Trustee Companies Act 1947

Trustee company: The dictionary defines “trustee company” as a licensed trustee company within the meaning of the Corporations Act 2001 (Cwlth), chapter 5D. This definition was substituted by A2009-54 and A2010-13, aligning the ACT regime with the national licensing framework under the Corporations Act. Consequently, only entities holding an Australian financial services licence authorising them to provide trustee company services can operate as a trustee company under this Act.

Executor and administrator: The Act uses these terms in their traditional probate sense. An executor is a person appointed by a testator to carry out the terms of a will. An administrator is appointed by the court when there is no valid will (intestacy) or when the executor cannot or will not act. The Act enables a trustee company to be named as executor (s 4) or to be authorised to apply for administration with the will annexed (ss 5-7) or on intestacy (s 8).

Authorisation: The Act distinguishes between being named as executor and being authorised by a person entitled to probate or administration. Sections 5-8 allow a person who is entitled to a grant to either join with a trustee company in the application or authorise the company to apply alone. The Supreme Court must grant the application unless the testator has expressed a contrary wish (e.g., that a trustee company should not act). This preserves testamentary freedom.

Capacity: Section 8A confirms that once probate or letters of administration (with or without will annexed) are granted to a trustee company, it may perform all acts and duties of the office. This is a statutory confirmation that the company has the full legal capacity of a natural person in that role.

Liability: A recurring theme is the liability of the trustee company’s assets and the personal responsibility of its managers and directors. Section 10 provides that the paid and unpaid capital and all other assets of the trustee company are liable for the proper administration of an estate when probate or letters of administration are granted to it. Section 11(6) extends this to appointments as trustee, receiver, or guardian, and additionally makes the directors, manager, and assistant manager and their respective estates liable. Section 12 similarly provides for liability of company assets when acting under a power of attorney. Section 14(3) provides that upon appointment under that section, the trustee company’s assets are liable for proper discharge, and the appointer is released. Section 17(2) provides that despite the personal responsibility of managers and directors under subsection (1), the company’s capital and assets remain liable for any pecuniary loss caused by imperfect or improper discharge.

Personal responsibility to court: Section 17(1) states that the manager and directors are individually and collectively responsible to the Supreme Court and are liable by process of attachment, commitment for contempt, or other process, as if they had personally obtained probate or administration. Section 19(2) qualifies that for any liability that would attach to an individual acting in such capacity by way of attachment, commitment, or other process, the managers and directors are liable each for his or her own individual act only. This creates a dual regime: corporate liability for pecuniary loss, and personal contempt-like liability for the management.

Joint tenancy: Section 19A confirms that a trustee company is capable of acquiring and holding property as a joint tenant with an individual, and if the company is dissolved, the property devolves on the other joint tenant. This removes any doubt about corporate capacity to hold joint tenancy (which traditionally required the four unities and a natural person).

Transfer determination: Section 34B provides for the statutory novation of estate assets and liabilities when ASIC makes a transfer determination under Corporations Act s 601WBA. The receiving company becomes the successor in law, and the transfer is not to be regarded as a breach of contract, confidence, or an event of default. This ensures seamless transition when a trustee company’s licence is cancelled.

The Act directly affects licensed trustee companies operating in the Australian Capital Territory. These are corporations that hold a licence under the Corporations Act 2001 (Cwlth) chapter 5D. The Act provides the legal mechanism for such companies to act in fiduciary roles that would otherwise be limited to natural persons. It also affects the directors, managers, and assistant managers of these companies, who are made personally responsible to the Supreme Court (s 17) and may be liable in their own persons for contempt or attachment.

Testators and their estates are central. A testator may name a trustee company as executor (s 4) or may direct that a particular lawyer conduct the legal business of their estate (s 33). The Act respects the testator’s wishes by prohibiting appointments or delegations where the testator has expressed a desire against the involvement of a trustee company (ss 5(2), 6(2), 7(2), 11(4), 15(4)). Beneficiaries are affected because the company’s assets are liable for proper administration, providing a form of security. They may also apply for relief against the company or its officers under section 20.

