Trustee Companies Act 1968

The central organising concept is the "trustee company", defined in section 4 as a licensed trustee company under the Corporations Act, section 601RAA. This definition was substituted in 2009 and replaced earlier definitions that referred to specific corporations and foreign companies. The Act no longer contains its own licensing or prudential provisions; those were repealed by the 2009 amendments. The term "estate" is defined broadly in section 4 to include all real and personal property of whatever nature committed to the administration or management of a trustee company. The "Court" means the Supreme Court of Queensland, and a "Judge" means a Judge of that Court. The "registrar" is the chief executive of the department, though most substantive supervisory functions under the Act are vested in the Supreme Court rather than the executive.

A distinctive mechanism in the Act is the "election to administer" for small estates. Under section 12, where a person dies leaving property in Queensland with a gross value not exceeding $100,000, and no person has taken out administration, a trustee company may file an election in the Court instead of obtaining a formal grant. Upon filing, the trustee company is deemed to be the executor or administrator to the same extent as if a grant had been made. The election must set forth the deceased's name, residence, occupation, and date of death, and must be accompanied by a solicitor's certificate that the Court would grant probate or administration if applied for. If the estate value later exceeds $120,000, the trustee company must file a memorandum and proceed to obtain a formal grant. A similar procedure exists in section 13 for unadministered balances of estates where the original administrator has died and the remaining property does not exceed $100,000. Section 14 requires the trustee company to notify the commissioner of state revenue of any such election.

The concept of "joint grants" appears throughout Part 2. Section 6 allows a person entitled to probate or administration to join with a trustee company in a joint application, resulting in a split grant: probate to the individual and letters of administration with the will annexed to the company, or a joint grant of administration. Section 9 allows a person named as executor to join with a trustee company in applying for letters of administration with the will annexed to be granted solely to the company, provided the testator has not expressed a desire against delegation. Sections 17 to 19 provide that certain joint grants and disclaimers have the force and effect of a vesting order by the Court for the purposes of the Land Title Act 1994, vesting land in the trustee company and any surviving co-trustees. Another key concept is the "appropriation" power in section 28(1)(f), which allows the trustee company to appropriate any part of an estate in satisfaction of a legacy or share, whether settled, contingent, or absolute, subject to notice to sui juris beneficiaries and a one-month period for Court challenge. The Act also introduces the concept of "contributory investments" in section 37, allowing the trustee company to pool moneys from multiple estates into a single investment fund and distribute income rateably.

The Act directly regulates licensed trustee companies operating in Queensland. The definition in section 4 confines the Act's operation to entities licensed under the Corporations Act, section 601RAA. This includes companies such as Perpetual Limited, Equity Trustees Limited, and other nationally licensed trustee corporations. The Act does not apply to private trustees, individual executors, or the Public Trustee except that section 68C(8) provides that the public trustee is taken to be a trustee company for the purposes of the transfer provisions.

Beneficiaries of deceased estates and trusts are the primary class of persons whose interests the Act affects. Sections 12 to 16 affect beneficiaries by permitting the trustee company to administer small estates without a formal grant, thereby accelerating distribution but also limiting the procedural safeguards that accompany a full grant of probate or administration. Section 26 permits trustees to pay legacies of infants to a trustee company, and the trustee company is protected from liability when acting on a trustee's certificate as to the amount and character of the legacy. Sections 31 and 35 govern the treatment of infants' shares, empowering the trustee company to apply income and capital for maintenance, education, and advancement, and to hold shares until infancy ceases. Creditors are affected by sections 32 and 33: section 32 allows the trustee company to give notice to a disputed creditor and, if no proceedings are instituted within six months, to distribute the estate without regard to the claim, absolutely barring the creditor's right to recover from the company. Section 33 allows the trustee company to distribute the estate where a potential beneficiary has not claimed within three years of the grant, after advertising as directed by a Judge, though section 33(3) preserves the right of any person to follow assets into the hands of recipients.

