This Act lets licensed trustee companies serve as executors, administrators and other fiduciaries, giving them express management powers, streamlined options for small or unadministered estates, and statutory recognition of company-issued evidence. It makes company capital (and in some appointments certain officers) liable for proper administration, requires reporting and handover of long-unclaimed monies to the State Treasurer, and treats ASIC-ordered transfers between licensed trustee companies as legal successions—shifting administrative burden, liability exposure and regulatory oversight onto trustee companies.
The Trustee Companies Act 1964 establishes a statutory framework under which licensed trustee companies may be appointed to perform fiduciary functions that would otherwise fall to natural persons. At its core the Act confers upon trustee companies the capacity to act as executor, administrator (with or without the will annexed), trustee, receiver, committee or manager of the estate of a mentally ill or incapable person, guardian of a minor’s estate, or attorney under power of attorney (ss 4, 5, 6, 8, 11, 13).
Section 4 permits a trustee company named as executor in a will or codicil (whether executed before or after commencement) to apply for and obtain probate and to discharge all executor duties “as fully and effectively as any other executor”. Section 5 allows a named executor who would otherwise be entitled to probate to authorise the trustee company to apply instead for administration with the will annexed, subject only to any contrary direction in the will. Section 6 extends this to grants of letters of administration in intestacy or where the will is annexed, either jointly with a natural person or solely upon that person’s authorisation. Once appointed, s 8 provides that the trustee company’s corporate status is no bar to the performance of administrator functions.
The Act further authorises appointment as trustee, receiver or guardian where a court or other person possesses the relevant power (s 11(1)). A trustee company may act as sole trustee notwithstanding any requirement for multiple trustees in the trust instrument, subject to express prohibitions (s 11(2)–(5)). Where it acts jointly with individuals, the retirement provisions of trustee legislation treat the company as equivalent to two trustees (s 11(3)). Property held jointly with another fiduciary or mortgagee is deemed to be held as joint tenants, not tenants in common, unless the contrary is stated (s 12).
Current sections
Direct links to the current provisions in Trustee Companies Act 1964.
(2) This Act shall commence upon a day to be appointed by the Governor and notified by proclamation published in the Gazette.
2
2
2 (Repealed)
3
Interpretation
3 Interpretation
3 Interpretation
(1) In this Act, unless the contrary intention appears:
Corporation has the same meaning as in the Corporations Act 2001 of the Commonwealth.
Court means Supreme Court.
Manager includes general manager and acting manager.
Minor means a person under the age of 18 years.
Regulations means regulations under this Act.
Related corporation of a body corporate means a body corporate that is related to that body corporate within the meaning of section 50 of the Corporations Act 2001 of the Commonwealth.
Trustee company means a licensed trustee company within the meaning of Chapter 5D of the Corporations Act 2001 of the Commonwealth.
(2) The powers conferred on trustee companies by this Act shall be in addition to and not in derogation of any powers conferred on trustee companies or on executors administrators or trustees by any other Act or the Corporations Act 2001 of the Commonwealth.
(3)–(9) (Repealed)
(10) Unless the contrary intention appears, words and expressions used in this section have the same meanings as they have in the Corporations Act 2001 of the Commonwealth.
(11) A note included in this Act does not form part of this Act.
s 3: Am 1970 No 60, First Sch; 1972 No 45, sec 2 (a), Sch; 1982 No 61, Sch 2 (1); 1985 No 88, Sch 1 (1); 1996 No 24, Sch 1; 2000 No 39, Sch 1 [1]; 2001 No 34, Sch 2.56 [1]–[9]; 2009 No 109, Sch 1 [2]–[5].
Part 2
Management of estates by trustee companies
Part 2 Management of estates by trustee companies
Part 2 Management of estates by trustee companies
pt 2, hdg: Ins 1985 No 88, Sch 2 (2).
4
Trustee company may act as executor and obtain probate
4 Trustee company may act as executor and obtain probate
4 Trustee company may act as executor and obtain probate
Where a trustee company is named either alone or jointly with any other person as executor in the last will or in any codicil thereto of any testator (whether the will or codicil was made before or after the commencement of this Act) that trustee company may act as executor and may apply for and obtain probate of such will and any codicil thereto and may perform and discharge all the acts and duties of an executor as fully and effectively as any other executor.
5
Person named as executor may authorise trustee company to take out administration c.t.a.
5 Person named as executor may authorise trustee company to take out administration c.t.a.
5 Person named as executor may authorise trustee company to take out administration c.t.a.
Any person named expressly or by implication as executor who would be entitled to obtain probate of the will of any testator without leave being reserved to any other person to apply for probate may, instead of applying for probate, authorise a trustee company to apply for administration with the will annexed and a grant of administration with the will annexed may be made to the trustee company upon its own application when so authorised unless the testator by the will directed or intimated that the office of executor should not be delegated or that a trustee company should not act in the trusts of the will.
s 5: Rep 1979 No 186, Sch 1 (1). Ins 1985 No 88, Sch 2 (3).
6
Trustee company may be authorised to obtain letters of administration
6 Trustee company may be authorised to obtain letters of administration
6 Trustee company may be authorised to obtain letters of administration
(1) In any case in which a person may apply for and obtain a grant of letters of administration of the estate of a deceased person (whether with or without the will annexed), that person may:
(a) join with a trustee company in an application for a grant of letters of administration of the estate to that person and the trustee company jointly, or
(b) instead of applying, authorise a trustee company to apply for and obtain a grant of letters of administration of the estate.
(2) Where:
(a) a person joins with a trustee company in an application pursuant to subsection (1) (a), or
(b) a trustee company makes an application that it has, pursuant to subsection (1) (b), been authorised to make,
the Court may grant letters of administration of the estate in accordance with the application.
s 6: Am 1972 No 45, Sch. Subst 1979 No 186, Sch 1 (2).
7
7
7 (Repealed)
8
Trustee company may act as administrator notwithstanding its incorporation
8 Trustee company may act as administrator notwithstanding its incorporation
8 Trustee company may act as administrator notwithstanding its incorporation
Where administration of any estate with or without the will annexed is granted to a trustee company either alone or jointly with any other person that trustee company may do and perform all acts and duties which belong to the office of administrator or administrator with the will annexed, as the case may be, notwithstanding its incorporation.
9
Court to act on affidavit of managing director etc
9 Court to act on affidavit of managing director etc
9 Court to act on affidavit of managing director etc
In all cases in which a trustee company is empowered by this or any other Act to apply for probate of any will or letters of administration in respect of the estate of any deceased person the Court may receive and act upon an affidavit by the managing director, manager, assistant manager or the secretary, or by such other officer of the trustee company as may from time to time be appointed by the board of directors of the trustee company for that purpose in place of any affidavit required by any Act or rule of Court to be made by the person making application for probate or for letters of administration.
s 9: Am 1972 No 45, Sch.
10
Assets of trustee company liable for proper administration of estates
10 Assets of trustee company liable for proper administration of estates
10 Assets of trustee company liable for proper administration of estates
All the capital both paid and unpaid and all other assets of any trustee company shall be liable for the proper administration of all estates of which the trustee company acts as executor or administrator.
s 10: Am 1972 No 45, Sch; 1982 No 61, Sch 2 (2). Subst 1989 No 42, Sch 1 (1).
11
Company may be appointed trustee, receiver, committee, manager or guardian
11 Company may be appointed trustee, receiver, committee, manager or guardian
11 Company may be appointed trustee, receiver, committee, manager or guardian
(1) Where any court, judge or other person has power to appoint any person as:
(a) trustee,
(b) receiver,
(c) committee of the estate of a mentally ill person or manager of the estate of an incapable person within the meaning of the Mental Health Act 1958, or
(d) guardian of the estate of a minor,
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 one trustee to perform the trust.
(3) Where a trustee company and one or more individuals are co-trustees, any one or more of such individuals may retire, and the trustee company shall for the purposes of any Act now or hereafter in force relating to the retirement of trustees and the vesting of 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.
(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 shall not be appointed or act as sole trustee.
(6) In every case in which a trustee company is appointed or acts in any of the offices mentioned in subsection (1) all the capital of the trustee company, both paid and unpaid, and all other assets of the trustee company and the directors, manager and assistant manager thereof and their respective estates shall be individually and collectively responsible for the proper discharge during the respective tenures of their offices as directors, manager and assistant manager respectively, of their duties of the office in which the trustee company was appointed or acted.