Persons entitled to probate or administration , such as executors, next of kin, or residuary beneficiaries , may authorise a trustee company to act jointly or in their place (ss 5-8). This allows individuals to delegate the burdensome task of estate administration to a corporate fiduciary. However, the Act does not compel them to do so.

The Supreme Court of the ACT plays a significant supervisory role. It must be satisfied that the testator’s wishes do not preclude the appointment (ss 5(2), 6(2), 7(2), 15(4)). It receives affidavits from the managing director or manager instead of from the individual applicant (s 9). It gives consent under section 14 for an executor or administrator to appoint a trustee company to discharge their duties. It may require notice to persons entitled to income or corpus (s 15(2)), and costs of such applications are in the court’s discretion (s 15(3)). The court also has power to remove a trustee company from office (s 20) and to restrain a voluntary winding-up or disposal of shares (s 23).

Australian Securities and Investments Commission (ASIC) is involved because it issues licences to trustee companies under the Corporations Act and can cancel licences, leading to transfer determinations under section 601WBA. Section 34B of this Act gives effect to such determinations for companies registered in the ACT.

Lawyers are affected by section 33, which allows a testator to direct that a particular lawyer conduct the legal business of the estate. The trustee company is not liable for the lawyer’s misconduct, and the lawyer may be removed by the Supreme Court on application.

Other companies and corporations are not precluded from applying for similar powers (s 32), so the Act does not create a monopoly for existing trustee companies.

Duties of a trustee company: Section 19(1) provides that a trustee company is subject to the same respective rights, duties, and obligations to which an individual acting as executor, administrator, trustee, receiver, or guardian would be subject, in addition to the liabilities and restrictions imposed by the Act. This means the company must comply with the general law of trusts and administration, including duties of loyalty, prudence, impartiality, and to account. The company must also comply with court orders and rules.

Right to act as executor: Section 4 gives a trustee company the right to act as executor if named in a will or codicil, and to obtain probate. Section 8A confirms that once probate or administration is granted, the company may perform all acts and duties of the office.

Right to be appointed as trustee, receiver, or guardian: Section 11(1) allows a trustee company to be appointed wherever any court or person has the power to appoint such an officer. Section 11(2) allows it to act as sole trustee even if the trust instrument requires more than one trustee, subject to the instrument not expressly forbidding it.

Right to act under power of attorney: Section 12 permits a trustee company to act as attorney under a power of attorney. The powers may be exercised by the managing director, manager, or two directors. The company’s assets are liable for due execution.

Right to appoint a temporary substitute: Section 13 allows an executor, administrator, or trustee to appoint a trustee company to act in their place by deed filed in accordance with power of attorney filing laws. The company may then act as effectually as the principal. Importantly, acts done in favour of a bona fide purchaser without notice of the principal’s death or revocation are valid even if the authority has been revoked.

Right to delegate all duties: Section 14 allows an executor, administrator, trustee, receiver, or guardian (with Supreme Court consent) to appoint a trustee company to exercise and discharge all their acts and duties. Upon appointment, the company’s assets become liable, and the appointer is released from liability for acts done or omitted by the company (s 14(3)). This is a comprehensive delegation mechanism.

Right to attend by officer: Section 16 provides that where personal attendance of the fiduciary is required, the trustee company may attend by its managing director or manager.

Right to hold property as joint tenant: Section 19A gives the company the same capacity as an individual to hold property as joint tenant.

Protection against involuntary transfer: Section 34B ensures that when ASIC orders a transfer of estate assets and liabilities to another licensed trustee company, the transfer is not a breach of contract or an event of default. This protects the receiving company and the beneficiaries.

Testator’s right to direct legal business: Section 33 gives effect to a testator’s direction that a particular lawyer conduct the legal business of the estate. The lawyer is entitled to do so, and the trustee company is not liable for the lawyer’s misconduct (negligence, misfeasance, nonfeasance). The lawyer may be removed by the Supreme Court.

Duty to give public notice: Under section 15(1), a person intending to apply for Supreme Court consent under section 14 must give public notice (on an ACT government website or in a daily newspaper) at least seven days before the application. The court may also require service on persons entitled to income or corpus (s 15(2)).