The Supreme Court of Queensland is significantly affected as the supervisory body. Part 4 provides that the Court may remove a trustee company from office (section 49), and may hear applications for consent to appointments under sections 20, 23, and 24. Section 47 sets out the procedural requirements for such applications: they must be by motion, with notice advertised in a Brisbane daily newspaper 7 to 14 days before the application, and the Court may require service on any resident beneficiary entitled to immediate receipt of income or corpus. Section 48 imposes personal responsibility on the officers and directors of the trustee company, making them individually and collectively liable to the Court and to beneficiaries, and subject to attachment and committal for contempt. The registrar of titles and other registering authorities are affected by section 39, which provides that a certificate under the seal of the trustee company is sufficient evidence of its authority to administer an estate or to act as trustee, and is equivalent for registration purposes to probate, letters of administration, or a trust instrument.

The Act confers extensive powers on trustee companies while also imposing certain obligations. The general powers in section 28 are the most significant. Under section 28(1)(a), a trustee company may sell property by public auction or private contract, but section 28(2) restricts private sales: such a sale cannot occur unless the property has first been offered for sale by public auction and not sold, or unless the beneficiaries consent in writing. This restriction protects beneficiaries from undervalue sales. Section 28(1)(c) permits the trustee company to subdivide real or leasehold property and to construct and dedicate roads, footpaths, and streets. Section 28(1)(e) allows the company to take up additional or substitutional shares, debentures, or similar investments on a reconstruction or takeover, using estate funds or by advancing on the security of the estate.

The borrowing power in section 28(1)(q) is subject to a threshold: where the sum borrowed exceeds $50,000, the consent of the Court or the beneficiaries is required. The same threshold applies to capital expenditure on improvement or development under section 28(1)(h) and to the use of additional moneys for restoration after destruction under section 28(1)(i). The appropriation power in section 28(1)(f) is subject to the procedure in section 28(3): the trustee company must give notice to all sui juris interested persons whose whereabouts are known, may amend the appropriation within one month, and any person may apply to the Court to vary the appropriation within one month of notice. The appropriation becomes conclusive unless the Court otherwise directs. Section 28(4) makes clear that these powers are in addition to and not in restriction of other powers under any other Act or the trust instrument.

Section 31 confers extensive powers in relation to infants. The trustee company may apply the whole or any part of the income of an infant's share for maintenance, education, advancement, or benefit during minority, and may also apply corpus or capital, including reversionary shares with the consent of the person on whose death the prior interest determines. Section 31(2) permits the company to pay money to another person for these purposes without being answerable for misapplication. Where property is held in trust for an infant for life or a greater interest, the company may apply income for maintenance even if there is no other fund available, and must accumulate any residue with compound interest for the benefit of the persons who ultimately become entitled. Section 31(8) allows the Court to authorise, or the trustee company with appropriate consent to apply, the presumptive or contingent shares of infants belonging to a class. The company is the sole judge of the insufficiency of express provision for maintenance under section 31(4)(a).

Section 37 gives the trustee company the right to pool moneys from multiple estates into contributory investments, distributing income and bearing profit or loss rateably. This right is constrained by section 37(2): such investments must be in investments authorised by the Trusts Act 1973 or by each of the relevant trust instruments. Section 38 provides that powers conferred on the trustee company may also be exercised jointly with any person holding the office of executor, trustee, or administrator jointly with the company. Section 39 gives the trustee company the right to issue a certificate under its seal that is sufficient evidence of its authority for all courts, officers, and persons, and is equivalent for registration purposes to probate or letters of administration. Section 68A deals with commission: unless the testator directs that testamentary expenses (including commission) be paid out of the estate, commission on devises and legacies is payable by the devisee or legatee. If a testator directs that a devise or legacy be free of duty, the commission is payable out of the same portion of the estate as the duty, if sufficient.

