Trustee Companies Act 1984

The Act organises its rules around a small set of core legal concepts. Those concepts and how they function in the text are:

• Trustee company: Defined in s 4(1) to mean either (a) a licensed trustee company as defined by Corporations Act s 601RAA or (b) State Trustees. The definition is central because much of the Act’s operation depends on corporate status recognised at Commonwealth level (s 4(1) defn).

• Capacity to hold fiduciary office: The Act treats trustee companies as capable of filling traditional fiduciary roles formerly occupied by individuals. Sections 9-11 and 14-17 set out the various ways a trustee company can be appointed or authorised to act: named executor in a will (s 9); authorised by a named person to apply for probate (s 10); joint or sole recipient of letters of administration (s 11); appointment by court/judge to be trustee/guardian/guarantor (s 14); acting under power of attorney (s 15); being appointed temporarily (s 16); and appointment by an executor, administrator, trustee or guardian with the consenting judicial or tribunal authority in specified cases (s 17).

• Corporate liability for fiduciary duties: The Act makes corporate assets liable for proper administration of an estate (s 13(1)). Several provisions mirror that rule in specific contexts (s 15(2), s 17(2)(a), s 14(2)). This is a functional substitute for the requirement of bonds or security ordinarily demanded from individuals when appointed as trustee or guardian (s 14(2)).

• Court and tribunal supervision: Courts retain supervisory control. The Supreme Court may require service (s 18(3)); receive affidavits from named corporate officers (s 12); refuse consent where testator objects to delegation (s 18(5)); remove trustee companies from office and make orders against them and their officers (s 26). The Victorian Civil and Administrative Tribunal may be involved where an administrator appointed under Guardianship and Administration Act 2019 must consent to the appointment of a trustee company (s 17(1)(c)).

• Claims handling and finality: The Act permits trustee companies to refuse claims in whole or part and to give notice; if a claimant does not commence proceedings within three months, the trustee company may proceed to distribution and the claimant’s right is barred (s 43). The Act also provides a process for dealing with potential beneficiaries who fail to claim within three years (s 44).

• Interaction with Commonwealth corporate transfer mechanics: The Act incorporates operation of the Corporations Act transfer provisions (Part 5D.6). If ASIC makes a transfer determination under the Corporations Act and issues a certificate under s 601WBG, the receiving company becomes successor in law in relation to the transferred estate assets and liabilities automatically (s 26A(1)-(3)). The Act also exempts such transfers from State taxes (s 26B).

• Delegated commercial activities and professional supervision: Trustee companies may prepare wills and charge for the service, but only where preparation is “under the direction and control” of an Australian legal practitioner as defined by the Legal Profession Uniform Law (Victoria) (s 20A).

These concepts frame who bears financial exposure (corporate assets and, in limited ways, officers), who has decision-making authority (trustee company boards, courts, ASIC), and which statutory time limits and formalities dictate finality (s 43 three-month bar; s 44 three-year rule for distribution after grant).

Primary affected parties are clear from the Act’s text and definitions.

• Trustee companies. The Act’s core operations apply to trustee companies as defined in s 4(1): licensed trustee companies within the meaning of Corporations Act s 601RAA and State Trustees. The Act imposes duties, liabilities and procedural obligations on trustee companies when they act in fiduciary roles (ss 9-18, 25-26, 43-44, 54), and subjects them to corporate transfer rules under the Corporations Act (ss 26AA-26B, 26A).

• Directors, managers and officers of trustee companies. The Act explicitly subjects “managers and directors” to personal processes in some contexts. Where an individual would be liable to attachment, commitment or other process, managers and directors of the trustee company are each liable for any individual acts (s 25(2)). The Supreme Court may make orders against the trustee company or against any of its directors or officers in relation to any act done or omitted (s 26(2)).

• Testators and beneficiaries. Testators who nominate trustee companies as executors or who authorise trustee companies under powers of attorney interact directly with the Act’s appointment and delegation provisions (ss 9-11, 15, 20A). Beneficiaries and potential claimants are affected by the claims bars and distribution procedures in ss 43 and 44; their rights can be lost if time limits are not observed or court directions are complied with.

• Executors, administrators, trustees and guardians (private individuals). Individuals who would otherwise perform these offices are affected because they may appoint trustee companies to act in their stead and, upon doing so, are released from liability for acts or omissions by the trustee company (s 17(2)(b)). Similarly, a court or judge may appoint a trustee company instead of a private person (s 14(1)).

