16; Ord1966-19; Ord1985-34 sub A1992-49 s 6 om A2009-54 amdt 1.10 Fees for preparation of returns s 18A ins A1992-49 s 6 am A2005-43 amdt 1.49 om A2009-54 amdt 1.11 Fees generally s 18B ins A1992-49 s 6 om A2009-54 amdt 1.12 Trustee company to be subject to same duties as individual s 19 am A1993-53 sch Company may hold property as joint tenant s 19A ins Ord1954-16 Company may be removed from office by court and provisions for relief against company or directors s 20 am A2005-43 amdt 1.50 Order for account on application of trustee etc s 21 am A1993-53 sch; A2004-2 amdt 1.58, amdt 1.59; A2005-43 amdt 1.51, amdt 1.52 om A2009-54 amdt 1.13 Supreme Court may order audit in any estate committed to the company s 22 am Ord1985-34; A1993-53 sch; A1998-54 sch; A2005-43 amdt 1.53, amdt 1.54 om A2009-54 amdt 1.14

Endnotes 4 Amendment history page 26 Trustee Companies Act 1947 Effective: 14/10/15 R14 14/10/15 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au Voluntary winding-up of company or disposal of shares may be restrained by Supreme Court s 23 am A1993-53 sch; A2005-43 amdts 1.55-1.57 Restriction on classes of business s 24 am Ord1954-14; Ord1962-7; Ord1966-19; Ord1982-93; Ord1985-34; A1995-46 sch; A1998-54 sch; ss renum R5 LA; A2005-43 amdt 1.58 om A2009-54 amdt 1.15 Separate accounts of each estate to be kept s 25 om A2009-54 amdt 1.16 Contributory investments s 25A ins Ord1985-34 am A1994-26 sch; A2001-56 amdt 3.858 om A2009-54 amdt 1.17 Common trust funds s 25B ins A1992-49 s 7 am A1994-26 sch om A2009-54 amdt 1.18 Crediting of money to common trust fund s 25C ins A1992-49 s 7 om A2009-54 amdt 1.19 Investment in and withdrawal from common trust fund s 25D ins A1992-49 s 7 om A2009-54 amdt 1.20 Beneficial interest in common trust fund s 25E ins A1992-49 s 7 om A2009-54 amdt 1.21 Valuation of common trust fund s 25F ins A1992-49 s 7 om A2009-54 amdt 1.22 Payment of income s 25G ins A1992-49 s 7 om A2009-54 amdt 1.23 Realisation and acquisition of investments of common trust fund s 25H ins A1992-49 s 7 om A2009-54 amdt 1.24 Trustee company acting jointly with another person s 25I ins A1992-49 s 7 om A2009-54 amdt 1.25

Endnotes Amendment history 4 R14 14/10/15 Trustee Companies Act 1947 Effective: 14/10/15 page 27 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au Fees in relation to common trust fund s 25J ins A1992-49 s 7 om A2009-54 amdt 1.26 Improper dealings with money s 26 am Ord1966-19; Ord1985-34; A1998-54 sch om A2009-54 amdt 1.27 Power to deposit amounts with banks s 27 am Ord1985-34 sub A2005-43 amdt 1.59 om A2009-54 amdt 1.28 Payment of money unclaimed s 28 am Ord1966-19; Ord1985-34; Ord1988-17 sch 2; A1993-53 sch; A1998-54 sch; ss renum R5 LA; A2005-43 amdt 1.60 om A2009-54 amdt 1.29 Persons entitled may apply subsequently s 29 am Ord1985-34; Ord1988-17 sch 2; A2005-43 amdt 1.61 om A2009-54 amdt 1.30 Order for account on application of Minister s 30 am Ord1985-34; Ord1988-17 sch 2; A1993-53 sch; A2005-43 amdts 1.62-1.64 om A2009-54 amdt 1.31 Quarterly financial declarations s 31 am Ord1966-19; Ord1985-34; Ord1988-17 sch 2; A1998-54 sch; A2001-44 amdt 1.4111, amdt 1.4112; pars renum R5 LA om A2009-54 amdt 1.32 Information etc for Minister s 31A ins Ord1985-34 am Ord1988-17 sch 2; A1993-53 sch; A1998-54 sch om A2009-54 amdt 1.33 Inquiries and audits s 31B ins Ord1985-34 am Ord1988-17 sch 2; A1998-54 sch; A2005-43 amdt 1.65 om A2009-54 amdt 1.34 Testators may appoint own lawyers s 33 am A1993-53 sch; A1997-96 sch 1 sub A2005-43 amdt 1.66 Incorporation and powers of company except so far as specifically altered to remain s 34 om A2009-54 amdt 1.35