The Act contains a single penalty provision in section 67. Section 67(1) provides that a person who contravenes or fails to comply with a provision of this Act commits an offence and, in the absence of another penalty expressly provided, is liable to a penalty of 10 penalty units. This is a relatively modest maximum penalty. Section 67(2) provides that proceedings for an offence against the Act must be taken in a summary manner under the Justices Act 1886. No specific offences are created elsewhere in the Act; the general provision in section 67 catches any contravention of a mandatory requirement, such as the obligation under section 14 to give notice of an election to the commissioner of state revenue, or the obligation under section 12(7) to file a memorandum and proceed to obtain a formal grant if estate value exceeds $120,000.

The more significant enforcement mechanisms are civil and supervisory rather than penal. Section 48(2) imposes personal liability on the officers and directors of the trustee company. Where the company obtains probate or administration, or is appointed trustee, receiver, guardian, liquidator, or official liquidator, the officers and directors are individually and collectively responsible to the Court and to any trustee, beneficiary, executor, legatee, administrator, next of kin, creditor, or infant interested in the estate. They are liable by process of attachment, commitment for contempt, or other process to all courts having jurisdiction, in the same manner as if each officer and director had personally obtained the grant or appointment. This is a powerful enforcement tool; it means that corporate personality does not shield the individuals from personal accountability for the improper discharge of duties or disobedience to court orders.

Section 49 provides for removal from office. A trustee company appointed as executor, administrator, trustee, receiver, committee, guardian, liquidator, official liquidator, or attorney is subject to the same control and to removal or restraint from acting as any other person holding such office. Section 49(2) allows any person claiming relief against the trustee company for any act done or omitted under the Act to proceed in the Supreme Court or any other court of competent jurisdiction, either by action or in a summary way by motion against the company or any of its directors or officers. The court may make and enforce such order as it deems just. This summary procedure provides an efficient remedy for beneficiaries or creditors who have been prejudiced by the company's conduct.

The transitional provisions in Part 6 preserve the application of certain repealed sections for proceedings that were already in train at the time of the 2009 amendments. Section 75 preserves applications to review commission rates under repealed section 41. Section 76 preserves applications to review fees under repealed section 45. Sections 77 and 78 preserve the accounting provisions in repealed sections 50, 51, and 52 for accounts filed or applications made before commencement. Section 80 preserves the ability to commence or continue proceedings for offences committed before the 2009 amendments, despite the Criminal Code, section 11. This ensures that enforcement actions that were valid under the pre-2009 regime are not defeated by the repeal of the underlying provisions.

The Act contains several express provisions addressing its relationship with other legislation. Section 4AA, formerly section 4(2), provides that the powers conferred on trustee companies by this Act are in addition to and not in derogation of any powers conferred on trustee companies or on executors, administrators, trustees, receivers, committees, guardians, liquidators, official liquidators, guarantors, sureties, or attorneys under any other Act or the Corporations Act. This is a critical interpretative provision: it establishes that the Act is a supplementary source of power, not a code that displaces other statutory or general law powers.

The most significant interaction is with the Corporations Act. Since the 2009 amendments, the definition of "trustee company" in section 4 points to the Corporations Act, section 601RAA. This means that the licensing, capital adequacy, and prudential supervision of trustee companies are governed entirely by Commonwealth law. The Act no longer contains its own registration, capital, or reporting requirements; those were in former sections 41, 42, 44, 45, 50 to 66G, all of which were repealed in 2009. Section 68C gives Queensland statutory force to ASIC-determined transfers of estate assets and liabilities under the Corporations Act, section 601WBA. When ASIC makes such a determination and issues a certificate of transfer, and either the transferring or receiving company is registered in Queensland, the certificate has the effect of making the receiving company the successor in law of the transferring company without any separate conveyance, assignment, or registration. Section 68C(8) extends this provision to the public trustee.