• Courts, ASIC and tribunals. The Supreme Court is given explicit powers to receive certain affidavits (s 12), to give or withhold consent for appointments (s 18), to remove trustee companies (s 26) and to give directions for advertisement and distribution (s 44). ASIC’s determinations under the Corporations Act drive transfer mechanics that have immediate primacy under s 26A(1). The Victorian Civil and Administrative Tribunal is implicated where consent is required for administrators under the Guardianship and Administration Act 2019 (s 17(1)(c)).

• Legal practitioners. Section 20A permits trustee companies to prepare wills only under the direction and control of an Australian legal practitioner; s 54 protects trustee companies from vicarious liability for negligence of a practitioner retained pursuant to a testator’s direction, while still permitting the Supreme Court to remove a practitioner on cause shown.

• State revenue authorities. Section 26B removes State tax obligations in relation to transfers processed under Division 2 of Part 5D.6 of the Corporations Act, directly affecting State revenue collection and compliance processes for such transfers.

Secondary effects fall on persons who interact with estates: creditors, claimants, insurers, purchasers of estate property and those involved in corporate reorganisations where trustee companies are transferring estate assets and liabilities. Procedural rules (for notices, advertising, court directions) impose timing and publication burdens on trustee companies that in turn may affect estate administration costs.

The Act allocates duties, rights and liabilities across trustee companies, their officers, courts and claimants in a number of discrete provisions.

Duties and rights of trustee companies

• Right to act as executor/administrator and to obtain probate or letters of administration where named or authorised: sections 9-11 permit trustee companies to apply for and obtain probate or administration and to perform the acts and duties of executors or administrators as fully as private individuals would (s 9; s 11(3)).

• Duty to have corporate assets liable for estates: the capital and other assets of a trustee company are expressly made liable for proper administration of any estate committed to it (s 13(1)). This corporate liability is repeated where trustee companies act under power of attorney or are appointed under s 17 (s 15(2); s 17(2)(a); s 14(2)).

• Duty to observe court directions and consent requirements: the Supreme Court retains discretion to regulate appointments (ss 18, 26). Trustee companies must advertise intended applications for consent (s 18(2)) and comply with any service or directions the Court imposes (s 18(3), s 44(2)).

• Duty to handle claims in accordance with statutory procedure: a trustee company may give written notice of refusal to a claimant, and if no proceedings are commenced within three months, can distribute without regard to the claim and thereby bar the claimant’s right (s 43). When persons who may be potential beneficiaries fail to claim within three years of grant, trustee companies may apply to the Court for directions and then distribute (s 44).

• Duty not to exercise powers beyond those legally conferred on individuals: s 15(3) limits powers conferred by power of attorney to those that could be legally conferred upon a private individual.

• Right to prepare wills subject to control by an Australian legal practitioner: s 20A allows trustee companies to charge fees and recover disbursements for will preparation provided the wills are prepared under the direction and control of an Australian legal practitioner.

Duties and rights of individuals and officers

• Managers and directors: s 25(2) makes managers and directors personally liable, where an individual in the same position would be exposed to attachment, commitment or other process for individual acts. The Supreme Court may make orders against directors or officers (s 26(2)).

• Executors, administrators and trustees who appoint a trustee company: the appointing individual is released from liability for acts or omissions of the trustee company acting pursuant to that appointment (s 17(2)(b)).

Duties and rights of courts, ASIC and tribunals

• Supreme Court supervisory role: s 12 (receipt of affidavits by named officers), s 18 (application for consent, advertising, service and disposition of costs), s 26 (removal of trustee companies, orders against companies and officers), and s 44 (directions for advertisement and distribution) assign active supervisory and remedial roles to the Supreme Court.

• ASIC’s administrative power under Corporations Act: s 26A brings ASIC decisions made under Corporations Act s 601WBA and certificates under s 601WBG into the Act’s operation, turning an ASIC certificate into statutory succession in law for estate assets and liabilities.

Rights and limits of claimants and beneficiaries

• Claimants must institute proceedings within three months after written notice of refusal, or they risk losing recovery rights (s 43).

• Potential beneficiaries who fail to claim within three years after a grant may be treated as predeceased for distribution purposes if the trustee company obtains court directions and follows them; however the person retains the right to pursue assets that have been distributed (s 44(4)).