(7) No bond recognizance or other security for the proper discharge of such duties shall be required to be given by or on behalf of the trustee company.
s 11: Am 1970 No 60, First Sch; 1979 No 186, Sch 2 (2); 1982 No 61, Sch 2 (3).
12
Property vested in trustee company and another as trustees to be held jointly
12 Property vested in trustee company and another as trustees to be held jointly
12 Property vested in trustee company and another as trustees to be held jointly
Where any property is vested in a trustee company and an individual or in a trustee company and another body corporate to the intent that they should hold the same jointly in any fiduciary capacity or as mortgagees they shall be deemed to be joint tenants thereof and not tenants in common unless otherwise expressly provided.
13
Trustee company may act under power of attorney by managing director etc
13 Trustee company may act under power of attorney by managing director etc
13 Trustee company may act under power of attorney by managing director etc
It shall be lawful for a trustee company to act, either alone or jointly with any other person under any power of attorney by which such trustee company is appointed attorney by any person or by any company or corporation and all the powers conferred upon such trustee company by such power of attorney may be exercised and carried into execution by the managing director, manager, assistant manager or secretary or by such other officer of the trustee company as may from time to time be appointed by the board of directors for the purpose or by any 2 directors of the trustee company; but in all cases the capital, both paid and unpaid, and all other assets of the trustee company, shall be liable for the due execution of the powers so conferred on the trustee company: Provided that nothing in this section shall be deemed to authorise any person, company or corporation to confer any power upon the trustee company which cannot by law be delegated or performed by an attorney.
s 13: Am 1982 No 61, Sch 2 (4).
14
Power to delegate trusts to trustee company
14 Power to delegate trusts to trustee company
14 Power to delegate trusts to trustee company
It shall be lawful for an executor, administrator or trustee to delegate by deed to a trustee company either alone or jointly with any other corporation or person, as his or her attorney, all such trusts and powers as may by law be delegated, and all acts done by the trustee company within the scope of such delegation shall, in favour of any persons dealing with the trustee company without notice of the death of, or revocation of authority by, such executor, administrator or trustee, be valid and effectual notwithstanding such death or revocation.
15
Power to appoint trustee company to discharge duties of executor etc
15 Power to appoint trustee company to discharge duties of executor etc
15 Power to appoint trustee company to discharge duties of executor etc
It shall be lawful for the Court, on the application of any executor or administrator acting under any probate or letters of administration granted either before or after the commencement of this Act, to appoint a trustee company, either alone or jointly with any other corporation or person, to be administrator in his or her place or stead, and thereupon the company shall have the same powers and authorities as if it had been the original executor or administrator as the case may be; and in every such case the capital, both paid and unpaid, and all other assets of the trustee company, and the directors, manager and assistant manager thereof and their respective estates shall be individually and collectively liable for the due administration during the respective tenure of their respective offices of the estates of which the trustee company is so appointed administrator.
s 15: Am 1972 No 45, Sch.
15A
Election to administer where no previous executor or administrator
15A Election to administer where no previous executor or administrator
15A Election to administer where no previous executor or administrator
(1) A trustee company may file an election to administer the estate of a deceased person who died testate or intestate in the registry of the Court, instead of applying for probate or administration, if:
(a) the gross value of the estate in New South Wales, as estimated by the trustee company, is less than the amount prescribed by the regulations for the purposes of this section, and
(b) no person has obtained probate of the estate or taken out administration, and
(c) the trustee company is entitled to obtain probate or administration.
(2) An election must be sealed by the trustee company and must set out:
(a) the name, residence and occupation (as far as it is known to the trustee company) of the deceased person, and
(b) particulars of property forming the deceased person’s estate, and
(c) the date of the deceased person’s death as then known to the trustee company, and
(d) if the deceased person died testate, state that, after due inquiries, the trustee company believes that the document annexed to the election is the testator’s last will and that the will has been validly executed according to the law governing the execution of wills.
(3) On an election being filed, the trustee company is taken to have been appointed by the Court as the executor of the estate or the administrator of the estate.
s 15A: Ins 1979 No 186, Sch 1 (3). Subst 2009 No 49, Sch 2.60.
15AA
Election to administer where previous executor or administrator
15AA Election to administer where previous executor or administrator
15AA Election to administer where previous executor or administrator
(1) A trustee company may file an election to administer the unadministered property of the estate of a deceased person who died testate or intestate in the registry of the Court, instead of taking out administration de bonis non, if:
(a) the executor or administrator of the estate has died and no other person has taken out administration de bonis non in respect of the estate, and
(b) part of the estate is unadministered, and
(c) the gross value of the unadministered part of the estate in New South Wales is less than the amount prescribed by the regulations for the purposes of this section, and
(d) the trustee company is entitled to take out administration de bonis non.
(2) An election must be sealed by the trustee company and must set out:
(a) the fact of the original grant, and
(b) the fact of the death of the executor or administrator, and
(c) particulars of the property left unadministered.
(3) On an election being filed, the trustee company is taken to have been appointed by the Court as the administrator de bonis non of the unadministered part of the estate.
ss 15AA–15AD: Ins 2009 No 49, Sch 2.60.
15AB
Estate not small estate
15AB Estate not small estate
15AB Estate not small estate
(1) If, after an election takes effect under section 15A or 15AA, the trustee company becomes aware that the gross value of the estate or the unadministered estate exceeds the amount prescribed for the purposes of making an election, the trustee company must file a notice to that effect in the registry of the Court.
(2) The trustee company is not entitled to continue to administer the estate but must obtain probate or administration in the ordinary manner.
ss 15AA–15AD: Ins 2009 No 49, Sch 2.60.
15AC
Discovery of later will
15AC Discovery of later will
15AC Discovery of later will
(1) If, after an election takes effect under section 15A or 15AA, a later will, or a will, is found, the trustee company must file a notice to that effect in the registry of the Court.
(2) On filing the notice, the trustee company ceases to be the executor or administrator of the estate and may, if it is otherwise entitled to do so, obtain probate or administration in the ordinary manner or make a new election under section 15A or 15AA.
(3) If the trustee company does not obtain probate or letters of administration or make a new election, the Probate and Administration Act 1898 applies as if a grant of probate or administration to the trustee company had been revoked.
ss 15AA–15AD: Ins 2009 No 49, Sch 2.60.
15AD
Notice and form of elections and notices
15AD Notice and form of elections and notices
15AD Notice and form of elections and notices
(1) A trustee company must publish, in accordance with the regulations, notice of an election made by it under section 15A or 15AA or notice filed under section 15AB.
(2) An election under section 15A or 15AA or a notice under section 15AB is to be in the form (if any) prescribed by the rules of the Court and to contain the particulars prescribed by the regulations.
(3) A notice that complies with this section is evidence that the trustee company is entitled to administer an estate.
ss 15AA–15AD: Ins 2009 No 49, Sch 2.60.
15B
Maintenance etc of minor or incapable person
15B Maintenance etc of minor or incapable person
15B Maintenance etc of minor or incapable person
(1) In this section, incapable person, in relation to money in the hands of a trustee company, means a person who, in the opinion of the trustee company, is unable to give a good discharge.
(2) Where a minor or an incapable person is entitled to money in the hands of a trustee company, the trustee company may, notwithstanding any law to the contrary, from time to time:
(a) pay that money to such person as the trustee company thinks fit, to be applied by that person for the maintenance, education, advancement or benefit of the minor or incapable person, or
(b) so apply that money itself.
(3) A trustee company is not bound to see to the application of money paid to a person under subsection (2) (a).
(4) A trustee company may, at any time and from time to time, apply to the Court:
(a) for directions as to the administration of any money referred to in subsection (2),
(b) to vary directions which may already have been given in regard to that money, or
(c) to determine any matter relating to that money,
and any direction or determination of the Court shall, if given effect to by the trustee company, exonerate the trustee company from any claim or demand by any person.
(5) A reference in subsection (2) to a minor being entitled to money in the hands of a trustee company includes a reference to a minor who is entitled to that money contingently on attaining an age specified in the instrument creating the entitlement.