Liability for cost of application: Section 15(3) gives the court discretion on costs of the application, which may be ordered out of the estate.

The Trustee Companies Act 1947 does not itself create criminal offences (except through the regulation-making power). No provision in the Act as currently in force carries a penalty expressed in penalty units. Historically, sections 22, 26, 28, and 31 did impose penalties, but these were all repealed by the Justice and Community Safety Legislation Amendment Act 2009 (No 4) (A2009-54). The only residual penalty mechanism is found in section 35(2), which provides that regulations may prescribe offences for contraventions of the regulations and prescribe maximum penalties of not more than 10 penalty units. At the republication date, a penalty unit was $150 for an individual and $750 for a corporation (see note on page 1 of the republication). Thus, any monetary penalty currently applicable under this Act must be created by regulation.

Enforcement in the Act relies primarily on court orders and personal liability rather than fines. The principal enforcement tools are:

• Liability of company assets: Sections 10, 11(6), 12, 14(3), and 17(2) all make the paid and unpaid capital and all other assets of the trustee company liable for the proper discharge of duties. This means beneficiaries or other interested persons can seek compensation from the company’s assets for losses caused by improper administration.

• Personal responsibility of managers and directors: Section 17(1) makes the manager and directors individually and collectively responsible to the Supreme Court, and liable by process of attachment, commitment for contempt, or other process, as if they had personally obtained probate or administration. This exposes senior officers to contempt proceedings if they fail to comply with court orders or rules. Section 19(2) limits this personal liability to each person’s own individual act (not collective for all acts), but the liability remains potent.

• Removal from office: Section 20(1) provides that a trustee company acting as executor, administrator, trustee, receiver, guardian, or attorney is subject to the same control and liable to removal as a private individual. Any person claiming relief may proceed in the Supreme Court against the company or its directors or officers (s 20(2)), and the court may make any order it considers appropriate (s 20(3)). This includes removal, compensation, or other remedies.

• Restriction on winding-up: Section 23(1) prohibits voluntary winding-up of a trustee company while any estate in relation to which it acts remains unadministered, except with the approval of the Supreme Court. Section 23(2) allows any interested person to apply to the court to restrain a director or shareholder from disposing of shares, or to restrain the voluntary winding-up, and the court may make any order it considers appropriate. This prevents a trustee company from escaping its fiduciary obligations through corporate restructure.

• Liability under s 14(3): When an executor or administrator appoints a trustee company under section 14, the company becomes liable, and the appointor is released. The company’s assets are liable for proper discharge.

• No bond or security required: Section 11(7) provides that no bond, recognisance, or other security for the proper discharge of duties is required from a trustee company when appointed under section 11. This is a concession , the company’s assets and the personal liability of officers substitute for traditional fiduciary bonds.

Thus, enforcement is achieved through court supervision and the threat of personal contempt and corporate liability, rather than statutory fines.

Corporations Act 2001 (Cwlth): This is the most significant interaction. The dictionary defines “trustee company” by reference to the Corporations Act 2001, chapter 5D. A reference to the Corporations Act includes the Act as originally made and as amended (see Legislation Act 2001, s 102). Chapter 5D of the Corporations Act establishes the licensing regime for trustee companies, including obligations to hold an Australian financial services licence, conduct audits, and report. Section 34B of this Act directly adopts the transfer determination provisions under Corporations Act s 601WBA, allowing ASIC to order a transfer of estate assets and liabilities when a licence is cancelled. The note to section 34B points out that ASIC may make compulsory or voluntary transfer determinations. The definition of “books” in the dictionary is a signpost to the Corporations Act, section 9. The definition of “officer” is also drawn from the Corporations Act, section 9 (via the dictionary).

Legislation Act 2001 (ACT): This Act applies to the interpretation of the Trustee Companies Act. Section 3 notes that notes are explanatory and not part of the Act (see Legislation Act, s 127(1), (4), (5)). The dictionary notes that the Legislation Act contains definitions and other relevant provisions, including definitions of “bank”, “corporation”, “Executive”, “lawyer”, “Minister”, “person”, and “Supreme Court”. The note to section 15(1) explains that “public notice” means notice on an ACT government website or in a daily newspaper circulating in the ACT, as defined in the Legislation Act dictionary, part 1. The regulation-making power in section 35 requires regulations to be notified and presented to the Legislative Assembly under the Legislation Act.