Endnotes 4 Amendment history page 28 Trustee Companies Act 1947 Effective: 14/10/15 R14 14/10/15 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au Approved forms s 34A ins A2001-44 amdt 1.4113 (4)-(7) exp 12 September 2002 (s 34A (7)) om A2009-54 amdt 1.36 Transfer determinations s 34B hdg sub A2012-13 amdt 1.41 s 34B ins A2010-13 amdt 1.34 am A2012-13 amdt 1.42; A2012-21 amdt 3.196, amdt 3.197 Regulation-making power s 35 am Ord1966-19; Ord1985-34; Ord1988-17 sch 2; Ord1989-38 sch 1; A1998-54 sch sub A2001-44 amdt 1.4114 Transitional s 36 ins A2000-80 amdt 3.28 om A2009-54 amdt 1.37 Transitional—def trustee company s 37 ins A2009-54 amdt 1.38 exp 13 August 2011 (s 37 (2) (a)) Specified trustee companies sch 1 hdg sub Ord1985-34 sub A2001-44 amdt 1.4115 sch 1 am Ord1954-16; Ord1960-7; Ord1961-19; Ord1962-11; Ord1965-4; Ord1966-12; Ord1968-8; Ord1984-6 om A2009-54 amdt 1.39 Quarterly financial declaration sch 2 am Ord1966-19 sub Ord1985-34 am A1994-26 sch; A1995-46 sch om A2001-44 amdt 1.4116 Dictionary dict ins A2005-43 amdt 1.67 am A2009-20 amdt 3.211; A2015-33 amdt 1.230 def books ins A2005-43 amdt 1.67 def first valuation day ins A2005-43 amdt 1.67 def officer ins A2005-43 amdt 1.67 def trustee company ins A2005-43 amdt 1.67 sub A2009-54 amdt 1.40; A2010-13 amdt 1.35 def valuation day ins A2005-43 amdt 1.67

Endnotes Earlier republications 5 R14 14/10/15 Trustee Companies Act 1947 Effective: 14/10/15 page 29 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au 5 Earlier republications Some earlier republications were not numbered. The number in column 1 refers to the publication order. Since 12 September 2001 every authorised republication has been published in electronic pdf format on the ACT legislation register. A selection of authorised republications have also been published in printed format. These republications are marked with an asterisk (*) in column 1. Electronic and printed versions of an authorised republication are identical. Republication No Amendments to Republication date 1 Ord1989-38 30 September 1991 2 A1992-49 31 July 1993 3 A1995-46 1 January 1996 4 A1998-54 31 March 1999 5 A2001-56 9 August 2002 6 A2001-56 13 September 2002 7 A2004-2 22 March 2004 8 A2005-43 1 October 2005 9 A2009-20 22 September 2009 10 A2010-13 13 August 2010 11 A2010-13 14 August 2011 12 A2012-13 12 April 2012 13 A2012-21 5 June 2012 © Australian Capital Territory 2015

The Act rests on a small set of recurring legal concepts and cross-references to other Commonwealth and Territory statutes. These concepts are the structural levers that determine who can act, how they act, what they are liable for, and how their powers interact with other law.

Trustee company. The Act’s central actor is the trustee company, defined in the dictionary as a licensed trustee company within the meaning of the Corporations Act, chapter 5D. The Act therefore presupposes the existence of federal licensing and supervision regimes in the Corporations Act and in ASIC, such that a company must hold the relevant licence under Commonwealth law to qualify under the Act’s scheme (dict; s 34B(5) for ASIC interaction). Several provisions refer to officers of a trustee company as defined by the Corporations Act (dict, “officer”).

Substitution and delegation of fiduciary office. The Act converts an appointment or entitlement to be appointed into a mechanism allowing a trustee company to be brought in to act either jointly or in the place of an individual applicant for probate, letters of administration, or other fiduciary office (ss 4-8, 11, 13-14). Where probate or administration is granted to a trustee company the company “may perform and discharge all the acts and duties” of the office (s 8A). The Supreme Court retains gatekeeping functions: for example, where consent is required for an executor/administrator to appoint a company (s 14) or where the Court receives affidavits from company officers (s 9).

Liability architecture. Liability is explicitly allocated at multiple levels. Company capital, paid and unpaid, and “all other assets” of a trustee company are made liable for proper administration of estates when probate or letters of administration are granted to a company (s 10). Where a company is appointed to trustee, receiver, guardian or administrator, the company’s capital and assets, and the estates of directors, manager and assistant manager, are liable for proper discharge of that office (s 11(6)). The statute also prescribes personal liability for natural persons in control: managers and directors are individually and collectively responsible to the Supreme Court and may be subject to attachment, committal or other processes (s 17). Section 19(1) brings trustee companies into parity with individuals for rights, duties and obligations.

Court oversight and remedies. The Supreme Court is a continuous background presence. It may grant probate or letters of administration in the forms provided by the Act (ss 5-8), act on affidavits of managing director or manager for procedural purposes (s 9), hear applications for consent where an executor or administrator proposes to appoint a company (s 14) and may require service on beneficiaries and order costs (s 15). The Court may remove a trustee company from office (s 20) and make orders for relief in proceedings brought by persons claiming against the company or directors (s 20(2)-(3)), and may restrain voluntary winding-up or disposal of shares (s 23).

Procedural mechanics. Several provisions prescribe how the company may act operationally: company officers may execute powers of attorney (s 12); the managing director or manager can personally attend where attendance by an executor, administrator or trustee is required (s 16); and an executor or administrator can appoint a trustee company to exercise and discharge duties with Court consent (s 14). For applications for consent, public notice at least seven days before the application is required and the Court may require service on persons entitled to immediate receipt of income or corpus of the estate (s 15).