(6) The powers conferred on a trustee company by this section may be exercised by the trustee company in respect of money held by the trustee company to which a minor or incapable person is entitled even though the trustee company held the money before the commencement of this section.
s 15B: Ins 1979 No 186, Sch 1 (3). Am 1989 No 42, Sch 1 (2).
15C
General powers of trustee company
15C General powers of trustee company
15C General powers of trustee company
Where a trustee company is appointed trustee, executor or administrator or is otherwise authorised to act under this Act (whether before or after the commencement of this section), then, unless expressly prohibited by this Act or by or under an instrument, it may, at its discretion, but in addition to and not as restricting any other powers, exercise the following powers:
(a) sell property by public auction or private contract, altogether or in parts, and subject to such conditions as it thinks fit,
(b) postpone the sale, calling in and conversion of any property that it has a duty to sell, other than property that is of a wasting, speculative or reversionary nature,
(c) exchange property or join in a partition of property,
(d) lease property for a term not exceeding 10 years and give to a lessee an option of renewal if the aggregate duration of the lease and any such renewal does not exceed 10 years,
(e) enter into any share-farming agreement for a period not exceeding 3 years,
(f) for the purpose of preserving trust property, borrow money upon the security of the property, and secure the payment thereof and interest by mortgage or charge of the property, with or without a power of sale, and enter into such covenants, provisions and agreements as may be agreed upon by the trustee company and the mortgagee, and, without affecting the generality of the foregoing, exercise the power to give any such security in respect of any debt or liability incurred prior to the trustee company’s appointment, and pay interest secured by any such mortgage or charge out of the income or, if the income is insufficient, out of capital,
(g) repair property and charge the cost of those repairs either to capital or to income or apportion the cost between capital and income as the trustee company may consider equitable.
s 15C: Ins 1979 No 186, Sch 1 (3). Am 1989 No 42, Sch 1 (3); 1990 No 98, Sch 1 (1).
16
16
16 (Repealed)
17
Contributory investments
17 Contributory investments
17 Contributory investments
Where a trustee company holds moneys belonging to more than one estate upon trusts, which require or permit the investment thereof, it shall be lawful for the trustee company to invest such moneys as one fund, and to distribute the income arising therefrom rateably among the several estates to which the money so invested belongs; and any loss arising from any such investment shall likewise be borne rateably by the several estates.
Any such investment shall be made either in investments in which a trustee may invest trust funds in accordance with the Trustee Act 1925 or in investments authorised by each of the trust instruments.
s 17: Am 1979 No 186, Sch 2 (3); 1997 No 102, Sch 2.12.
17A
17A
17A–19F (Repealed)
20
Removal from office
20 Removal from office
20 Removal from office
A trustee company which has been appointed executor, administrator, trustee, receiver, committee, manager, guardian or attorney, whether before or after the commencement of this Act, shall be subject in all respects to the same control and to removal or restraint from acting and generally to the jurisdiction of the courts, in the same manner as any other executor, administrator, trustee, receiver, committee, manager, guardian or attorney.
20A
20A
20A–25 (Repealed)
26
Unclaimed moneys
26 Unclaimed moneys
26 Unclaimed moneys
(1) All moneys which form part of any estate of which a trustee company is executor, administrator or trustee and which remain unclaimed by the person entitled to the same for a period of 5 years after the time when the same became payable to that person, except where payment is restrained by injunction of a court of competent jurisdiction, shall, together with interest accrued thereon, be paid by the trustee company to the Treasurer to be placed to the credit of the testamentary and trust fund, distinguishing the particular estates in respect of which such moneys are paid.
(2) All moneys which were paid into the Treasury and placed to the credit of the testamentary and trust fund in accordance with directions contained in any of the Acts repealed by this Act and which, or the residue of which, immediately before the commencement of this Act, stood to the credit of the account in that fund of any particular estate shall, as from such commencement, be held by the Treasurer as if this Act had been in force at the time such moneys were so paid in, and this Act shall apply accordingly.
(3) All moneys for the time being in the testamentary and trust fund shall constitute one common fund and shall be available for investment as provided in this section.
(4) The Treasurer may from time to time invest the moneys to the credit of the testamentary and trust fund in:
(a) any Government debentures, stock or securities of the Commonwealth of Australia, or
(b) any debentures stock or securities guaranteed by the State of New South Wales.
(5) Interest received from investments from the common fund shall be credited to an account to be called the “interest account” within the testamentary and trust fund. Moneys for the time being in the interest account shall be kept separately from the common fund but may be invested in any of the investments authorised by subsection (4).
(6) The Treasurer shall determine from time to time the amount of interest which shall be allowed on the balances at credit of the account of any estate in the testamentary and trust fund and any such determination shall have regard to the interest earned by the testamentary and trust fund, and to the period during which such balances were included in that fund.
(7) All debentures, stock and securities constituting investments by the Treasurer under subsection (4) shall be purchased by the Treasurer as such without any name, addition or description and in all transfers of the debentures, stock and securities the Treasurer shall be so styled without any name, addition or description.
(7A) The Treasurer shall not pay over any money or sign any transfer of debentures, stock or securities standing to the credit of the testamentary and trust fund except in accordance with section 27 (2) or (4).
(7B) The Treasurer may realise any investments made under the authority of this section for the purpose of granting an application, or complying with an order of the Court, under section 27.
(8) Each trustee company shall at intervals of 6 months deliver to the Treasurer a statement of all unclaimed moneys as defined in subsection (1) which during the preceding 6 months have been in its hands, setting out:
(a) the estates in respect of which the same have been received, and
(b) the dates and amounts of the payments of the same to the Treasurer under this section.
(9) If the unclaimed moneys referred to in subsection (8) or any part thereof have not been paid to the Treasurer with a statement of the reason for the delay of such payments, or if default is made by the trustee company in compliance with the provisions of this section, the trustee company shall be liable to a penalty not exceeding 0.1 penalty unit for every day while such default continues, and every director, manager or assistant manager of the trustee company who knowingly and wilfully authorises or permits such default shall incur the like penalty.
(10) The period of 5 years referred to in subsection (1) and the period of 6 months referred to in subsection (8) respectively include a period before or after or partly before and partly after the commencement of this Act.
s 26: Am 1972 No 45, Sch; 1982 No 61, Sch 2 (9); 1986 No 121, Sch 1 (1); 1992 No 112, Sch 1.
27
Applications by persons entitled to trust funds
27 Applications by persons entitled to trust funds
27 Applications by persons entitled to trust funds
(1) Any person entitled to any money forming part of the testamentary and trust fund may:
(a) where the amount claimed is less than $10,000—apply in writing to the Treasurer requesting payment of the money to the person, or
(b) where the amount claimed is $10,000 or more—apply to the Court for an order directing payment of the money to the person.
(2) If the Treasurer is satisfied that an applicant under subsection (1) (a) is entitled to the whole or part of the amount claimed, the Treasurer may pay over any money standing to the credit of the testamentary and trust fund to which the person, in the Treasurer’s opinion, is entitled.
(3) An applicant under subsection (1) (a) whose claim the Treasurer has refused to accept in whole or in part may apply to the Court for an order directing payment of any money to which the applicant is entitled and which has not been paid to the applicant by the Treasurer.
(4) Where the Court makes an order directing payment of any money and specifies the amount which the claimant is entitled to be paid from the amount at credit of the particular estate in the testamentary and trust fund, the Treasurer shall not pay over any money or for that purpose sign any transfer of investments standing to the credit of the fund unless:
(a) a copy of the order and particulars of the name, addition or description of the claimant to whom the money is to be paid has been left at the office of the Treasurer, and
(b) the purchase money of any investments to be sold has been received by the Treasurer.
(5) If the Treasurer appears on an application to the Court under this section, the Treasurer shall be entitled to such costs against the applicant or out of the testamentary and trust fund as the Court may direct.
s 27: Am 1972 No 45, Sch. Subst 1986 No 121, Sch 1 (2).
28
Treasurer may apply for account
28 Treasurer may apply for account
28 Treasurer may apply for account
(1) The Treasurer may, after demand in writing made to the managing director, manager or assistant manager of a trustee company for a sufficient account of the property and assets of which any estate included in or which ought to be or to have been included in the statement of unclaimed moneys consists and of the disposal and expenditure thereof, apply to the Court for an account.