Supreme Court Act 1933 (ACT) and rules of court: The Act repeatedly refers to the Supreme Court’s jurisdiction to grant probate, letters of administration, and consent under section 14. The court’s practice and procedure are governed by its own rules. Section 9 allows the court to receive an affidavit from the managing director or manager instead of an affidavit from an individual applicant. Section 17(1) subjects managers and directors to attachment, commitment for contempt, or other process in the same way as if they had personally obtained the grant.

Trust law generally: Section 19(1) imports the general law of trusts and administration , the duties, rights, and obligations of an individual acting as executor, administrator, trustee, receiver, or guardian apply to the company. This includes equitable duties of loyalty, care, and impartiality, and the obligation to invest prudently. The Act does not override the general law except where expressly provided (e.g., ability to act as sole trustee despite a requirement for more than one trustee , but that ability is still subject to the instrument not forbidding it, s 11(2), (5)).

Powers of attorney legislation: Section 13 refers to “any law providing for the filing of powers of attorney” , in the ACT, the Powers of Attorney Act 2006 (and previously other instruments). The filing requirement must be satisfied for the temporary appointment under section 13 to be effective.

Civil Law (Property) Act 2006 (ACT): Section 19A of this Act permits a trustee company to hold property as joint tenant with an individual. This interacts with property law rules on joint tenancy and survivorship. Section 19A(2) provides that on dissolution of the company, the property devolves on the other joint tenant , which is consistent with the right of survivorship.

Financial Sector Reform (ACT) Act 1999: Historical amendments (see amendment history) show that this Commonwealth Act amended the definition of “bank” and other references, but those provisions are now repealed.

Self-Government (Citation of Laws) Act 1989: This Act converted the former Commonwealth ordinance into an ACT enactment.

The Trustee Companies Act 1947 originated as a Commonwealth ordinance , the Trustee Companies Ordinance 1947 No 15 (Cwlth) , notified on 18 December 1947 and commencing that day. It became an ACT enactment on 11 May 1989 (self-government day) by operation of the Australian Capital Territory (Self-Government) Act 1988 (Cwlth), s 34(4). Its name was changed from “Ordinance” to “Act” by the Self-Government (Citation of Laws) Act 1989 (A1989-21), s 5.

Major structural amendments occurred over the decades. The ordinance was amended frequently between 1954 and 1988, including by the Companies Ordinance 1954, Trustee Companies Ordinance 1954, and subsequent ordinances in 1960, 1961, 1962, 1965, 1966, 1968, 1982, 1984, 1985, 1988, and 1989. These amendments updated references, adjusted penalties, and refined definitions.

After self-government, the Act was amended by ACT legislation. The Trustee Companies (Amendment) Act 1992 (A1992-49) was significant: it substituted sections 5 through 8 (authorisation provisions), inserted section 8A (capacity), and inserted sections on common trust funds (ss 25B-25J). The Trustee Companies (Amendment) Act 1993 (A1993-53) made further adjustments. The Statute Law Revision Act 1995 (A1995-46) amended definitions. The Legal Practitioners (Consequential Amendments) Act 1997 (A1997-96) substituted references to “legal practitioner” with “lawyer”. The Statute Law Revision (Penalties) Act 1998 (A1998-54) updated penalty units.

The Financial Sector Reform (ACT) Act 1999 (A1999-33) removed the definition of “bank”. The Legislation (Consequential Amendments) Act 2001 (A2001-44) renumbered sections, inserted a note (s 3), and added approved forms provisions. The Statute Law Amendment Act 2001 (No 2) (A2001-56) amended contributory investments provisions (since repealed). The Sexuality Discrimination Legislation Amendment Act 2004 (A2004-2) amended section 21 (since repealed). The Justice and Community Safety Legislation Amendment Act 2005 (No 3) (A2005-43) substituted the dictionary and made numerous amendments to language (e.g., substituting “manager” for “general manager”, updating “child” references).