Regulatory and ancillary powers

• Regulation-making: s 55 authorises regulations to prescribe any matter required by the Act, and Part XI (s 56) permits transitional regulations with limited retrospective effect subject to protections in s 56(3).

• Tax exemption for Corporations Act transfers: s 26B removes State tax liability for transfers effected under Division 2 of Part 5D.6 of the Corporations Act, and for anything done because of or connected with such transfers.

These provisions combine to place trustee companies in a regime that mirrors individual fiduciary law while preserving court supervision, exposing corporate capital to claims, and creating statutory mechanisms for corporate transfer and finality.

The Act does not prescribe criminal penalties or detailed pecuniary fines within the text provided, but it establishes several enforcement pathways, remedies and time bars that operate as practical enforcement mechanisms.

Court-based remedies and removal

• Supreme Court control and removal: the Supreme Court may remove a trustee company from office in the same manner it could remove a private individual appointed to the same fiduciary office (s 26(1)). The Court may also make orders against the trustee company or against any of its directors or officers and “make and enforce such order in the matter as to the court seems just” (s 26(2)). Those orders may take varied forms (injunctions, account, restitution etc) depending on the Court’s inherent powers, but the Act itself confines the remedy to judicial discretion rather than fixed penalties.

• Practitioner removal: where a testator directs that an Australian legal practitioner conduct the legal business of the estate, the practitioner may be removed by order of the Supreme Court on cause shown and the Court may appoint the legal practitioner of the trustee company (s 54(1)). This is an enforceable administrative remedy.

Civil liability and attachment

• Corporate asset liability: the Act makes the capital and all other assets of a trustee company liable for proper administration of an estate (s 13(1)). That provision makes corporate balance sheet resources available to satisfy civil claims against the trustee company.

• Personal liability for officers: where an individual acting in an equivalent capacity would be liable to attachment, commitment or other process, managers and directors of the trustee company shall each be liable for any individual acts and not further or otherwise (s 25(2)). The Supreme Court may make orders against directors or officers under s 26(2). These provide routes for creditors or beneficiaries to obtain remedies against individuals in the company when appropriate.

Procedural finality and statutory time bars

• Claimant bar on non-action: if a trustee company serves written notice of refusal of a claim and the claimant does not institute proceedings within three months, the trustee company may distribute without regard to the claim and the claimant’s right to recover that amount is “absolutely barred” (s 43(2)). This is a statutory cut-off that enforces finality in estate administration and functions as a practical penalty for inaction by claimants.

• Three-year distribution triggers: if a trustee company is informed of a person who would have been entitled to a legacy or distributive share but no claim is made within three years after grant, the trustee company may obtain court directions and then distribute as if the person had predeceased the testator without issue, subject to certain safeguards (s 44(1)-(3)). This provision enforces timeliness and gives trustee companies a pathway to complete administration where potential claimants are dormant.

Tax and transfer enforcement

• Statutory successor in law: where ASIC issues a certificate of transfer under the Corporations Act, the receiving company is taken to be the successor in law for estate assets and liabilities to the extent of the transfer without need for further conveyance (s 26A(2)-(3)). That statutory mechanism enforces continuity of obligations and rights by operation of legislation rather than through private law assignment mechanics.

• State tax exemption: s 26B removes State tax obligations in relation to such transfers, which enforces an exemption that affects revenue collection and reduces a procedural cost of effecting transfers under the Corporations Act mechanism.

Regulatory instruments and retrospective transitional regulation

• Regulations with transitional effect: s 56 permits the Governor in Council to make transitional regulations that may have retrospective effect to the date of Royal Assent of the amending Act, subject to protections for existing private rights (s 56(2)-(3)). This power enables administrative enforcement of the transition to a new regime, but the Act limits prejudicial retrospective effects against private persons (s 56(3)).

Practical enforcement risk and uncertainty

• The Act leaves much to judicial discretion rather than prescribing fixed pecuniary penalties. Enforcement therefore depends on litigation and court processes; the Act supplies time bars and direct successor mechanisms that facilitate enforcement (ss 43-44, 26A). The Act also authorises regulations (s 55) which could create further compliance and enforcement rules, but their content is not specified in the text provided.

The Act cross-references and integrates with a number of Victorian and Commonwealth laws. The text explicitly links to, relies on, or defers to other statutes in several ways.