The Act interacts with the Trusts Act 1973 in several ways. Section 37(2)(a) provides that contributory investments may be made in investments for the time being authorised by the Trusts Act 1973 or any other Act for the investment of trust funds. This means that the investment powers under the Trusts Act apply to pooled funds held by trustee companies. Section 31, dealing with maintenance and advancement of infants, supplements the powers that exist under the Trusts Act and under the general law. Section 21(3) provides that where a trustee company and one or more individuals are co-trustees, the trustee company is deemed to be equivalent to two trustees for the purposes of any Act relating to the retirement of trustees and the vesting of trust property. This interacts with the Trusts Act provisions on the retirement and appointment of trustees.

The Act interacts with the Land Title Act 1994 through sections 17, 18, 19, and 39. Sections 17(1) and (2) provide that certain joint grants of probate and administration with the will annexed have the force and effect of a vesting order by the Court for all purposes, including the right to be registered under the Land Title Act as personal representative. Similarly, sections 18 and 19 provide that grants made after a disclaimer of trust by the named trustee have vesting effect. Section 39(2) provides that a certificate under the seal of the trustee company is sufficient for bringing any land under the Land Title Act or recording the company as owner or proprietor. Section 39(3) provides that the certificate is equivalent for registration purposes to the probate, letters of administration, or election to administer, and it is not necessary to register those documents, without prejudice to the Registrar of Titles' right to require lodgement of the will or an office copy. Section 68C(5) provides that the registrar of titles may, without formal application, register the transfer of an asset or liability under an ASIC certificate, and must do so on written application by the receiving company.

The Act also interacts with the Taxation Administration Act 2001 through section 14, which requires the trustee company to give notice of an election under section 12 or 13 to the commissioner of state revenue. Section 68A interacts with the law of testamentary expenses and duties by deeming commission payable to a trustee company to be part of the testator's testamentary expenses, and by providing that where a testator directs a devise or legacy to be free of duty, the commission is payable out of the same portion of the estate as the duty.

The Act has undergone a complex sequence of amendments, with the most significant being the 2009 amendments that removed the entire regulatory and supervisory framework. The original Act was enacted in 1968. The first major amendment was by Act No. 77 of 1989, which inserted numerous definitions including "bank", "bankers' books", "books", "corporation", "financial institution", "foreign company", "insurance company", "new trustee company", "recognised company", "registrar", and "related corporation". The 1989 amendments also inserted new sections including section 4A (later omitted), sections 36, 36A (later omitted), and the extensive regulatory provisions in sections 50 to 66G that established the licensing, capital, reporting, and supervisory regime.

The 1992 amendments (No. 40) substituted the definitions of "foreign company" and "recognised company" and amended the definition of "registrar". The 1993 amendments (No. 38) amended section 36 and omitted section 72. The 1994 amendments (No. 11) repealed the definitions of "bank" and "will" and made consequential amendments to sections 17, 18, and 19 to refer to the Land Title Act 1994. The 1995 amendments (No. 58) amended the short title reference and the definitions of "financial institution" and "insurance company", and inserted section 73A conferring the regulation-making power. The 1996 amendments (No. 79) updated the monetary thresholds in sections 12 and 13 and amended section 28. The 1997 amendments (No. 17) substituted the definition of "financial institution" and amended sections 36A, 64A, and 66C. The 2001 amendments (No. 45 and 72) updated references to the Corporations Act and substituted section 14. The 2004 amendment (No. 43) substituted section 66B. The 2009 amendments (No. 49) were the most transformative. They substituted the definition of "trustee company" to point to the Corporations Act, omitted the definitions of "corporation", "director", "financial institution", "financial institution's books", "foreign company", "insurance company", "new trustee company", "related corporation", and "unincorporated association", repealed sections 4A, 36, 36A, 41, 42, 44, 45, 45A, 50 to 66G, 69, and 73, renumbered former section 43 as section 68A and former section 62 as section 68B, inserted section 68C dealing with transfer determinations, and inserted Part 6 with transitional provisions. The 2012 amendment (No. 37) amended section 68C.