The Justice and Community Safety Legislation Amendment Act 2009 (No 4) (A2009-54) was transformative. It repealed around 20 sections: s 18 (estate fees), s 18A (fees for preparation of returns), s 18B (fees generally), s 21 (order for account), s 22 (Supreme Court may order audit), s 24 (restriction on classes of business), s 25 (separate accounts), s 25A (contributory investments), ss 25B-25J (common trust funds), s 26 (improper dealings), s 27 (power to deposit), s 28 (payment of money unclaimed), s 29 (persons entitled may apply subsequently), s 30 (order for account on application of Minister), s 31 (quarterly financial declarations), s 31A (information for Minister), s 31B (inquiries and audits), s 34 (incorporation and powers), s 34A (approved forms), s 36 (transitional), and Schedule 1 (specified trustee companies). It also substituted the definition of “trustee company” to refer to the Corporations Act chapter 5D, inserted a transitional provision (s 37), and repealed Schedule 2 (quarterly financial declaration). This streamlined the Act by removing regulatory and accounting provisions, leaving the core capacity and liability framework.

Subsequent amendments were minor. The Justice and Community Safety Legislation Amendment Act 2010 (A2010-13) inserted section 34B (transfer determinations). The Justice and Community Safety Legislation Amendment Act 2012 (A2012-13) amended the heading and text of s 34B. The Statute Law Amendment Act 2012 (A2012-21) made technical amendments. The Red Tape Reduction Legislation Amendment Act 2015 (A2015-33) amended section 15 (application for consent) to replace the requirement for notice in the “Canberra Times” with a generic “public notice” (on a government website or in a daily newspaper circulating in the ACT), and made a dictionary amendment. This authorised republican on 14 October 2015 is the current version.

The source text , the Act itself and its republication notes , does not cite any decided cases. No litigation history is provided in the endnotes. However, from the provisions, one can infer the types of disputes that might arise. The Act creates several points of potential court involvement:

• Applications for probate or administration: Sections 5-8 contemplate the Supreme Court granting (or refusing) applications where a trustee company is involved. A court might have to interpret whether a testator’s will “expressed the desire” that a trustee company not act (e.g., s 5(2)). Although no cases are mentioned in the source, such interpretive questions could generate litigation.

• Applications for consent under s 14: The Supreme Court must consent before an executor or administrator may appoint a trustee company to discharge all duties. Section 15(4) prohibits the court from giving consent if the testator expressed a wish against delegation. The requirement for public notice and the court’s discretion on costs could lead to contested applications.

• Removal from office under s 20: The Act provides that a trustee company is subject to the same control and removal as a private individual. Any person claiming relief may proceed against the company or its officers, and the court may make any order it considers appropriate. Disputes over maladministration, conflict of interest, or failure to perform duties could result in removal proceedings.

• Personal liability of managers and directors: Sections 17 and 19(2) expose managers and directors to attachment, commitment for contempt, and other process. Contempt applications could arise if court orders are breached. There may be attempts to enforce personal liability for pecuniary loss under s 17(2).

• Restraint of winding-up or share disposal under s 23: Interested persons may apply to the Supreme Court to restrain a voluntary winding-up or disposal of shares while estates remain unadministered. Such applications could involve factual disputes about the status of administration.

• Transfer determinations under s 34B: While ASIC’s determination is under the Corporations Act, any challenge to the transfer or its effect under this Act could be litigated in the Supreme Court. However, s 34B(4) expressly states that the transfer is not a breach of contract or an event of default, which may limit challenges.

• Joint tenancy: Section 19A clarifies that dissolution of a corporate joint tenant devolves property to the other joint tenant. Disputes over the validity of the joint tenancy or the effect of dissolution could arise.

Despite these potential areas, the Act itself provides no citation of any case law. The legislative history shows no case law annotations. Practitioners should be aware that the Supreme Court of the ACT has inherent jurisdiction over trusts and probate, and may have developed case law on the interpretation of these provisions, but that is not part of the source.

• Testator’s express wish overrides: A trustee company cannot be appointed or act if the testator has expressed in the will a desire that the office should not be delegated, or that a trustee company (or that particular company) should not act. This is a recurring theme: ss 5(2), 6(2), 7(2), 11(4), 11(5), 15(4). A careful review of the will is essential before any appointment or authorisation.