Corporations Act and ASIC

• Definition and licensing: the Act defines “trustee company” by reference to Corporations Act s 601RAA (s 4(1) defn), thereby incorporating the Commonwealth licensing framework for trustee companies into the Victorian Act.

• Transfer mechanics: s 26A implements the effect of ASIC determinations made under Corporations Act s 601WBA and certificates under s 601WBG. The receiving company becomes successor in law to estate assets and liabilities “to the extent of the transfer” when the certificate comes into force. The section further picks up the Corporations Act’s certificate provisions (s 26A(4)) to treat provisions in the certificate as operative on a state-law level.

Administration and Probate Act 1958 and Trustee Act 1958

• Duties, obligations and exceptions: s 25 subjects trustee companies to “the same respective rights, duties and obligations” as individuals acting in the same capacities, “except as otherwise provided in this Act and subject to sections 65C and 65D of the Administration and Probate Act 1958.” The Act also states s 44 “shall not be construed as in derogation from the provisions of section 33 of the Trustee Act 1958” (s 44(5)). Those cross-references integrate existing Victorian estate and trustee law as the normative baseline.

Legal Profession Uniform Law (Victoria)

• Will preparation: s 20A expressly permits trustee companies to prepare wills and charge a fee, but only where the wills are prepared under the direction and control of an Australian legal practitioner “within the meaning of” the Legal Profession Uniform Law (Victoria). The Act therefore imports the regulatory boundary between legal services and other commercial actors.

State Trustees (State Owned Company) Act 1994 and Guardianship and Administration Act 2019

• Definitions and appointments: s 4(1) imports the meaning of “State Trustees” from the State Trustees (State Owned Company) Act 1994. Section 17(1)(c) requires the consent of the Victorian Civil and Administrative Tribunal for an administrator appointed under the Guardianship and Administration Act 2019 to appoint a trustee company.

Duties Act 2000 and State tax law

• Tax exemption for Corporations Act transfers: s 26B defines “State tax” to include duty under the Duties Act 2000 and other application or registration fees, and then provides that State tax is not payable in relation to transfers effected under Division 2 of Part 5D.6 of the Corporations Act (“exempt matter”) or anything done because of, or for a purpose connected with, an exempt matter.

Charter of Human Rights and Responsibilities Act 2006

• Limits on retrospective regulation: s 56(4) provides that transitional regulations have effect “despite anything to the contrary in any Act (other than this Act or the Charter of Human Rights and Responsibilities Act 2006) or in any subordinate instrument.” That is, regulations under s 56 cannot contravene the Charter; the Act therefore preserves the Charter as a statutory constraint on certain regulatory exercises.

Common law and court procedural rules

• Affidavits and proof: s 12 authorises the Supreme Court to receive and act on affidavits of specified officers of a trustee company in lieu of any affidavit otherwise required under Act or rule, thereby modifying the evidentiary practice for applications for probate or letters of administration where trustee companies are involved.

Regulation-making power

• s 55 empowers the Governor in Council to make regulations “for or with respect to prescribing any matter or thing authorized or required to be prescribed for the purposes of this Act.” The regulations can operate alongside the cross-referenced statutes and may provide additional operational detail.

Transitional interaction

• Part XI (ss 56-61) contains multiple provisions preserving proceedings and rights that were in play immediately before the Trustee Companies Legislation Amendment Act 2010 took effect, and it permits regulations of a transitional nature (s 56). Those provisions explicitly manage how repeal and amendment of earlier Victorian provisions interact with existing rights under other Acts and pending court proceedings.

Overall, the Act functions as an integration point between Victorian estate and fiduciary law and Commonwealth corporations regulation. It imports licensing and transfer mechanics from the Corporations Act, defers to legal profession regulation when it allows trustee companies to prepare wills, preserves existing estate law obligations under the Administration and Probate Act and the Trustee Act, and provides state-level tax relief for certain Commonwealth-directed transfers.

The Act’s endnotes provide a detailed table of amendments from its assent in 1984 through to 2019. Key amendment milestones and their mechanical effects as recorded in the Act are:

• 1986-1995 cluster of reforms: The Mental Health Act 1986 (No. 59/1986), Supreme Court Act 1986 (No. 110/1986), State Trust Corporation of Victoria Act 1987 (No. 55/1987), Trustee Companies (Amendment) Act 1988 (No. 76/1988), and related statutes introduced multiple amendments to Sections 13-18, 25-26 and other provisions. Those earlier amendments adjusted appointment and supervisory mechanisms and added governance detail (see Table of Amendments entries for each Act).