Transfer mechanism tied to ASIC and Corporations Act. Section 34B implements a federal statutory mechanism: if ASIC cancels a trustee company’s licence and a transfer determination under the Corporations Act s 601WBA is made, and ASIC issues a certificate under s 601WBG, the receiving company becomes successor in law to the transferring company for transferred estate assets and liabilities when the certificate comes into force. The section treats the operation of this transfer as not being a breach of contract, confidence, instrument term or event of default for the purposes listed in s 34B(4).

Regulatory overlay. The Executive has regulation-making power and regulations may create offences with penalties capped at 10 penalty units for regulatory contraventions (s 35). The Act also cross-references the Legislation Act for the legal status of editorial notes and for definitions of “public notice” and other terms.

Dictionary and cross-references. The dictionary is stated as part of the Act (s 2) and includes signpost definitions that import Corporations Act provisions (for example “books,see the Corporations Act, section 9”). The Act therefore functions in close interplay with the Corporations Act and other Territory legislation identified in the dictionary and endnotes.

These concepts combine to make trustee companies statutory substitutes for natural-person fiduciaries, embedding company capital and officers’ personal responsibility into the liability and oversight framework while retaining Court discretion at key junctures.

The Act affects a defined set of participants in estate administration and fiduciary markets. Identify the actors and the cost-bearing relationships the Act establishes, with section references.

Trustee companies (licensed under the Corporations Act). These are the primary beneficiaries of the Act’s permissions. The Act expands the operational scope of such companies by granting statutory authority to apply for probate or letters of administration, act as trustees, receivers, guardians, attorneys, and to be appointed by courts or private persons (ss 4, 5-8, 11, 12, 13, 14). Trustee companies also acquire obligations and exposures: their paid and unpaid capital and all other assets are explicitly liable for proper administration (s 10; s 11(6); s 17(2)).

Directors, managers and assistant managers of trustee companies. Natural persons in senior positions become legal actors for enforcement and court process. The Act renders the managing director or manager the person on whose affidavit the Court may act in probate matters (s 9) and permits those officers to attend in person where personal attendance is required of an executor or trustee (s 16). Critically, managers and directors are individually and collectively responsible to the Supreme Court and may be subject to attachment, committal for contempt or other processes (s 17(1)); they may also be liable in their own proper person for some acts (s 19(2)). The estates of directors, manager and assistant manager are also expressly made liable where the company is appointed to certain offices (s 11(6)).

Testators and individuals entitled to apply for probate or letters of administration. The Act changes the options available to these parties. Individuals entitled to apply for probate or administration may authorise a trustee company to apply, or may join with a trustee company in an application (ss 5-8). An executor or administrator may appoint a trustee company to discharge duties with Court consent (s 14). Those who instruct, or whose will names, the trustee company are directly affected by how the Court interprets the testator’s expressed wishes regarding delegation (see s 5(2), s 6(2), s 7(2), s 14(4)).

Beneficiaries and persons with claims against estates. For persons entitled to income or corpus, the Act creates procedural protections: the Court may require service on those entitled (s 15(2)); an applicant for consent to appoint a trustee company must give public notice at least seven days before applying (s 15(1)); persons interested in an estate may apply to restrain voluntary winding-up or share disposals by the trustee company while the estate remains unadministered (s 23(2)). Moreover, any person claiming relief against a trustee company may proceed against the company or any of its directors or officers in the Supreme Court (s 20(2)).

Courts. The Supreme Court is a decision-maker with active control functions under multiple provisions: it may grant probate/letters in the forms provided (ss 5-8), receive affidavits from company officers (s 9), consent to an executor’s appointment of a trustee company (s 14), require service on beneficiaries (s 15(2)), order costs payable out of the estate (s 15(3)), remove a company from office (s 20(1)), grant relief in proceedings against a company or its officers (s 20(2)-(3)), and restrain winding-up or share disposals (s 23(1)-(2)).

Regulators , ASIC and Commonwealth law interaction. Section 34B ties the Act to ASIC-regulated licensing under the Corporations Act: if ASIC cancels the licence of a trustee company and makes a transfer determination under the Corporations Act s 601WBA and issues a certificate under s 601WBG, then an ACT-registered transferring or receiving company is subject to the transfer mechanism in s 34B (s 34B(1)-(3)). Section 34B(5) defines ASIC by reference to the Australian Securities and Investments Commission Act 2001 (Cwlth).

Lawyers. The Act preserves a testator’s direction that a particular lawyer conduct the legal business of the estate: where the testator has so directed, the lawyer is entitled to conduct that legal business (s 33(1)-(2)); the company is not liable for the lawyer’s misconduct, but the Court may remove the lawyer on application by the company or an interested person, and the Court may appoint a lawyer nominated by the company if the lawyer is removed (s 33(3)-(4)).

Creditors and contracting counterparties. Section 34B(4) states the operation of a transfer under the Corporations Act-related certificate of transfer is not to be regarded as breach of contract, confidence, instrument terms, or an event of default, or as giving rise to remedies or termination rights by a party to any contract or instrument in the list. This alters how counterparties will treat a compulsory or voluntary transfer under the Commonwealth regime when an ACT-registered company is involved.

Executive and legislative actors. The Executive may make regulations under s 35, including prescribing offences for contraventions of regulations up to a maximum of 10 penalty units, which affects companies and persons regulated by the Act. The Legislation Act’s provisions, incorporated by reference in notes and signpost definitions, shape the operation of certain formalities and definitions (see s 2 and various notes).