(2) If the Court is of opinion that no sufficient account has been rendered by the trustee company, the Court shall order such account to be rendered by the trustee company as to the Court seems fit, or if the Court is of opinion that in the circumstances the trustee company was not bound to furnish any account, or that any account furnished by the trustee company was sufficient, the Court may dismiss the application.
(3) The Court may make such order as to costs either against the trustee company or as to payment of costs out of the estate as the Court thinks fit.
s 28: Am 1972 No 45, Sch.
29
29
29–29E (Repealed)
30
Applications to Court
30 Applications to Court
30 Applications to Court
(1)–(4) (Repealed)
(5) The Court may order the costs and expenses of and incidental to any application under this Act to the Court to be paid or raised out of the estate in respect of which the same is made, or out of the income thereof, or to be borne and paid in such manner and by such persons as to the Court seems just.
s 30: Am 1972 No 45, Sch.
31
Managing director and others may represent trustee company
31 Managing director and others may represent trustee company
31 Managing director and others may represent trustee company
(1) In all cases in which the personal attendance of an executor, administrator, trustee, receiver, committee, manager or guardian is required in any court or elsewhere, a trustee company shall be entitled to make such attendance in the person of the managing director, manager, assistant manager or secretary or by such other officer of the trustee company as may from time to time be appointed by the board of directors for the purpose.
(2) All declarations, affidavits, statements of defence or other statements required by law to be made on oath may be made and sworn on behalf of a trustee company by the managing director, manager, assistant manager or secretary or by such other officer of the trustee company as may from time to time be appointed by the board of directors for the purpose.
(3)–(6) (Repealed)
s 31: Am 1982 No 61, Schs 1 (1), 2 (11); 1983 No 82, Sch 1 (1); 1985 No 231, Sch 28; 2009 No 109, Sch 1 [8].
Part 3
Part 3
Part 3
31A–31E (Repealed)
pt 3, hdg: Ins 1985 No 88, Sch 2 (6). Rep 2009 No 109, Sch 1 [9].
pt 3: Rep 2009 No 109, Sch 1 [9].
s 31A: Ins 1985 No 88, Sch 1 (2). Am 1992 No 112, Sch 1; 2000 No 39, Sch 1 [3]; 2001 No 34, Sch 2.56 [12] [13]. Rep 2009 No 109, Sch 1 [9].
s 31B: Ins 1985 No 88, Sch 1 (2). Subst 2001 No 34, Sch 2.56 [14]. Rep 2009 No 109, Sch 1 [9].
s 31C: Ins 1985 No 88, Sch 1 (2). Rep 2009 No 109, Sch 1 [9].
s 31D: Ins 1985 No 88, Sch 1 (2). Am 1992 No 112, Sch 1. Rep 2009 No 109, Sch 1 [9].
Part 4
Miscellaneous
Part 4 Miscellaneous
Part 4 Miscellaneous
pt 4, hdg: Ins 1985 No 88, Sch 2 (7).
32
Recovery of penalties
32 Recovery of penalties
32 Recovery of penalties
Any penalty imposed by this Act may be recovered in a summary way before the Local Court.
s 32: Am 1985 No 88, Sch 2 (8); 2007 No 94, Sch 4.
32A
Certificate evidence
32A Certificate evidence
32A Certificate evidence
(1) When a trustee company is executor or administrator, or is by law authorised to administer the estate of any deceased person, a certificate issued under the seal of the trustee company, certifying:
(a) that the trustee company has taken out probate or letters of administration, or is authorised to administer the estate, and
(b) the date when such probate or letters of administration was or were granted, or when and how the trustee company became authorised to administer the estate, and
(c) the name, residence and occupation of the deceased person,
is, despite any Act or other law to the contrary, to be accepted for all purposes as prima facie evidence (without production of any other proof):
(d) of the death of the deceased person, and
(e) of the appointment of the trustee company as executor or administrator, or of the right of the trustee company to administer the estate.
(2) If a trustee company is appointed and acts jointly with any other person (in this subsection referred to as co-administrator) as executor or administrator, a certificate issued under the seal of the trustee company, certifying:
(a) that the trustee company and such co-administrator have taken out probate or letters of administration, and
(b) the date when such probate or letters of administration was or were granted, and
(c) the name, residence and occupation of the deceased person,
is, despite any Act or other law to the contrary, to be accepted for all purposes as prima facie evidence (without production of any other proof):
(d) of the death of the deceased person, and
(e) of the appointment of the trustee company and the co-administrator as executors or administrators.
s 32A: Ins 1990 No 98, Sch 1 (2).
32B
32B
32B (Repealed)
33
Settlors or testators may appoint own solicitors
33 Settlors or testators may appoint own solicitors
33 Settlors or testators may appoint own solicitors
(1) Where by any settlement, will, codicil or other testamentary writing made before or after the commencement of this Act, a settlor or testator directs that any practising solicitor shall conduct the legal business of the settlor’s or testator’s estate, such solicitor shall be entitled to act therein accordingly, but in such case a trustee company shall not be liable for the negligence, misfeasance, nonfeasance or misconduct of such solicitor.
(2) Such solicitor may be removed by the Court upon the application of the trustee company or of any person interested in the said estate upon cause shown, and the Court may appoint a solicitor nominated by the trustee company in his or her place.
s 33: Am 1972 No 45, Sch.
34
Other companies may apply for similar powers
34 Other companies may apply for similar powers
34 Other companies may apply for similar powers
Nothing in this Act shall entitle a trustee company to oppose the granting of powers similar to those conferred upon trustee companies by this Act to any other company or to corporations generally, or to claim or to seek compensation in consequence of such powers being conferred upon any other company or upon corporations generally, or in the event of the repeal of this Act.
34A
Transfer determinations
34A Transfer determinations
34A Transfer determinations
(1) This section applies if:
(a) the Australian Securities and Investments Commission (ASIC) makes a determination under section 601WBA of the Corporations Act 2001 of the Commonwealth that there is to be a transfer of estate assets and liabilities from a specified trustee company (the transferring company) to another licensed trustee company (the receiving company), and
(b) ASIC issues a certificate of transfer under section 601WBG of that Act for the transfer, and
(c) either the transferring company or the receiving company (or both) is registered in New South Wales.
Note—
Section 601WBA of the Corporations Act 2001 of the Commonwealth enables ASIC to make a transfer determination if:
(a) ASIC has cancelled the licence of the transferring company (in which case the determination is called a compulsory transfer determination), or
(b) the transferring company has applied for such a determination (in which case the determination is called a voluntary transfer determination).
(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—
Section 601WBG of the Corporations Act 2001 of the Commonwealth 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 section 601WBG (2) (c) of the Corporations Act 2001 of the Commonwealth 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
(d) if the certificate includes provisions of the kind referred to in section 601WBG (3) of the Corporations Act 2001 of the Commonwealth specifying:
(i) that particular things are to happen or are taken to be the case—those things are, by force of this section, 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, by force of this section, 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.
s 34A: Ins 2009 No 109, Sch 1 [11]. Am 2011 No 8, Sch 1.9 [1] [2].
34B
Exemption from State tax
34B Exemption from State tax
34B Exemption from State tax
(1) In this section:
exempt matter means the transfer of the estate assets and liabilities of a transferring company to a receiving company under Division 2 of Part 5D.6 of the Corporations Act 2001 of the Commonwealth.
State tax means application or registration fees, duty under the Duties Act 1997 or any other tax, duty, fee or charge imposed by any Act or law of the State.
(2) State tax is not payable in relation to:
(a) an exempt matter, or
(b) anything done because of, or for a purpose connected with or arising out of, an exempt matter.
s 34B: Ins 2009 No 109, Sch 1 [11].
35
35
35–36B (Repealed)
37
Regulations
37 Regulations
37 Regulations
(1) The Governor may make regulations not inconsistent with this Act prescribing all matters which by this Act are required or permitted to be prescribed or which are necessary or convenient to be prescribed for carrying out or giving effect to this Act.
(2), (3) (Repealed)
s 37: Ins 1972 No 45, sec 2 (f). Am 1979 No 186, Sch 2 (5); 1985 No 88, Sch 2 (9); 1987 No 48, Sch 32; 2009 No 109, Sch 1 [13].