• 1991 insertion of s 20A (State Trust Corporation of Victoria (Amendment) Act 1991, No. 84/1991): s 20A, as inserted in 1991, authorised trustee companies to prepare wills where the work is done under direction and control of an Australian legal practitioner. The provision has been amended in later Acts (see s 20A historical notes).

• 2001-2004 Corporations and relationships amendments: The Statute Law Amendment (Authorised Deposit-taking Institutions) Act 2001 (No. 11/2001) and the Corporations (Consequential Amendments) Act 2001 (No. 44/2001) effected definitional and cross-referential changes, while the Fair Trading (Enhanced Compliance) Act 2004 (No. 103/2004) and Corporations (Financial Services Reform Amendments) Act 2002 (No. 9/2002) also made consequential changes to the Act’s provisions.

• 2005 Legal Practice amendments: The Legal Profession (Consequential Amendments) Act 2005 (No. 18/2005) updated s 20A and s 54 to reflect the evolving regulation of legal practice. s 20A was amended to reference the Legal Profession Uniform Law (Victoria) and the control/direction of an Australian legal practitioner.

• 2010 Trustee Companies Legislation Amendment Act (No. 17/2010): The 2010 amending Act made substantial structural changes. It repealed, amended and re-enacted many provisions and inserted Part XI transitional provisions (ss 56-61) to preserve existing proceedings and entitlements. It also re-specified the definition of trustee company (s 4(1) defn) to align with Corporations Act licensing and made other consequential repeals and insertions. The Table of Amendments indicates numerous repeals and substitutions effected by the 2010 Act (see Endnotes Table entry for No. 17/2010).

• 2012 State tax and transfer alignment: The State Taxation and Other Acts Amendment Act 2012 (No. 76/2012) inserted ss 26AA-26A (noting s 26AA appears inserted by s 26 of the amending Act) into the Act to align state law with Part 5D.6 of the Corporations Act and to implement the tax exemption mechanics captured in s 26B. The table records the insertion of those sections on 5 December 2012.

• 2014-2019 consequential and guardianship amendments: The Legal Profession Uniform Law Application Act 2014 (No. 17/2014) and Justice Legislation Amendment Acts (eg No. 80/2014) made further consequential changes, while the Guardianship and Administration Act 2019 (No. 13/2019) amended s 17 to require consent of the Victorian Civil and Administrative Tribunal in specified cases and adjusted cross-references to the Guardianship and Administration Act 2019 (see s 17(1)(c) and s 14(2) amendments recorded in the table).

The endnotes list the precise Acts, assent and commencement dates and identify the specific items in schedules or sections that affected the Trustee Companies Act 1984. Part XI of the Act (ss 56-61), inserted by the 2010 Amendment Act, expressly preserves in-flight applications and existing entitlements and allows transitional regulations, and the table documents the continued patching of the Act as both corporate and guardianship regimes evolved.

The Table of Amendments in the endnotes is the source record for these changes; practitioners should consult the endnotes and the provisions cited (for example, the insertions of ss 26A-26B by No. 17/2010 and No. 76/2012) when tracing statutory history and current operation.

The Act’s text and endnotes do not cite any decisions or authority that have interpreted its provisions; the printed statute as provided contains no litigation history or case citations. The Act does, however, create multiple points at which court proceedings can be initiated and preserved, thereby shaping litigation risk and likely judicial engagement. The statutory provisions that generate litigation or court involvement include:

• Consent and appointment proceedings: s 18 permits applications to the Supreme Court for consent under s 17. It requires 7 days’ advertisement before the making of the application (s 18(2)) and allows the Court to require persons entitled to immediate receipt of income or corpus to be served with notice (s 18(3)). Each of these provisions provides a procedural basis for contested applications and judicial review.

• Granting of probate and administration: s 10 and s 11 permit trustee companies to apply for probate or letters of administration, either jointly with or in place of individuals. Applicants may be required to provide affidavits pursuant to s 12 by specified corporate officers. Disputes over entitlement to grants, delegation issues or challenges to the validity of appointments can therefore be litigated in the Supreme Court.