In sum, the Act affects trustee companies and their officers most directly by widening permissible activities while spelling out asset and personal liabilities. Beneficiaries, testators, lawyers, creditors, the Supreme Court and ASIC are also concretely affected through procedural protections, enforcement mechanisms and the transfer mechanism tied to federal regulation.

The Act creates duties on trustee companies and their officers and confers rights both procedural and substantive. Set out the principal duties and rights, with citations.

Rights to act in fiduciary roles. A trustee company named in a will by implication or expressly may act as executor and may apply for and obtain probate (s 4). Persons entitled to apply for probate or letters of administration may join or authorise trustee companies to make joint or sole applications (ss 5-8). Where probate or administration is granted to a trustee company, the company “may perform and discharge all the acts and duties” of the office (s 8A). The Act also gives trustee companies capacity to be appointed as trustee, receiver, or guardian by any court or person with the power to appoint (s 11(1)), and to act under powers of attorney where appointed attorney (s 12(1)). These are substantive rights that place trustee companies on parity with, or in place of, natural-person fiduciaries.

Procedural rights in court processes. The Supreme Court may receive and act on an affidavit from the managing director or manager of a trustee company in place of affidavits otherwise required from applicants for probate or letters of administration (s 9). A trustee company may attend where personal attendance is required in the person of its managing director or manager (s 16). In transfer situations under s 34B, when a federal certificate of transfer comes into force, the receiving company is taken to be the successor in law in relation to transferred estate assets and liabilities (s 34B(2)-(3)), and certain operational consequences are specified by the certificate (s 34B(3)(d)).

Duties of care, fiduciary duties and parity with individuals. Section 19(1) subjects trustee companies, when acting in the capacities listed, to the same respective rights, duties and obligations to which an individual acting in the same capacity would be subject. This imports the legal framework of fiduciary duties, duties of care, and obligations of trustees, though the Act itself does not restate private-law duty elements beyond parity.

Assets and capital liabilities. The company’s paid and unpaid capital and “all other assets of the trustee company” are made liable for the proper administration of an estate where probate or administration is granted to the company (s 10(2)). Where a trustee company is appointed in offices listed in s 11, the same scheme applies and the directors, manager and assistant manager and their estates are expressly made liable (s 11(6)).

Personal accountability for officers. Managers and directors are individually and collectively responsible to the Supreme Court and liable by process of attachment, committal for contempt or other process for the proper discharge of duties and obedience to court rules, orders and decrees in the same way as if they had personally held the office (s 17(1)). Section 17(2) preserves company asset liability for pecuniary loss occasioned by imperfect or improper discharge, or through neglect, by the trustee company or its officers.

Court control, removal and relief. The Supreme Court has removal powers and relief-making powers: a trustee company is subject to the same control and liable to removal as a private individual in the corresponding office (s 20(1)). Section 20(2) permits proceedings against the trustee company or against directors or officers claiming relief in relation to acts done or omitted; s 20(3) gives the Court a broad power to make orders considered appropriate in such proceedings.

Obligations on applicants for consent. Where an executor or administrator proposes to appoint a trustee company to discharge duties, they must, before applying for Court consent, give public notice at least seven days before the application date (s 15(1)). The Court may require service on persons entitled to immediate receipt of income or corpus (s 15(2)). Costs of the application may be ordered to be paid out of the estate (s 15(3)). The Court must refuse consent where the testator has expressed a wish that the trusts not be delegated or that a trustee company or the particular company should not act in the trusts (s 14(4); s 15(4)).

Limitations on powers. A trustee company cannot be appointed where the instrument creating the trust or power forbids appointment of a trustee company or that particular trustee company, or when the instrument provides that there shall be another trustee in addition to a trustee company or expressly provides that a trustee company is not to be sole trustee (s 11(4)-(5)). Section 12(2) specifies that powers exercisable by a trustee company under a power of attorney cannot exceed those legally capable of being conferred on a private individual.

Protection of third parties dealing in good faith. Section 13 includes an express protection for bona fide third parties who deal with the trustee company before registration of a principal’s death or revocation of authority: such acts are valid and effectual in favour of those persons, notwithstanding the revocation or death, provided the deed appointing the company is filed in accordance with law.

Transfer-related protections for counterparties. Section 34B(4) specifies that the operation of the transfer under the Corporations Act certificate is not to be regarded as a breach of contract, breach of confidence, breach of instrument provision restricting assignment, event of default, or giving rise to a remedy by a contracting party, or permitting termination or exercise of rights under any contract or instrument.

Regulatory duties. The Executive may make regulations under s 35(1). Regulations may prescribe offences with maximum penalties of up to 10 penalty units for contravention (s 35(2)); the republication notes state the penalty unit values at the republication date.

Testators’ direction of legal representation. Section 33 recognises a testator’s direction that a particular lawyer conduct the legal business of the estate. The lawyer is entitled to do so (s 33(2)), but the trustee company is not liable for the lawyer’s misconduct (s 33(3)(a)), and the Court may remove the lawyer on application and appoint a company-nominated lawyer if removal occurs (s 33(3)-(4)).