• No sole trustee if instrument expressly requires additional trustee: Section 11(5) prohibits a trustee company from acting as sole trustee if the trust instrument expressly provides that there shall be another trustee in addition to a trustee company, or that a trustee company shall not act as sole trustee. Even if the instrument is silent on the number of trustees, the company can act alone (s 11(2)), but if it requires an extra trustee, that requirement must be respected.

• Personal liability of directors and manager for contempt: Section 17(1) makes the manager and directors individually and collectively responsible to the Supreme Court, as if they had personally obtained probate or administration. This is a powerful enforcement tool. It is not limited to financial liability , they can be attached or committed for contempt. Section 19(2) limits this to each person’s own individual act, but that still exposes each officer to personal court orders.

• Company assets remain liable despite personal liability: Section 17(2) expressly preserves the liability of the company’s capital and assets for any pecuniary loss caused through imperfect or improper discharge, even though managers and directors are personally answerable. The company cannot argue that personal responsibility replaces corporate liability.

• No voluntary winding-up without court approval: Section 23(1) prohibits voluntary winding-up while an estate remains unadministered, unless the Supreme Court approves. This applies even if the company wishes to exit the trustee business. The court can also restrain disposal of shares (s 23(2)). This means a company cannot simply dissolve to avoid fiduciary obligations.

• Testator’s choice of lawyer overrides trustee company’s rights: Under section 33, if a testator directs by will that a particular lawyer conduct the legal business of the estate, the lawyer is entitled to do so. The trustee company cannot ignore this direction, and it is not liable for the lawyer’s misconduct. However, the company or any interested person can apply to remove the lawyer for misconduct.

• No bond required for trustee appointments: Section 11(7) provides that no bond, recognisance, or other security is required from a trustee company when appointed as trustee, receiver, or guardian under section 11. This is a benefit, but it means beneficiaries have no separate surety , they rely on the company’s assets and the personal liability of officers.

• Public notice required for s 14 applications: Section 15(1) requires at least seven days’ public notice of an intention to apply for Supreme Court consent under section 14. Failure to give proper notice could invalidate the application. The notice must be on an ACT government website or in a daily newspaper circulating in the ACT.

• Act does not preclude other companies from seeking similar powers: Section 32 provides that nothing in the Act entitles a trustee company to oppose the granting of similar powers to any other company or corporations generally. Existing trustee companies cannot use the Act to block competitors.

• Implication for joint tenancy on dissolution: Section 19A(2) states that if a trustee company that is a joint tenant of property is dissolved, the property devolves on the other joint tenant. This overrides the usual rule that a corporation cannot hold joint tenancy, but the dissolution triggers survivorship to the individual. Practitioners should ensure that the other joint tenant is aware of this consequence.

• Transfer determination overrides contractual restrictions: Section 34B(4) provides that the operation of the transfer is not to be regarded as a breach of contract, confidence, civil wrong, or event of default. This means that contracts with third parties (e.g., leases, investment agreements) cannot prevent the transfer of estate assets to the receiving company.

• Regulation-making power limited: Section 35(2) allows regulations to prescribe offences with maximum penalties of not more than 10 penalty units. At the republication date, that is $1,500 for an individual and $7,500 for a corporation. This is a relatively low cap, so significant non-compliance cannot be deterred by high fines under this Act alone (though other laws may apply).

• Dictionary reliance on Corporations Act: The definition of “trustee company” is dynamic , it changes if the Corporations Act definition changes. This means the Act’s scope expands or contracts without direct amendment. Practitioners must monitor Commonwealth amendments to chapter 5D.

• Historical provisions still in force only where not repealed: Many sections were repealed in 2009. The Act no longer contains provisions on common trust funds, estate fees, audits, or quarterly financial declarations. Reliance on those provisions is misplaced.

Compliance with the Trustee Companies Act 1947 requires a trustee company and its officers to follow the statutory procedures for appointment, authorisation, and delegation, and to maintain the financial and personal accountability that the Act imposes.