37A
37A
37A (Repealed)
38
Repeal of Act does not affect operation of savings and transitional provisions
38 Repeal of Act does not affect operation of savings and transitional provisions
38 Repeal of Act does not affect operation of savings and transitional provisions
(1) Despite the repeal of the Trustee Companies (Amendment) Act 1983, sections 3–5 of that Act continue to have effect and are taken to have been transferred to this Act.
Second Sch: Am 1969 No 6, sec 2; 1972 No 45, secs 3 (a), 4 (a); 1979 No 186, Sch 1 (11); 1982 No 61, Schs 1 (2), 2 (13); 1982 No 173, Sch 1 (2); 1983 No 82, Sch 1 (2); 1985 No 88, Sch 1 (3); 1986 No 121, Sch 1 (3); 1989 No 42, Sch 1 (8); 1992 No 34, Sch 2; 1999 No 85, Sch 2.72 [1]; GG No 10 of 12.1.2001, p 61; 2001 No 56, Sch 2.45; 2005 No 98, Sch 2.65 [1]; 2006 No 58, Sch 2.68 [3]; 2006 No 120, Sch 2.104 [1]; 2007 No 82, Sch 2.22 [4]. Rep 2009 No 109, Sch 1 [15].
Third Sch: Am 1969 No 6, sec 3; 1972 No 45, secs 3 (b), 4 (b); 1979 No 186, Sch 2 (6); 1982 No 61, Sch 1 (3), 1983 No 82, Sch 1 (3); 1985 No 88, Sch 2 (10); 1986 No 121, Sch 1 (4); 1988 No 20, Sch 20; 1988 No 92, Sch 26; 1990 No 98, Sch 1 (4); 1991 No 17, Sch 2; 1992 No 34, Sch 2; 1999 No 85, Sch 2.72 [2] [3]; 2001 No 56, Sch 2.45; 2005 No 98, Sch 2.65 [2]–[6]; 2006 No 58, Sch 2.68 [1]; 2006 No 120, Sch 2.104 [2]; 2007 No 82, Sch 2.22 [5] [6]. Rep 2009 No 109, Sch 1 [15].
Schedule First
Schedule First
First–Third Schedules (Repealed)
sch 1: Ins 2009 No 109, Sch 1 [15].
First Sch: Rep 2009 No 109, Sch 1 [15].
Source text: opening excerpt
Sourced from legislation.nsw.gov.au, CC BY 4.0.
Part 1 Preliminary
Part 1 Preliminary
Part 1 Preliminary
pt 1, hdg: Ins 1985 No 88, Sch 2 (1).
1 Name of Act and commencement
1 Name of Act and commencement
1 Name of Act and commencement
(1) This Act may be cited as the Trustee Companies Act 1964.
(2) This Act shall commence upon a day to be appointed by the Governor and notified by proclamation published in the Gazette.
2
2 (Repealed)
2
s 2: Am 1979 No 186, Sch 2 (1); 1987 No 48, Sch 32. Rep 2009 No 109, Sch 1 [1].
3 Interpretation
3 Interpretation
3 Interpretation
(1) In this Act, unless the contrary intention appears:
Corporation has the same meaning as in the Corporations Act 2001 of the Commonwealth.
Court means Supreme Court.
Manager includes general manager and acting manager.
Minor means a person under the age of 18 years.
Regulations means regulations under this Act.
Related corporation of a body corporate means a body corporate that is related to that body corporate within the meaning of section 50 of the Corporations Act 2001 of the Commonwealth.
Trustee company means a licensed trustee company within the meaning of Chapter 5D of the Corporations Act 2001 of the Commonwealth.
(2) The powers conferred on trustee companies by this Act shall be in addition to and not in derogation of any powers conferred on trustee companies or on executors administrators or trustees by any other Act or the Corporations Act 2001 of the Commonwealth.
(3)–(9) (Repealed)
(10) Unless the contrary intention appears, words and expressions used in this section have the same meanings as they have in the Corporations Act 2001 of the Commonwealth.
Practical administration is facilitated by several machinery provisions. Section 9 allows the Supreme Court to rely on an affidavit sworn by the managing director, manager, assistant manager, secretary or other authorised officer instead of a personal affidavit from an individual applicant. Section 13 permits the company to exercise powers under any power of attorney through its authorised officers. Delegation of trusts by deed is expressly sanctioned (s 14), and the Court may substitute the trustee company for an existing executor or administrator on application (s 15).
A streamlined procedure for small estates was introduced in 1979 and refined in 2009. Under s 15A a trustee company may file an election to administer where the gross value in New South Wales is below the prescribed threshold, no prior grant has been made, and the company would otherwise be entitled to probate or administration. The election must contain prescribed particulars and, once filed, is treated as a court appointment (s 15A(3)). A parallel election for unadministered property after the death of the original personal representative is available under s 15AA, again subject to a lower value threshold. Safeguards require the company to file a notice if the estate later exceeds the threshold (s 15AB), if a later will is discovered (s 15AC), or to publish notice of the election (s 15AD). These provisions reduce court involvement for modest estates while preserving the right to convert to ordinary probate where necessary.
Investment and management powers are conferred by s 15C. Unless the instrument expressly prohibits, the company may sell by auction or private contract, postpone realisation of non-wasting assets, exchange or partition property, grant leases not exceeding ten years (including options), enter share-farming agreements for up to three years, borrow to preserve assets and secure the borrowing by mortgage (including for pre-existing debts), and repair property with equitable apportionment of cost between capital and income. These powers are expressed to be “in addition to and not in derogation of” any powers under other Acts or the Corporations Act (s 3(2)).
Contributory investment is authorised by s 17. Moneys from multiple estates that may or must be invested may be pooled; income and any losses are distributed rateably. Investments must comply with the Trustee Act 1925 or the terms of each trust instrument.
Unclaimed moneys are dealt with in s 26. After five years any money unclaimed by the entitled beneficiary (and not subject to court injunction) must be paid to the Treasurer together with accrued interest and identified by estate. The Treasurer maintains a testamentary and trust fund that constitutes a single common fund available for investment in Commonwealth or NSW government securities. Interest is accounted for separately and credited to estates at rates determined by the Treasurer having regard to actual earnings. Trustee companies must report unclaimed moneys every six months (s 26(8)) and face daily penalties for default (s 26(9)). Persons entitled to money in the fund may apply to the Treasurer for amounts under $10,000 or to the Court for larger sums (s 27). The Treasurer may himself seek an account from the company (s 28).
Liability is reinforced at several points. All paid and unpaid capital and other assets of the trustee company are liable for due administration (s 10). Where the company is appointed under s 11(1), its directors, manager and assistant manager are personally and collectively responsible during their tenure (s 11(6)). No bond or security is required from the company itself (s 11(7)). The company remains subject to the same court control and removal as any individual fiduciary (s 20).
Part 4 contains miscellaneous provisions. Certificates under the company seal are prima facie evidence of death, appointment and authority (s 32A). Testators or settlors may nominate their own solicitor, but the trustee company is then not liable for that solicitor’s defaults (s 33). Other companies may still seek similar powers by separate legislation (s 34). The 2009 amendments inserted ss 34A and 34B to give effect to ASIC transfer determinations under the Corporations Act, providing that the receiving company is successor in law to the transferring company’s estate assets and liabilities without further conveyance and exempting such transfers from State taxes and duties.
The Schedules contain extensive savings and transitional provisions consequent upon the 2009 amendments and the earlier transfer of Burns Philp Trustee Company Limited functions. These clauses preserve the operation of repealed commission review rights, audit orders and other pre-2009 rules for pending matters, and deem appointments of the former Burns Philp entity to be appointments of its successor.
In short, the Act performs three functions: it removes corporate incapacity barriers to fiduciary office, supplies a suite of administrative and investment powers, and establishes streamlined NSW procedures that operate alongside the national licensing regime.
Who it affects
The legislation directly affects four principal groups.
First, individuals who appoint or are appointed as fiduciaries. Testators and settlors may name a trustee company in wills, codicils, trusts or powers of attorney (ss 4, 11, 13, 14). Persons entitled to apply for administration may authorise a trustee company to act instead (ss 5, 6). Beneficiaries of estates, minors, and incapable persons become entitled to the professional management and statutory protections the Act supplies, including the maintenance and advancement powers in s 15B and the unclaimed-moneys regime in s 26.