Taken together, these duties and rights allocate capacity to act, impose fiduciary parity and capital and person-level liability, maintain Court oversight, and impose procedural prerequisites on applications involving trustee companies.

The Act provides several mechanisms for enforcement through courts, regulatory instruments, and liability allocation. The principal enforcement mechanisms and penalty-related provisions in the text are as follows.

Court-based enforcement and remedies. The Supreme Court is the principal enforcement forum under the Act. It exercises procedural and substantive control: it may receive affidavits from a trustee company’s managing director or manager for probate or administration applications (s 9), consent (or refuse consent) to an executor/administrator’s appointment of a trustee company (s 14), and require service on immediate beneficiaries (s 15(2)). The Court may order costs of applications to be paid out of the estate (s 15(3)). It is empowered to remove a trustee company from office and, in proceedings brought against the company or its directors or officers, to make any order it considers appropriate (s 20(1)-(3)). The Court may also restrain voluntary winding-up or disposal of shares while an estate remains unadministered (s 23(1)-(2)). Managers and directors are liable to attachment, committal for contempt and other processes for improper discharge of duties or disobedience to court rules, orders or decrees (s 17(1)).

Personal and company-level financial liability. The Act explicitly places financial exposure on multiple layers. Where probate or letters of administration are granted to a trustee company, the paid and unpaid capital and all other assets of the company are liable for proper administration (s 10(2)). When a company is appointed trustee, receiver or guardian, the company’s capital and assets and the estates of the directors, manager and assistant manager are declared liable for proper discharge (s 11(6)). Section 17(2) confirms that company assets remain liable for pecuniary loss occasioned through imperfect or improper discharge, or through neglect, by the company or its officers.

Proceedings by third parties. Section 20(2) permits persons claiming relief against a trustee company for acts or omissions under powers given by the Act to proceed in the Supreme Court against the company or any of its directors or officers. The Court may make appropriate orders in such proceedings (s 20(3)). Section 23(2) empowers persons interested in an estate or with a claim to apply to the Court to restrain directors or shareholders from disposing of shares or to restrain voluntary winding-up, with the Court empowered to make any order it considers appropriate.

Regulatory penalties under regulations. The Executive may make regulations for the Act (s 35(1)) and may prescribe offences for contraventions of the regulations, with maximum penalties of not more than 10 penalty units for such offences (s 35(2)). The republication preface records a penalty unit value (at republication) of $150 for an individual and $750 for a corporation; that figure is recorded in the republication material and should be checked against current Legislation Act coefficients where practical.

Protection against contract-based remedies on transfer. Section 34B(4) is enforcement-relevant because it prevents the operation of a statutory transfer certificate (issued by ASIC under the Corporations Act) from being treated as breach of contract, breach of confidence, breach of an instrument prohibiting assignment, an event of default, or giving rise to remedies or termination rights by a contracting party. That provision therefore neutralises a range of private-law remedies that counterparties might otherwise assert against a receiving company after a statutory transfer becomes effective.

Attorney and lawyer regulation. Although the Act does not prescribe specific criminal penalties for misbehaviour by lawyers retained pursuant to a testator’s direction, s 33(3)-(4) gives the Court power to remove a lawyer and for the company to have a nominated replacement appointed, which is an administrative enforcement route.

Remedies are therefore concentrated in judicial processes (including attachment and committal), company asset exposure, and discretionary orders of the Supreme Court. Regulations may provide additional statutory offences with capped monetary penalties; the Act itself does not set out a wide menu of civil damages rules beyond liability allocation and the Court’s power to order relief. Section 34B(4) also reshapes remedies in transfer situations by excluding certain private-law recourse against receiving companies when the Corporations Act-based certificate of transfer is in effect.

The Act is compact in form but makes multiple cross-references and depends on federal statutory regimes. The interaction mechanisms are both definitional (importing definitions and authorities) and operational (relying on Commonwealth transfer mechanisms and regulators). The principal interactions in the text are:

Corporations Act. The dictionary defines “trustee company” as a licensed trustee company within the meaning of the Corporations Act, chapter 5D (dict). The Act also imports the Corporations Act for officer definitions (dict, “officer” of a trustee company). Section 34B expressly invokes Corporations Act s 601WBA (transfer determinations) and s 601WBG (certificate of transfer) as a trigger for statutory transfer of estate assets and liabilities when ASIC cancels a trustee company’s licence and issues a certificate. The transfer mechanism therefore connects ACT territory administrative arrangements to federal corporate licensing and insolvency/transfer procedures.

Australian Securities and Investments Commission Act 2001 (Cwlth). Section 34B(5) defines ASIC by reference to the Australian Securities and Investments Commission Act 2001 (Cwlth). The practical effect is that ASIC’s role and powers under Commonwealth law are the regulatory backstop for licence cancellation and transfer determinations encompassed by s 34B.

Legislation Act 2001 (ACT). The Act’s preface and notes reference the Legislation Act for the legal status of notes, definitions of terms such as “public notice”, and editorial amendment powers (s 2 notes, and introductory material). The dictionary and several notes explicitly indicate that signpost definitions (for example “books,see the Corporations Act, section 9”) import definitions from other legislation.