• Confirm licensing: Ensure the company holds a valid licence under the Corporations Act 2001 (Cwlth), chapter 5D. Without this, it is not a “trustee company” for the purposes of the Act and cannot exercise the powers it confers.

• Check the will or trust instrument: Before acting as executor or administrator, review the will to ensure the company is named (expressly or by implication) under section 4, or that the person entitled to probate has authorised the company under sections 5-8. Verify that the testator has not expressed a desire against delegation or against the particular company. If the testator’s wish precludes involvement, the company cannot act regardless of convenience.

• Obtain court grants: For probate or letters of administration, apply to the Supreme Court. Section 9 permits the court to act on an affidavit from the managing director or manager instead of from an individual applicant. This is a procedural convenience; the affidavit must meet the usual requirements for probate.

• Apply for consent under s 14 when delegating: If an executor or administrator wishes to appoint a trustee company to discharge all their duties, they must obtain the Supreme Court’s consent. The applicant must give public notice at least seven days before the application (s 15(1)), and the court may require service on persons entitled to income or corpus (s 15(2)). The court will not consent if the testator expressed a wish against delegation (s 15(4)).

• Use proper documentation for temporary appointments: Under section 13, an executor, administrator, or trustee may appoint a trustee company to act in their place by deed filed in accordance with any law providing for the filing of powers of attorney. The deed must be properly executed and filed to be effective. After filing, the company’s acts within the scope of authority are valid even after the principal’s death, in favour of bona fide purchasers without notice (s 13).

• Maintain sufficient assets: The company must ensure that its paid and unpaid capital and all other assets are sufficient to cover potential liabilities for the proper administration of estates (ss 10, 11(6), 12, 14(3), 17(2)). Directors should monitor the company’s financial position and consider insurance.

• Ensure officers understand personal responsibility: The managing director, manager, and assistant manager, as well as directors, should be aware that they are individually and collectively responsible to the Supreme Court (s 17(1)). They may be liable for contempt or other process. Section 19(2) limits their personal liability to their own individual acts, but they must not participate in decisions that lead to improper administration.

• Comply with court orders and rules: The company and its officers must obey all rules, orders, and decrees of the Supreme Court. Failure may lead to attachment or commitment for contempt.

• Do not voluntarily wind-up without approval: If the company is acting as executor, administrator, trustee, receiver, or guardian for an unadministered estate, it cannot voluntarily wind up without the Supreme Court’s approval (s 23(1)). Directors should not propose a winding-up resolution without first obtaining court clearance. Similarly, any interested person may apply to restrain disposal of shares (s 23(2)).

• Respect testator’s direction on lawyers: If the will directs that a particular lawyer conduct the estate’s legal business, the trustee company must allow that lawyer to do so (s 33). The company is not liable for the lawyer’s misconduct, but may apply for removal of the lawyer if misconduct occurs.

• Handle transfer determinations: If ASIC cancels the company’s licence and makes a transfer determination under the Corporations Act, the company must cooperate with the transfer to the receiving company. Section 34B effects the transfer automatically when the certificate is in force. The company should not treat the transfer as a breach of contract or try to resist it.

• Adhere to public notice requirements: For s 14 applications, ensure public notice is given at least seven days prior on an ACT government website or in a daily newspaper circulating in the ACT. Keep records of the notice.

• Keep abreast of legislative changes: The Act depends on definitions from the Corporations Act and the Legislation Act. Monitor amendments to those Acts. Also check the ACT legislation register for any new regulations made under s 35.

• No bond required, but consider other safeguards: Section 11(7) exempts trustee companies from giving bonds or other security when appointed under s 11. However, the company may still choose to provide additional security to reassure beneficiaries. The absence of a bond does not reduce the company’s liability.

• Avoid opposing other companies’ applications: Section 32 prohibits a trustee company from opposing the grant of similar powers to any other company or corporations generally. Do not file objections based solely on the existence of this Act.

• Document all steps: Keep records of the grant of probate or administration, any Supreme Court consent, public notices, deeds of appointment, and correspondence. This documentation will be essential if the court later examines the company’s conduct or if a claim for relief is made under s 20.