• Removal and orders against trustee companies and officers: s 26 provides a statutory remedy for persons claiming relief against trustee companies for acts done or omitted, enabling applications to the Supreme Court (or other competent jurisdiction) for orders “as to the court seems just.” Removal of trustee companies and orders against directors and officers are therefore directly litigable matters.

• Claims process and binding time bars: s 43 with its three‑month limitation for claimants to institute proceedings following refusal notice establishes an enforceable statutory bar that will be litigated where disputes arise about receipt of notice, timeliness, or the adequacy of the trustee company’s notice. The Act’s deeming provision permitting service by registered letter (s 43(3)) may spawn litigation concerning the sufficiency of the address used or the trustee company’s notice of contrary facts.

• Distribution on non-claim: s 44 permits a trustee company to apply to the Court for directions and then to distribute where a potential beneficiary fails to claim within three years of grant. Litigation may involve the form of advertisements, whether the trustee company has complied with directions, and post-distribution claims to follow assets (s 44(4)).

• Court evidence: s 12’s authorisation for courts to rely on affidavits of specified officers rather than individuals shifts typical evidentiary practice and may produce litigation about the adequacy of corporate officer affidavits in establishing facts necessary to grants or other orders.

• Corporations Act transfer disputes: s 26A incorporates ASIC determinations under the Corporations Act and makes the receiving company successor in law when a certificate of transfer comes into force. Litigation could arise over the construction or application of an ASIC certificate, the extent of the transfer, the interplay with third party rights, or the operation of s 26B tax exemptions. Section 26A(4) provides for certificate provisions to be treated as operative in accordance with their terms, creating potential points of construction and challenge.

Transitional preservation of proceedings

• The Act expressly preserves pending applications that were not finally determined before the 2010 amendment (ss 57-60), meaning litigation that existed before amendments continues and must be resolved under the prior framework. That continuity reduces,but does not eliminate,rights to procedural challenge arising from subsequent legislative change.

Absence of case law in the text

• No reported decisions are quoted or summarised in the version of the Act supplied. Practitioners will need to search judicial databases and law reports for authoritative interpretations of the statutory provisions. Where the Act leaves issues to judicial discretion (for example, the form of relief under s 26(2) or the Court’s directions under s 44(2)), those rulings will determine how the Court exercises the power in particular factual circumstances.

In short, the Act establishes multiple statutory gateways into litigation,consent applications, removals, claim disputes, distribution applications and challenges arising from Corporations Act transfers. While the statute itself contains no litigation history, its provisions are procedural and substantive points that will be litigated in the Supreme Court and, in limited contexts, other tribunals such as VCAT.

This Act contains numerous practical traps and timing-sensitive rules that practitioners and compliance officers should note. The following are source-grounded, provision-specific “gotchas” to watch for.

Delegation limits and testator’s wishes

• Testator’s expressed wishes can prevent delegation. Sections 10(2) and 18(5) bar applications or consent where the will expresses a desire that the office of executor is not to be delegated or that a trustee company not act. Before relying on a power to delegate or on a trustee company’s capacity to apply for probate, practitioners must check the will for an express non-delegation clause.

Advertising and short notice periods

• Seven-day pre-application advertisement requirement: s 18(2) mandates that notice of intended application to the Supreme Court for consent must be advertised seven days before the application in a daily newspaper circulating generally in Victoria. Practitioners should note the short, prescriptive timeframe and plan for publication costs and lead times; failure to follow the notice requirement risks procedural challenge or delay.

Strict claimant time bars

• Three-month bar on claims after refusal notice: s 43(2) provides that if a trustee company gives written notice of refusal and the claimant does not institute proceedings within three months after receipt, the trustee company may distribute without regard to the claim and the claimant’s right shall be “absolutely barred.” The notice may be served by registered letter and is deemed received in ordinary course unless the trustee company has notice to the contrary (s 43(3)). Practitioners must manage communication carefully; claimants who miss the three-month window will lose recovery rights.

• Three-year rule for unclaimed beneficiary distributions: s 44(1) provides a three-year period after grant of probate or administration for persons whom the trustee company has been informed would have been entitled to a legacy or distributive share to make a claim. After that, the trustee company may obtain court directions and distribute as if the person had predeceased the testator without issue (s 44(3)). Trustee companies must follow the Court’s direction on advertising and procedural steps (s 44(2)), otherwise distribution could be set aside or invite litigation.