Supreme Court jurisdiction and Territory practice. The Act repeatedly places decision-making and enforcement authority in the Supreme Court for the ACT: the Court may receive affidavits, require service on beneficiaries, grant or refuse consent for appointments, remove companies from office, order relief, and restrain winding-up or share disposal (ss 9, 14-15, 20, 23). The Act thus operates in the procedural ecosystem of ACT Supreme Court practice, evidentiary rules and costs orders.

Federal transfer regime and private-law contracts. Section 34B(4) expressly limits the operation of private-law remedies in the context of a Corporations Act-based transfer certificate by declaring that the operation of the transfer is not to be regarded as a breach of contract, breach of confidence, breach of any instrument, an event of default, or giving rise to remedies or termination of contracts. That interacts directly with private contractual arrangements governing estate assets; counterparties must accept the statutory transfer consequences without asserting such private-law remedies where the statutory certificate applies.

Regulations and delegated law. Section 35 authorises the Executive to make regulations for the Act, including the ability to prescribe offences and penalties up to 10 penalty units. The regulations, once made, must comply with the Legislation Act’s notification and disallowance procedures. The Act therefore contemplates a delegated-law layer with potentially bespoke operational rules, enforcement mechanics and offences.

Other historical Commonwealth-to-ACT conversion consequences. The legislation history records that the Act began life as a Commonwealth ordinance (Trustee Companies Ordinance 1947) and was converted into an ACT enactment on self-government day (11 May 1989), with the Legislation Act and the Self-Government (Citation of Laws) Act 1989 affecting commencement and naming (endnote 3). That history indicates the Act’s place in a broader corpus of laws whose origins and amendment pathways include Commonwealth statutes and administrative arrangements.

Local procedural law. The Act refers to “public notice” as meaning notice on an ACT government website or in a daily newspaper circulating in the ACT (s 15(1) note referencing Legislation Act, dict, pt 1). The requirement imports Territory procedural standards for notice.

In short, the Trustee Companies Act operates as a territory statute that authorises trustee companies defined by Commonwealth law to act in fiduciary offices, while relying on federal licensing and transfer mechanisms through ASIC and the Corporations Act. It embeds Supreme Court oversight within Territory procedural practice and contemplates regulations to refine operational detail.

The republication includes a detailed amendment history and legislative history (endnotes 3 and 4) that document the Act’s evolution. Key mechanical and structural amendments recorded in the endnotes are as follows.

Origins and conversion to ACT law. The Act originated as the Trustee Companies Ordinance 1947 (No 15, Commonwealth). The Self-Government (Citation of Laws) Act 1989 and provisions of the Australian Capital Territory (Self-Government) Act 1988 converted most former Commonwealth ordinances into ACT enactments on 11 May 1989, at which point the name changed from Ordinance to Act (endnote 3).

1990s and early 2000s changes. The Act was amended repeatedly in the 1990s and early 2000s. Notable insertions include s 8A (Capacity of trustee company to act), which was inserted by the Trustee Companies (Amendment) Act 1992 A1992-49 (amendment entry A1992-49 s 5; amendment history notes s 8A ins A1992-49 s 5). The Act saw multiple statute law revision instruments and amendments through the 1990s and 2000s (see endnote 3 list of amending Acts and ordinances).

Removal and omission of older provisions. A significant structural revision happened with the Justice and Community Safety Legislation Amendment Act 2009 (No 4) A2009-54 and associated amending instruments noted in the endnotes. Numerous sections dealing with common trust funds, separate estate accounts, contributory investments, fees, and other operational matters were omitted by A2009-54 amendments (see amendment history notes: many “om A2009-54 amdt 1.xx” entries). The amendment history indicates that s 34 (Incorporation and powers of company) was omitted and that several operational sections relating to common trust funds and periodic reporting were removed at that time (amendment history entries).

Introduction of transfer determinations. Section 34B (Transfer determinations) was inserted more recently: s 34B was inserted by A2010-13 (Trustee Companies Act 2010 amendments) and subsequently amended by A2012-13 and A2012-21 (see amendment history entries: s 34B ins A2010-13 amdt 1.34; am A2012-13 amdt 1.42; A2012-21 amdt 3.196, amdt 3.197). The transfer provision links the Act to the Corporations Act and ASIC’s power to effect transfers on licence cancellation or by application.

Red Tape Reduction amendments. The Red Tape Reduction Legislation Amendment Act 2015 A2015-33 affected the Act; the republication metadata records that A2015-33 sch 1 pt 1.65 was notified LR 30 September 2015 and sch 1 pt 1.65 commenced 14 October 2015. The amendment history annotates changes to s 15 and the dictionary around that period (see amendment history entries for s 15 am A2015-33 amdt 1.229 and dictionary entries).

Editorial amendments and republication procedure. The republication preface explains that the Parliamentary Counsel’s Office may make editorial amendments under the Legislation Act, part 11.3, and that editorial changes do not change legal effect but are treated as having commenced on the republication date (preface). The amendment history records multiple numbering, renumbering, insertions and omissions across decades, reflecting the Act’s piecemeal evolution (endnote 4 sets out detailed line items).

Notable insertions and deletions. The amendment history flags certain specific insertions and deletions across time, including additions of the dictionary (ins A2005-43), insertion and subsequently omission of sections concerning common trust funds and contributory investments (ins A1992-49 s 7; om A2009-54), the addition of the testators’ lawyer provision (s 33 am A1993-53 sch; A1997-96 sch 1; sub A2005-43 amdt 1.66), and the later insertion of s 34B on transfer determinations (A2010-13 and later amendments). Earlier provisions chronicled in the amendment table were sometimes renumbered, relocated or removed as part of statute law revision and consolidation (endnote 4).