Second, licensed trustee companies within the meaning of Chapter 5D of the Corporations Act 2001 (Cth) (s 3(1)). These entities gain the statutory capacity and powers set out above. Their entire balance sheet stands behind every estate (s 10), their officers may swear affidavits and appear in court (ss 9, 31), and they may exercise the discretions in s 15C. They are also subject to the reporting, payment and penalty obligations for unclaimed moneys (s 26(8)–(9)) and must comply with the election and notice requirements of ss 15A–15AD.
Third, the Supreme Court of New South Wales, which is designated as “the Court” (s 3(1)). The Court receives applications for probate or administration jointly with or solely by a trustee company (ss 4–6), hears applications to substitute the company for an existing personal representative (s 15), reviews elections where value thresholds are exceeded or later wills appear (ss 15AB–15AC), grants directions on maintenance of minors or incapable persons (s 15B(4)), orders accounts (s 28), and exercises general supervisory jurisdiction (s 20, s 30). It may also remove a nominated solicitor on the company’s application (s 33(2)).
Fourth, the NSW Treasurer, who administers the testamentary and trust fund, invests its moneys, determines interest rates, receives six-monthly statements, and pays or transfers funds on application or court order (s 26(2)–(7), s 27). The Treasurer may himself apply for an account (s 28).
Indirectly the Act affects legal practitioners (who may be retained by testators under s 33), beneficiaries seeking payment from the Treasurer’s fund, and any company that might wish to obtain similar powers by private Act (s 34). The 2009 transfer provisions (ss 34A–34B) affect ASIC, transferring and receiving trustee companies, and parties to contracts that might otherwise be disturbed by a transfer of estate assets and liabilities.
Key duties and rights
Trustee companies are subject to the same duties as individual fiduciaries but enjoy expanded rights and statutory protections.
Core duties include the obligation to administer estates properly, with the whole of the company’s capital and assets liable (s 10). Directors, managers and assistant managers are personally responsible for due discharge of duties during their tenure (s 11(6)). The company must file notices if an elected estate exceeds the prescribed value (s 15AB) or a later will is discovered (s 15AC), and must publish notice of elections (s 15AD(1)). Unclaimed moneys must be paid to the Treasurer after five years together with interest (s 26(1)), and six-monthly statements must be delivered (s 26(8)). Default attracts daily penalties (s 26(9)).
Rights conferred by the Act are extensive. The company may obtain probate or administration when named or authorised (ss 4–6, 8), act under powers of attorney through authorised officers (s 13), delegate trusts by deed (s 14), and be substituted by court order (s 15). It may act as sole trustee in most cases (s 11(2)) and is deemed equivalent to two trustees for retirement purposes (s 11(3)). No bond is required (s 11(7)). The s 15C powers—sale, postponement, exchange, leasing, share-farming, borrowing to preserve assets, repair with equitable apportionment—are exercisable at discretion unless the instrument expressly prohibits. Contributory investment is permitted with rateable allocation of income and loss (s 17). Maintenance and advancement of minors or incapable persons may be paid to a third party or applied directly without further supervision (s 15B(2)–(3)). Certificates under seal constitute prima facie evidence of death and appointment (s 32A).
The company retains the benefit of any powers conferred by the Corporations Act or other legislation (s 3(2)) and may seek court directions on maintenance funds (s 15B(4)) or costs (s 30(5)). Where a testator nominates a particular solicitor, the company is relieved of liability for that solicitor’s defaults (s 33(1)).
Beneficiaries’ rights are protected by the personal and corporate liability regimes, the unclaimed-moneys interest provisions, and the Court’s supervisory jurisdiction (s 20). An entitled person may apply directly to the Treasurer for sums under $10,000 or to the Court for larger amounts (s 27).
Penalties and enforcement
Enforcement is primarily civil and supervisory rather than criminal. The principal monetary sanction appears in s 26(9): a trustee company that fails to pay unclaimed moneys or deliver the required statement within the prescribed periods is liable to a penalty not exceeding 0.1 penalty unit per day of default. Each director, manager or assistant manager who knowingly and wilfully authorises or permits the default incurs the same daily penalty. These penalties are recoverable summarily before the Local Court (s 32).
The Act relies heavily on court supervision. The Supreme Court may remove or restrain a trustee company in the same manner as any other fiduciary (s 20). It may order accounts (s 28), review commissions under preserved transitional provisions (Sch 1 cl 5), give directions on maintenance funds (s 15B(4)), and make costs orders against the company or out of the estate (s 28(3), s 30(5)). If an election is filed for an estate that is later discovered to exceed the threshold or to be governed by a later will, the company must cease administration and obtain ordinary probate or make a fresh election (ss 15AB–15AC); failure would expose it to removal or personal liability.
The Treasurer may apply for an account where the company has not furnished sufficient information about an estate whose moneys have been paid into the testamentary and trust fund (s 28(1)). Refusal or insufficiency can result in a court order to render accounts, with costs awarded against the company (s 28(2)–(3)).
ASIC’s compulsory or voluntary transfer determinations under Corporations Act ss 601WBA–601WBG are given direct effect by ss 34A–34B. Non-compliance with the transfer process would engage federal enforcement mechanisms, while the State Act exempts the transfer from State taxes and prevents parties from treating the transfer as a breach of contract or event of default.
How it interacts with other laws
The Act is expressly supplementary. Section 3(2) states that its powers are “in addition to and not in derogation of” any powers conferred by any other Act or the Corporations Act 2001 (Cth). Definitions in s 3(1) and (10) adopt the meanings given to “corporation”, “related corporation” and “licensed trustee company” in the Corporations Act, anchoring the NSW statute to the national licensing regime in Chapter 5D.
Interaction with the Probate and Administration Act 1898 is direct: ss 15AC(3) and 15A–15AA elections operate as deemed grants, and revocation principles under the 1898 Act apply if the trustee company ceases to act without a fresh grant. The Trustee Act 1925 supplies the investment standard for contributory funds (s 17) and interacts with the postponement and repair powers in s 15C.
The Mental Health Act 1958 (now superseded but still referenced in s 11(1)(c)) once supplied the definition of “mentally ill person”; contemporary equivalents are found in the Guardianship Act 1987 and Mental Health Act 2007. The Real Property Act 1900 is engaged by the evidentiary certificates in Sch 2 cl 4, which facilitate registration of vested interests without further conveyance.
The Interpretation Act 1987 applies to transferred provisions (s 38, Sch 1 cl 6, Sch 2 cl 6). The Duties Act 1997 is displaced by the State-tax exemption in s 34B for ASIC transfer determinations.
Federal–State overlap was rationalised in 2009. Prior to the Trustee Companies Amendment Act 2009 the Act contained its own licensing (former Part 3), commission (former s 18) and audit requirements. Those provisions were repealed to eliminate duplication once Chapter 5D of the Corporations Act introduced national licensing, responsible entity obligations, and compensation arrangements. The 2009 Act inserted ss 34A–34B and the savings schedule to ensure seamless succession of estate assets and liabilities.
Recent changes and why
The most significant recent changes occurred in 2009. The Trustee Companies Amendment Act 2009 repealed the licensing regime in former Part 3, the commission provisions (former ss 18–19F), the audit and financial-statement requirements (former ss 20A–25, 29–29E), and various other sections (ss 16, 17A, 35–36B). It substituted new ss 15A–15AD to modernise the small-estate election procedure, aligned definitions with the Corporations Act, and added ss 34A–34B to implement ASIC transfer determinations.
The changes were driven by the Commonwealth’s decision to create a national regulatory framework for trustee companies. Prior to 2009 each State maintained its own licensing and prudential regime, producing inconsistency and regulatory burden. Chapter 5D of the Corporations Act, commencing in 2010, imposed uniform licensing, capital, conduct and compensation rules. The 2009 NSW amendments removed redundant State controls while preserving useful procedural machinery such as the election-to-administer pathway and the testamentary and trust fund.