Corporate capital exposure

• Corporate assets and directors can be liable: s 13(1), s 15(2) and s 17(2)(a) declare that corporate capital and other assets shall be liable for proper discharge of duties. In addition, s 25(2) exposes managers and directors to personal liability for individual acts where a private individual in the same position would be subject to attachment or similar process. Trustee company boards and compliance officers must therefore be aware that corporate status does not confer immunity from claims, and that individual officers may face enforcement.

Power of attorney limitation

• s 15(3) restricts the power conferred under a power of attorney: a person cannot confer on a trustee company any power that cannot be legally conferred upon a private individual. This can defeat attempts to confer unusual or broader powers on trustee companies that are beyond the legal competence of human attorneys.

Will preparation rules and professional control

• s 20A permits will preparation only if done under the direction and control of an Australian legal practitioner. Trustee companies properly structuring will-preparation services must document the legal practitioner’s supervisory role to avoid breaches of the Legal Profession Uniform Law (Victoria).

Automatic succession on ASIC certificates

• s 26A effect: when ASIC issues a certificate under the Corporations Act for a transfer of estate assets and liabilities, assets and liabilities transfer “without the need for any further transfer, conveyance, assignment or assurance” (s 26A(3)(a)-(b)). Parties dealing with estate property should be alert to the fact that the certificate’s coming into force can change legal ownership/obligations immediately and without further formalities, which may surprise third parties who rely on conventional transfer processes.

State tax exemption and potential revenue gaps

• s 26B exempts “exempt matter” from State tax, including duty under the Duties Act 2000. While beneficial from a transactional cost perspective, practitioners should note that the exemption may also limit State mechanisms that otherwise would signal or record a transfer, with potential downstream effects on public registers and third-party notice.

Transitional regulations with limited retrospective effect

• s 56 permits transitional regulations which may have retrospective effect to the date the amending Act received Royal Assent; however s 56(3) protects existing private rights from prejudicial retrospective effect. Practitioners must check whether transitional regulations exist and whether they affect underlying rights or impose obligations that predate the regulation.

Court discretion and evidentiary shortcuts

• s 12 allows courts to act on affidavits by specified corporate officers. While procedurally convenient, reliance on corporate officer affidavits can produce evidential challenges if particularised fact-finding is required or where the affidavits lack foundation for critical issues.

Release of appointor from liability

• s 17(2)(b) releases an executor, administrator, trustee or guardian who appoints a trustee company from liability for acts done or omitted by the trustee company acting under that appointment. The appointor should be aware that this release is unconditional in the text; careful drafting of appointment instruments and consideration of indemnities may be needed where appointors wish to retain some protection.

Regulation-making scope

• s 55 and s 56 vest broad powers to make regulations, including transitional ones. Because the content of such regulations is not prescribed in the Act, parties must monitor subordinate legislation for substantive compliance requirements.

Each of these points is grounded in the Act’s text and has operational implications for estate administration, risk allocation, timing and compliance protocols.

This section sets out concrete compliance steps and internal controls for trustee companies, their directors and officers, and for advisers dealing with estates subject to the Act. All steps are grounded in the statutory provisions cited.

Governance and licensing checks

• Confirm trustee company status: verify that the entity meets the Act’s definition of trustee company in s 4(1), either as a licensed trustee company under Corporations Act s 601RAA or as State Trustees. Keep documentary proof of licensing and corporate authorisations on file.

• Board resolutions and officer appointments: ensure the board has properly appointed the managing director, manager, district manager, assistant manager, secretary or other designated officers who are authorised to swear affidavits under s 12. Maintain current board minutes authorising those officers.

Probate, administration and consent processes

• Check wills for non-delegation clauses: before relying on s 10, s 11 or s 17 authorities, examine the will for any express wish or clause that prevents delegation or prohibits a trustee company from acting (s 10(2), s 18(5)). If such a clause exists, do not proceed without court application.

• Advertising and service for Court consent: if an application for consent under s 17 is anticipated, follow s 18(2) by advertising notice of the intended application seven days before applying in a daily Victoria-circulating newspaper. Prepare to serve immediate‑receipt beneficiaries if the Court requires service (s 18(3)). File the affidavit(s) required and be prepared to seek costs orders payable out of the estate if necessary (s 18(4)).