Transitional provisions. The amendment history includes a range of transitional and expiry notations (for example, certain insertions had expiry dates, see endnote 4: s 34A (4)-(7) expired 12 September 2002; transitional def adjustments), reflecting legislative housekeeping during conversions and updates.

In sum, the Act has been subject to iterative amendment over many decades. Recent noteworthy developments are the insertion of transfer mechanics tied to ASIC (s 34B) in the 2010-2012 period and the 2009-2015 waves of redrafting and deletions which removed older operational detail (notably common trust funds and related fee/reporting provisions). The republication and endnotes document these changes; practitioners should consult the amendment history (endnotes 3-4) for precise amendment instruments, commencement dates and omitted provisions when advising on historical practices or matters spanning amendment dates.

The republication of the Act provided does not record judicial decisions interpreting the Trustee Companies Act 1947. The text and endnotes contain legislative history and amendment notes but do not list cases, authorities or reported litigation outcomes arising under the Act. Consequently, there is no litigation history set out in this republication document to cite.

That absence does not mean the Act is free from judicial scrutiny. The Act expressly contemplates and provides for litigation and judicial processes in multiple places, which establishes the Court as the operative forum where legal questions and disputes will arise:

The Supreme Court is empowered to grant or refuse probate or letters of administration as the Act prescribes (ss 5-8), and to act on affidavits from managing directors or managers in place of other affidavits (s 9).
The Court hears and decides applications for consent when an executor or administrator proposes to appoint a trustee company to discharge duties (ss 14-15), and may require service on persons entitled to immediate receipt of income or corpus (s 15(2)).
Managers and directors are individually and collectively responsible to the Supreme Court and are liable to attachment, committal for contempt and other processes for obedience to court orders (s 17(1)). Section 17(2) preserves company asset liability for pecuniary loss occasioned by imperfect or negligent discharge.
Relief against a trustee company, directors or officers may be sought in the Supreme Court (s 20(2)-(3)). Orders considered appropriate by the Court can be made in such proceedings.
Restraining orders concerning winding-up or share dispositions may be sought in the Supreme Court by interested persons (s 23(2)).

Given these provisions, litigation under the Act would typically arise in several factual axes: disputes about the validity of an appointment of a trustee company, challenges by beneficiaries to delegation of executor duties (especially where the testator expressed an opposed wish), claims for breach of fiduciary duty or negligent administration against a trustee company or its officers, applications for the Court to restrain winding-up or share disposals, and proceedings arising from the operation of a transfer certificate under s 34B where federal transfer mechanisms intersect with Territory administration. Section 34B(4) modifies the private-law consequences of a transfer certificate by stating that the operation of the transfer is not to be regarded as a breach of contract or other listed civil wrongs, which will influence litigation strategies by counterparties.

Practitioners must therefore treat the absence of recorded case law in the republication as a gap in the republication document, not as evidence of absence of litigation. For judicial construction, application of fiduciary duty principles, and the interplay between company and officer liability, counsel and advisers will need to search relevant case law databases and reported decisions beyond the republication to locate interpretative authorities and precedents bearing on the Act’s provisions.

This Act contains a number of specific procedural traps and liability pivots that can catch inexperienced practitioners or corporate officers if overlooked. The following points are source-grounded and should be checked in practice.

Testator-expressed wishes can block delegation. Where a testator’s will expressly states that the office of executor should not be delegated, or that a trustee company or a particular trustee company should not act in the trusts of the will, the Supreme Court must not grant letters of administration or probate to a trustee company in contravention of that expression (ss 5(2), 6(2), 7(2), 14(4), s 15(4) cross‑references). Practically, a lawyer or company that assumes a company can step in without checking the will may be prevented from doing so.

Company assets and unpaid capital are on the line. The Act makes the paid and unpaid capital and all other assets of a trustee company liable for proper administration where probate or administration are granted to the company (s 10(2)). When a company acts as trustee, receiver or guardian, the company’s capital and assets and the directors’, manager’s and assistant manager’s estates are liable for proper discharge (s 11(6)). Boards must therefore be aware that the company’s capital structure and balance-sheet solidity are directly exposed by appointments under this Act.

Personal exposure of managers and directors. The Act imposes individual responsibility on managers and directors to the Supreme Court and subjects them to attachment, committal for contempt and other processes as if they had personally obtained probate or letters of administration and acted as executor, administrator or trustee (s 17(1)). Section 19(2) further confirms that natural persons are individually liable for their own acts. Directors and senior managers must therefore consider potential personal-process exposure and ensure appropriate governance, professional indemnity arrangements and legal advice.

Court consent and public notice requirements for certain appointments. An executor or administrator who wants to appoint a trustee company to discharge duties must seek Supreme Court consent (s 14(1)). The applicant must give public notice at least seven days before the application (s 15(1)) and the Court may require service on immediate beneficiaries (s 15(2)). The costs of the application may be ordered to be paid out of the estate (s 15(3)). Failure to comply with public-notice or service expectations may result in the Court refusing consent or ordering costs.