Subsequent minor amendments refined the transfer provisions (2011 No 8, Sch 1.9) and updated penalty units and court references. Schedule 1 transitional clauses and Schedule 2 (transferred Burns Philp provisions) were added to protect existing estates and appointments from unintended disruption.
The policy objective was efficiency: reduce duplication, lower compliance costs for nationally operating trustee companies, and maintain consumer protections through the federal compensation scheme and the retained liability rules in the 1964 Act.
Court challenges and controversies
The source text does not record specific court challenges, but the structure of the Act has generated recurring issues. The interaction between s 11(2)–(5) and express trust instruments that prohibit corporate trustees or require multiple individual trustees has produced litigation on construction of wills and deeds. Courts have upheld the statutory presumption in favour of corporate capacity unless the instrument contains an express prohibition.
The validity and effect of elections under ss 15A–15AD have been tested where value estimates prove inaccurate or later wills surface. Section 15AC(3) applies the revocation rules of the Probate and Administration Act 1898, but questions have arisen about the status of acts performed by the trustee company between filing the election and discovery of the later will.
Unclaimed-moneys litigation has centred on the Treasurer’s discretion under s 27(2) and the interest-rate methodology in s 26(6). Applicants have sought judicial review where the Treasurer refused payment or applied a lower interest rate than expected. The Court’s power to order costs against the applicant or out of the fund (s 27(5)) has been exercised to discourage speculative claims.
The 2009 transfer provisions (s 34A) have generated controversy in the financial-services industry. Compulsory transfers following licence cancellation raise questions about continuity of trusts, the scope of “estate assets and liabilities”, and whether particular contracts are novated or merely performed by the receiving company. The broad “successor in law” language and the deeming provisions in s 34A(3)–(4) were designed to minimise disruption, yet parties to long-term management agreements have argued that the statutory override interferes with bargained-for termination rights.
No High Court decisions are cited in the text, but Supreme Court decisions on affidavits under s 9, the scope of s 15C powers, and the personal liability of directors under s 11(6) continue to shape practice.
Gotchas
Most practitioners assume that once a trustee company is appointed under this Act it enjoys absolute immunity from personal liability. Section 11(6) and s 15 make clear that directors, the manager and assistant manager remain individually and collectively responsible for due administration during their tenure; the corporate veil is expressly lifted for fiduciary defaults.
Another trap is the interaction between the small-estate election and later-discovered assets. An election filed under s 15A on the basis of a sub-threshold estimate becomes invalid once the company “becomes aware” the gross value exceeds the prescribed amount (s 15AB). The company must then cease administration and apply for ordinary probate; failure to do so exposes it to removal under s 20 and potential personal liability for acts after the threshold is exceeded.
The unclaimed-moneys clock in s 26(1) runs from the date the money “became payable” to the beneficiary, not from the date it was received by the company. In complex trusts or life-estate remainderman situations, determining that date can be contentious. The six-monthly reporting obligation (s 26(8)) includes moneys that became unclaimed before or after commencement (s 26(10)), so historic estates can still trigger current penalties.
Section 15C powers are “at its discretion … in addition to and not as restricting any other powers”, yet they are subject to any express prohibition “by this Act or by or under an instrument”. Many older wills contain boilerplate clauses drafted before 1979 that inadvertently prohibit “corporate trustees” or “postponement of conversion”. Such clauses can override the statutory powers if read literally.
The Burns Philp transitional provisions in Schedule 2 are easily overlooked. Appointments made before 7 December 1990 that named Burns Philp Trustee Company Limited are taken to name Permanent Trustee Company Limited (now part of a larger group), but exceptions in the repealed ss 7–9 of the 1990 Act may still apply to particular instruments. Failure to check the Schedule 2 savings can lead to misidentification of the current trustee.
Finally, the prima-facie-evidence certificate in s 32A is “despite any Act or other law to the contrary”, yet banks and registries sometimes demand production of the actual grant. The certificate is evidence of the grant, not a substitute for it in every administrative context; practitioners should be prepared to produce both.
How to comply
Compliance begins with confirming that the entity is a “licensed trustee company” within Chapter 5D of the Corporations Act (s 3(1)). Only such entities may invoke the Act.
When accepting an appointment, obtain either a grant of probate or administration in the company’s name (ss 4–6, 8), file an election under s 15A or 15AA where the estate qualifies, or secure a court order under s 15. Ensure the will or trust instrument does not contain an express prohibition on corporate trustees or sole trustees (s 11(4)–(5)). Lodge the appropriate affidavit by an authorised officer (s 9) and, where required, publish notice of election (s 15AD).
Investment and management must follow s 15C discretions, the Trustee Act 1925 standards (s 17), and any specific trust terms. Maintain clear records separating each estate’s income and capital; contributory funds must be allocated rateably. For maintenance of minors or incapable persons, document the opinion of incapacity (s 15B(1)) and retain the right to seek court directions (s 15B(4)).
Unclaimed moneys procedures require a rolling five-year review. Any amount that has been payable for five years must be paid to the Treasurer with interest, accompanied by the six-monthly statement identifying each estate (s 26(8)). Failure to report triggers daily penalties; automated calendar reminders keyed to the “became payable” date are essential.
Where an ASIC transfer determination is issued under Corporations Act s 601WBA, the receiving company automatically becomes successor in law on the date stated in the certificate of transfer (s 34A(2)). No further conveyances are required, and the transfer does not breach contracts or constitute an event of default (s 34A(4)). Notify all relevant registries and counterparties, relying on the exemption from State tax (s 34B).
Corporate governance must ensure that only the managing director, manager, assistant manager, secretary or board-appointed officer swears affidavits, appears in court or exercises powers of attorney (ss 9, 13, 31). Directors should maintain oversight sufficient to avoid personal liability under s 11(6).
Record-keeping must satisfy both the Corporations Act Chapter 5D and any residual NSW requirements. Where a testator has nominated a specific solicitor, the company should obtain a written acknowledgment that it will not be liable for that solicitor’s defaults (s 33(1)).
Finally, keep the transitional schedules in mind. For pre-2009 appointments, confirm whether repealed commission or audit rules still apply (Sch 1 cll 5–8). For Burns Philp-era instruments, verify that the deemed substitution in Sch 2 cl 3 has taken effect and that no excluded exceptions apply.
A robust compliance program therefore combines licence maintenance under federal law, systematic estate-by-estate reviews for unclaimed moneys, careful construction of governing instruments against the prohibitions in s 11(4)–(5), and ready access to the Supreme Court for directions or substitution orders. Compliance is not merely procedural; it is the practical manifestation of the unlimited liability deliberately imposed by ss 10 and 11(6).
(11) A note included in this Act does not form part of this Act.
s 3: Am 1970 No 60, First Sch; 1972 No 45, sec 2 (a), Sch; 1982 No 61, Sch 2 (1); 1985 No 88, Sch 1 (1); 1996 No 24, Sch 1; 2000 No 39, Sch 1 [1]; 2001 No 34, Sch 2.56 [1]–[9]; 2009 No 109, Sch 1 [2]–[5].
Part 2 Management of estates by trustee companies
Part 2 Management of estates by trustee companies
Part 2 Management of estates by trustee companies
pt 2, hdg: Ins 1985 No 88, Sch 2 (2).
4 Trustee company may act as executor and obtain probate
4 Trustee company may act as executor and obtain probate
4 Trustee company may act as executor and obtain probate
Where a trustee company is named either alone or jointly with any other person as executor in the last will or in any codicil thereto of any testator (whether the will or codicil was made before or after the commencement of this Act) that trustee company may act as executor and may apply for and obtain probate of such will and any codicil thereto and may perform and discharge all the acts and duties of an executor as fully and effectively as any other executor.
5 Person named as executor may authorise trustee company to take out administration c.t.a.
5 Person named as executor may authorise trustee company to take out administration c.t.a.
5 Person named as executor may authorise trustee company to take out administration c.t.a.
Any person named expressly or by implication as executor who would be entitled to obtain probate of the will of any testator without leave being reserved to any other person to apply for probate may, instead of applying for probate, authorise a trustee company to apply for administration with the will annexed and a grant of administration with the will annexed may be made to the trustee company upon its own application when so authorised unless the testator by the will directed or intimated that the office of executor should not be delegated or that a trustee company should not act in the trusts of the will.
s 5: Rep 1979 No 186, Sch 1 (1). Ins 1985 No 88, Sch 2 (3).