Affidavits and evidentiary preparation

• Affidavit protocol: for probate or letters of administration applications under s 12, ensure that affidavits are sworn by officers explicitly authorised by the board and that each affidavit contains the necessary factual foundation for the Court’s assessment. Maintain records showing the board’s appointment of the swearing officer.

Estate administration risk controls

• Maintain capital reserves and insurance: because corporate capital and assets are expressly liable for proper administration (s 13(1), s 15(2), s 17(2)(a)), trustee companies should ensure adequate capital allocation, professional indemnity insurance and audited trust accounting systems to meet liabilities and to provide evidence of proper administration.

Claims procedure compliance

• Refusal notices and time bars: when refusing a claim in whole or in part, give written notice in accordance with s 43(1). Use registered post and retain proof of posting and address details, because service by registered letter is specifically authorised and deemed receipt is relevant to the three‑month limitation period (s 43(3)). Track deadlines and do not distribute assets until any three‑month period has expired or ongoing litigation is resolved.

• Unclaimed beneficiary procedure: if informed of a potential beneficiary who has not claimed within three years of the grant, prepare the Court report laying out the “material facts” and obtain directions under s 44(2). Implement the Court’s directions regarding the form and manner of advertisements and confirm in writing compliance with those directions before distribution under s 44(3).

Will preparation practice

• Ensure legal practitioner supervision: if the trustee company offers will preparation under s 20A, document that the wills are prepared under the direction and control of an Australian legal practitioner as defined by the Legal Profession Uniform Law (Victoria). Keep records of the practitioner’s instructions, file notes and fee allocations so that the trustee company’s role as service provider is distinct and supervised.

Power of attorney and limitations

• Confirm scope of powers: when acting under a power of attorney, ensure the instrument confers powers that could lawfully be conferred on a private individual (s 15(3)). Obtain legal advice if the instrument attempts to confer unusual corporate-only powers or if the scope is uncertain.

Corporations Act transfers and tax exemption

• Coordinate with ASIC and verify certificate terms: where a transfer under Part 5D.6 of the Corporations Act is contemplated, confirm ASIC has made a determination under s 601WBA and issued a certificate under s 601WBG (s 26A(1)). Review the certificate carefully for any provisions incorporated by s 26A(4), since those provisions will be taken to happen or be the case.

• Document tax exemption reliance: if relying on s 26B to avoid State tax, maintain records showing the transfer is an “exempt matter” as defined in s 26B(1) and retain correspondence with ASIC or other intermediary bodies. Ensure that the transfer is listed in the ASIC certificate and that State revenue officers are notified as needed to avoid registration or application fee disputes.

Court supervision and removal risk

• Litigation preparedness: because the Supreme Court can remove trustee companies and make orders against directors and officers (s 26), maintain a litigation readiness plan, including preservation of estate records, conflict registers, decision logs and communications. Obtain legal advice promptly where threatened with an application under s 26.

Regulatory monitoring and subordinate instruments

• Monitor regulations and transitional orders: s 55 and s 56 permit regulations and transitional regulations that can affect matters of application or savings. Maintain a statutory instrument watch and subscribe to Victorian Government Gazette updates and consolidated legislation services to capture any new regulations.

Record-keeping and audit trails

• Maintain full audit trails: given the Act’s reliance on corporate officer affidavits (s 12), potential court directions (s 44), and statutory time bars (s 43), robust record-keeping is essential. Retain copies of notices, proof of service, advertisement placements, court filings, board authorisations, and correspondence with beneficiaries.

Practical checklist (summary)

• Verify trustee company licensing and board authorisations (s 4(1); s 12).
• Review will language for delegation prohibitions (s 10(2), s 18(5)).
• Undertake required advertising and service before consent applications (s 18(2)-(4)).
• Use registered post for refusal notices and track the three‑month litigation window (s 43(1)-(3)).
• If distributing after 3 years of non‑claim, obtain court directions and comply with advertisement directions before distribution (s 44(2)-(3)).
• Ensure will preparation is under legal practitioner control (s 20A).
• For transfers arising from Corporations Act mechanisms, confirm ASIC certificate and document tax exemption reliance (ss 26A, 26B).
• Maintain capital, insurance and records to meet corporate liability exposure (ss 13(1), 25(2)).

Following these steps will align operational practice with statutory mechanics, reduce litigation risk, and preserve the trustee company’s ability to rely on the statutory powers and immunities the Act provides.