Power of attorney limitations. Section 12(1) authorises a trustee company to act under a power of attorney and prescribes officer-level execution (managing director or manager or two directors), but s 12(2) states this section does not authorise any person to give a trustee company a power that cannot legally be given to a private individual. Therefore, delegations that exceed the limits of powers available to private individuals are not authorised by the Act and remain invalid.

Potential operational mismatch when federal transfers occur. Section 34B governs the effect of an ASIC certificate of transfer under the Corporations Act. That certificate can make the receiving company successor in law to estate assets and liabilities and bring across duties, obligations, immunities, rights and privileges to the extent of the transfer (s 34B(2)-(3)). But the provision also declares that the operation of the transfer is not to be regarded as a breach of contract or other listed civil wrongs (s 34B(4)). Practitioners should be alert to the timing and practical effect of an ASIC certificate: counterparties may not be able to rely on contractual default provisions or to treat the transfer as an event of default. Section 34B applies only where ASIC issues the certificate and where the transferring or receiving company (or both) is registered in the ACT (s 34B(1)(c)).

Court discretion and potential for varied outcomes. Many provisions leave significant discretion to the Supreme Court: whether to grant consent (s 14), whether to require service (s 15(2)), what costs to order (s 15(3)), removal orders and relief (s 20(3)), and restraining orders for winding-up or share disposal (s 23). Predicting outcomes requires careful briefing of the Court and attention to procedural norms.

Company may be sole trustee even where instrument contemplates multiple trustees. Section 11(2) allows a trustee company to be appointed, or to continue to act, as sole trustee in cases where an instrument provides for more than one trustee, unless the instrument forbids appointment of a trustee company or the particular trustee company, or expressly requires another trustee in addition (s 11(4)-(5)). This can change the trust administration dynamic and may affect beneficiaries and co-trustees, who should be considered stakeholders.

Testators’ solicitor rights and company non-liability for lawyer misconduct. If a testator directs that a particular lawyer conduct the legal business of the estate, the lawyer is entitled to do so (s 33(2)). However, the trustee company is explicitly not liable for the lawyer’s misconduct (s 33(3)(a)), but the Court may remove the lawyer on application by the company or an interested person (s 33(3)(b)). This creates a practical bifurcation of liability for estate administration and legal work.

Regulatory offences likely narrow and delegated. The Act’s offence-making power resides with regulation under s 35, and regulations may impose monetary penalties up to 10 penalty units for contraventions. The Act itself contains no broad catalogue of criminal offences; enforcement relies on Court orders and delegated regulations. Practitioners should check any regulations made under s 35 for specific compliance requirements.

Public-record and notice mechanics. “Public notice” is defined by reference to the Legislation Act as notice on an ACT government website or in a daily newspaper circulating in the ACT (s 15(1) note). Non-compliance with prescribed public-notice mechanics could result in procedural delays or the Court refusing consent.

These are concrete operational and legal points that change who bears risk and how actions must be taken. Each item is grounded in the cited provision; practitioners should treat them as mandatory checks in transactions and administration involving trustee companies.

This section sets out actionable steps and checkpoints, grounded in the Act’s text, for trustee companies, directors, managers, executors, administrators, testators’ lawyers and interested persons to remain within the statutory framework.

Verify licensing and registration. The Act only applies to “trustee companies” as defined: licensed trustee companies within the meaning of the Corporations Act, ch 5D (dict). Confirm that the company holds the relevant Commonwealth licence and is properly registered in the ACT where required, particularly because s 34B’s transfer mechanism applies to transferring or receiving companies registered in the ACT (s 34B(1)(c)).

Check the will or instrument for express restrictions. Before accepting appointment or applying for probate or administration in substitution of an individual, check the testator’s will or any instrument creating the trust for express directions that the office should not be delegated or that a trustee company or that particular trustee company should not act. The Court must refuse consent where such an expression appears (ss 5(2), 6(2), 7(2), 14(4), s 15(4)). Similarly, check whether the instrument forbids appointment of a trustee company or requires another trustee in addition to a trustee company (s 11(4)-(5)).

For individuals entitled to apply for probate or administration. When an individual entitled to obtain probate or letters of administration considers joining with or authorising a trustee company to apply, use the authorisation pathways specified in ss 5-8. The individual may join with the trustee company in the application or authorise the trustee company to apply for probate or letters of administration (ss 5(1), 6(1), 7(1), 8(1)). If appointing the trustee company to act under a power of attorney, ensure the deed is filed in accordance with applicable filing requirements to secure the protection for bona fide third parties (s 13).

If an executor/administrator proposes to appoint a trustee company under s 14. Seek Supreme Court consent. The executor or administrator must apply to the Supreme Court for consent (s 14(1)). The applicant must give public notice at least seven days before the application (s 15(1)) and be prepared to have the Court order service on persons entitled to immediate receipt of income or corpus (s 15(2)). Prepare to have the costs of the application paid out of the estate if the Court so orders (s 15(3)). Provide the Court with material addressing any testator-expressed wishes forbidding delegation (s 14(4)).

Affidavits and attendance. For probate or administration applications made by or involving a trustee company, the Supreme Court may receive an

Trustee Companies Act 1947

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Trustee Companies Act 1947

Source text: opening excerpt

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