The Act itself does not mention or cite any cases, and no litigation history is provided in the source text. The Act confers jurisdiction on the Supreme Court of Queensland in multiple provisions, but no decided cases are referenced. Section 49(2) allows any person claiming relief against a trustee company to proceed in the Court by action or summary motion, and the Court may make such order as it deems just. Section 28(3)(c) allows any interested person to apply to the Court to vary an appropriation within one month of notice. Section 47 sets out the procedural requirements for applications for consent under sections 20, 23, and 24, including advertising and service requirements. Section 46 provides that the Court may act upon an affidavit by an officer of the trustee company in place of affidavits required by any Act or rule of court. Section 68 allows a solicitor directed by a settlor or testator to conduct the legal business of an estate to be removed by the Court or a Judge on application. The transitional provisions in Part 6 preserve certain pre-2009 applications, including reviews of commission rates (section 75), reviews of fees (section 76), filing and passing of accounts (section 77), and applications for accounts (section 78). No further litigation history is discernible from the text of the Act.

Several provisions contain traps for the unwary practitioner. The small estates election procedure in sections 12 and 13 has strict monetary thresholds. The gross value of Queensland property must not exceed $100,000 at the time of the election. If the value later exceeds $120,000, the trustee company must file a memorandum and proceed to obtain a formal grant. Failure to do so could render the election invalid and expose the company to liability for acting without authority. The valuation is of property situated in Queensland only; section 15 provides that property situated outside Queensland at the time of filing is not included in the valuation, though the election extends to such property in all other respects.

Section 12(5) requires a solicitor's certificate to be endorsed on the election. The solicitor, whether in the employment of the trustee company or not, must certify that they are satisfied the Court would grant probate or administration if applied for. This is not a mere formality; the solicitor must have a proper basis for the opinion. If the election is invalid or ineffective, section 16 requires the trustee company to file a memorandum under seal setting out the facts. Until that memorandum is filed, the invalid election remains on foot and could mislead third parties.

The power of appropriation in section 28(1)(f) is subject to a detailed notice procedure in section 28(3). Before an appropriation is effectual, notice must be given to all persons sui juris who are interested in the appropriation and whose whereabouts are known. The trustee company may amend the appropriation within one month, and any person may apply to the Court within one month. If the whereabouts of an interested person are unknown or the person is out of the jurisdiction, the Court may extend the one-month period. An appropriation that is not challenged within time becomes conclusive, but the procedure must be followed strictly; a failure to give notice to a known interested person would likely render the appropriation voidable.

Section 28(2) restricts private sales of real property: the property must first be offered for sale by public auction and not sold, unless the beneficiaries consent in writing. This is a trap for fast transactions. A trustee company that enters into a private contract without first testing the market through public auction (absent written consent) acts beyond power, and the sale may be challenged. The restriction applies only to real property, not personalty.

The commission rules in section 68A are easily overlooked. Unless the testator directs that testamentary expenses (including commission) be paid out of the estate, the commission on devises and legacies is payable by the devisee or legatee personally. This can cause unexpected shortfalls if the beneficiary has not budgeted for it. Where a testator directs that a devise or legacy be free of duty, the commission is payable out of the same portion of the estate as the duty, but only if that portion is sufficient to cover both. If it is not, the beneficiary may still be liable.

Section 48(2) imposes personal liability on officers and directors of the trustee company. This is a significant exposure. Each officer and director is individually and collectively responsible to the Court and to beneficiaries, and liable by attachment or committal for contempt as if they had personally obtained the grant. Practitioners advising directors of trustee companies should ensure they are aware of this personal liability, which is not limited by the company's corporate veil. A director who delegates improperly or fails to supervise may be personally liable for the company's breaches of fiduciary duty.