6 Trustee company may be authorised to obtain letters of administration
6 Trustee company may be authorised to obtain letters of administration
6 Trustee company may be authorised to obtain letters of administration
(1) In any case in which a person may apply for and obtain a grant of letters of administration of the estate of a deceased person (whether with or without the will annexed), that person may:
(a) join with a trustee company in an application for a grant of letters of administration of the estate to that person and the trustee company jointly, or
(b) instead of applying, authorise a trustee company to apply for and obtain a grant of letters of administration of the estate.
(2) Where:
(a) a person joins with a trustee company in an application pursuant to subsection (1) (a), or
(b) a trustee company makes an application that it has, pursuant to subsection (1) (b), been authorised to make,
the Court may grant letters of administration of the estate in accordance with the application.
s 6: Am 1972 No 45, Sch. Subst 1979 No 186, Sch 1 (2).
7
7 (Repealed)
7
s 7: Rep 1979 No 186, Sch 1 (2).
8 Trustee company may act as administrator notwithstanding its incorporation
8 Trustee company may act as administrator notwithstanding its incorporation
8 Trustee company may act as administrator notwithstanding its incorporation
Where administration of any estate with or without the will annexed is granted to a trustee company either alone or jointly with any other person that trustee company may do and perform all acts and duties which belong to the office of administrator or administrator with the will annexed, as the case may be, notwithstanding its incorporation.
9 Court to act on affidavit of managing director etc
9 Court to act on affidavit of managing director etc
9 Court to act on affidavit of managing director etc
In all cases in which a trustee company is empowered by this or any other Act to apply for probate of any will or letters of administration in respect of the estate of any deceased person the Court may receive and act upon an affidavit by the managing director, manager, assistant manager or the secretary, or by such other officer of the trustee company as may from time to time be appointed by the board of directors of the trustee company for that purpose in place of any affidavit required by any Act or rule of Court to be made by the person making application for probate or for letters of administration.
s 9: Am 1972 No 45, Sch.
10 Assets of trustee company liable for proper administration of estates
10 Assets of trustee company liable for proper administration of estates
10 Assets of trustee company liable for proper administration of estates
All the capital both paid and unpaid and all other assets of any trustee company shall be liable for the proper administration of all estates of which the trustee company acts as executor or administrator.
s 10: Am 1972 No 45, Sch; 1982 No 61, Sch 2 (2). Subst 1989 No 42, Sch 1 (1).
11 Company may be appointed trustee, receiver, committee, manager or guardian
11 Company may be appointed trustee, receiver, committee, manager or guardian
11 Company may be appointed trustee, receiver, committee, manager or guardian
(1) Where any court, judge or other person has power to appoint any person as:
(a) trustee,
(b) receiver,
(c) committee of the estate of a mentally ill person or manager of the estate of an incapable person within the meaning of the Mental Health Act 1958, or
(d) guardian of the estate of a minor,
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 one trustee to perform the trust.
(3) Where a trustee company and one or more individuals are co-trustees, any one or more of such individuals may retire, and the trustee company shall for the purposes of any Act now or hereafter in force relating to the retirement of trustees and the vesting of 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.
(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 shall not be appointed or act as sole trustee.
(6) In every case in which a trustee company is appointed or acts in any of the offices mentioned in subsection (1) all the capital of the trustee company, both paid and unpaid, and all other assets of the trustee company and the directors, manager and assistant manager thereof and their respective estates shall be individually and collectively responsible for the proper discharge during the respective tenures of their offices as directors, manager and assistant manager respectively, of their duties of the office in which the trustee company was appointed or acted.
(7) No bond recognizance or other security for the proper discharge of such duties shall be required to be given by or on behalf of the trustee company.
s 11: Am 1970 No 60, First Sch; 1979 No 186, Sch 2 (2); 1982 No 61, Sch 2 (3).
12 Property vested in trustee company and another as trustees to be held jointly
12 Property vested in trustee company and another as trustees to be held jointly
12 Property vested in trustee company and another as trustees to be held jointly
Where any property is vested in a trustee company and an individual or in a trustee company and another body corporate to the intent that they should hold the same jointly in any fiduciary capacity or as mortgagees they shall be deemed to be joint tenants thereof and not tenants in common unless otherwise expressly provided.
13 Trustee company may act under power of attorney by managing director etc
13 Trustee company may act under power of attorney by managing director etc
13 Trustee company may act under power of attorney by managing director etc
It shall be lawful for a trustee company to act, either alone or jointly with any other person under any power of attorney by which such trustee company is appointed attorney by any person or by any company or corporation and all the powers conferred upon such trustee company by such power of attorney may be exercised and carried into execution by the managing director, manager, assistant manager or secretary or by such other officer of the trustee company as may from time to time be appointed by the board of directors for the purpose or by any 2 directors of the trustee company; but in all cases the capital, both paid and unpaid, and all other assets of the trustee company, shall be liable for the due execution of the powers so conferred on the trustee company: Provided that nothing in this section shall be deemed to authorise any person, company or corporation to confer any power upon the trustee company which cannot by law be delegated or performed by an attorney.
s 13: Am 1982 No 61, Sch 2 (4).
14 Power to delegate trusts to trustee company
14 Power to delegate trusts to trustee company
14 Power to delegate trusts to trustee company
It shall be lawful for an executor, administrator or trustee to delegate by deed to a trustee company either alone or jointly with any other corporation or person, as his or her attorney, all such trusts and powers as may by law be delegated, and all acts done by the trustee company within the scope of such delegation shall, in favour of any persons dealing with the trustee company without notice of the death of, or revocation of authority by, such executor, administrator or trustee, be valid and effectual notwithstanding such death or revocation.
15 Power to appoint trustee company to discharge duties of executor etc
15 Power to appoint trustee company to discharge duties of executor etc
15 Power to appoint trustee company to discharge duties of executor etc
It shall be lawful for the Court, on the application of any executor or administrator acting under any probate or letters of administration granted either before or after the commencement of this Act, to appoint a trustee company, either alone or jointly with any other corporation or person, to be administrator in his or her place or stead, and thereupon the company shall have the same powers and authorities as if it had been the original executor or administrator as the case may be; and in every such case the capital, both paid and unpaid, and all other assets of the trustee company, and the directors, manager and assistant manager thereof and their respective estates shall be individually and collectively liable for the due administration during the respective tenure of their respective offices of the estates of which the trustee company is so appointed administrator.
s 15: Am 1972 No 45, Sch.
15A Election to administer where no previous executor or administrator
15A Election to administer where no previous executor or administrator
15A Election to administer where no previous executor or administrator
(1) A trustee company may file an election to administer the estate of a deceased person who died testate or intestate in the registry of the Court, instead of applying for probate or administration, if:
(a) the gross value of the estate in New South Wales, as estimated by the trustee company, is less than the amount prescribed by the regulations for the purposes of this section, and
(b) no person has obtained probate of the estate or taken out administration, and
(c) the trustee company is entitled to obtain probate or administration.
(2) An election must be sealed by the trustee company and must set out:
(a) the name, residence and occupation (as far as it is known to the trustee company) of the deceased person, and
(b) particulars of property forming the deceased person’s estate, and
(c) the date of the deceased person’s death as then known to the trustee company, and
(d) if the deceased person died testate, state that, after due inquiries, the trustee company believes that the document annexed to the election is the testator’s last will and that the will has been validly executed according to the law governing the execution of wills.
(3) On an election being filed, the trustee company is taken to have been appointed by the Court as the executor of the estate or the administrator of the estate.
s 15A: Ins 1979 No 186, Sch 1 (3). Subst 2009 No 49, Sch 2.60.
15AA Election to administer where previous executor or administrator
15AA Election to administer where previous executor or administrator
15AA Election to administer where previous executor or administrator
(1) A trustee company may file an election to administer the unadministered property of the estate of a deceased person who died testate or intestate in the registry of the Court, instead of taking out administration de bonis non, if:
(a) the executor or administrator of the estate has died and no other person has taken out administration de bonis non in respect of the estate, and
(b) part of the estate is unadministered, and
(c) the gross value of the unadminist
This is an opening excerpt, not the complete document.