Section 20(3) prohibits the appointment of a trustee company under that section where the testator has by will expressly prohibited its appointment to the office in question. Similarly, sections 21(4) and (5) prohibit appointment where the trust instrument forbids the appointment, or expressly provides that there shall be another trustee in addition to a trustee company or that the company shall not act as sole trustee. Sections 18(3) and 19(3) disapply the vesting provisions where the testator expressed the desire that the company should not act in the trusts of the will. These are absolute prohibitions; no court consent can override them.

Compliance with the Act requires attention to procedural and documentary requirements. When acting as executor or administrator, the trustee company must ensure it obtains the proper grant. For small estates under $100,000, the election procedure under section 12 or 13 may be used, but only if the company would be entitled to obtain a grant. The election must be in writing under the company's seal, set forth the deceased's name, residence, occupation, and date of death, include a solicitor's certificate, and be filed in the appropriate registry. Notice must be given to the commissioner of state revenue in the approved form (section 14), and notice must be advertised once in the gazette in a form approved by the registrar (sections 12(8) and 13(5)). If the estate value later exceeds $120,000, the company must file a memorandum and proceed to obtain a formal grant. If the election is discovered to be invalid, a memorandum under section 16 must be filed immediately.

In exercising the general powers under section 28, the trustee company must respect the limitations and conditions imposed. Private sales of real property require prior public auction or written beneficiary consent (section 28(2)). Borrowing or capital expenditure exceeding $50,000 requires the consent of the Court or the beneficiaries (section 28(1)(h), (i), (q)). Appropriations must follow the notice and amendment procedure in section 28(3). The trustee company should maintain records of compliance with these thresholds and consents, as the company bears the onus of proving authority if challenged.

For contributory investments under section 37, the company must ensure that pooled investments are in investments authorised by the Trusts Act 1973 or by each of the relevant trust instruments. The company should maintain separate records of the rateable distribution of income and the allocation of profit or loss. When acting under a power of attorney, the company must ensure that the power is one that could be legally conferred upon a private individual (section 22(2)). The company should maintain a register of officers who are designated to exercise powers under the Act, as the definition of "officer of the trustee company" in section 4 includes any officer designated by the board of directors for particular purposes.

In administering estates with infant beneficiaries, the trustee company must comply with sections 31 and 35. The company should maintain records of any application of income or capital for maintenance, education, advancement, or benefit, including the basis for determining insufficiency of express provision where applicable. If reversionary capital is applied, the company must obtain the prior written consent of the person on whose death the prior interest is determinable (section 31(1)(b)). Accumulations of income under section 31(6) must be held with compound interest for the benefit of those ultimately entitled.

For creditor claims, the company should follow the notice procedure in section 32 carefully. If a claim is disputed, written notice of refusal must be given, and the six-month period for the creditor to institute proceedings runs from receipt of the notice. Service by registered post to the address given in the claim is deemed receipt in the ordinary course of post unless the company has notice to the contrary before distribution (section 32(3)). For missing beneficiaries, the company must first make a report to a Judge and obtain directions as to advertising before distributing under section 33. The company should retain evidence of compliance with these procedures, as they provide statutory protection against later claims.

When seeking court consent under sections 20, 23, or 24, the company must comply with section 47: the application must be by motion, notice must be advertised once in a Brisbane daily newspaper 7 to 14 days before the application, and additional local advertising is required if the testator or intestate resided outside Brisbane. The company should also be aware that consent cannot be given where the testator expressed a desire against delegation or against the company acting, and the Court may require service on any resident beneficiary. The company should maintain a certificate under section 39 in all cases where evidence of its authority is needed for registration or dealing with assets. The certificate must be under the company's seal and contain the prescribed particulars. For land registration, the company should liaise with the Registrar of Titles to determine whether lodgement of the will or an office copy is also required. Finally, companies should monitor ASIC determinations under the Corporations Act, section 601WBA, and ensure compliance with section 68C if a transfer certificate is issued.