Trustee Companies Act 1987

The central concept is the “trustee company”, defined in section 3(1) as “a licensed trustee company as defined in the Corporations Act section 601RAA”. This definition relies on the Commonwealth licensing regime: a body corporate that holds an Australian Financial Services Licence authorising it to provide a trustee company service. The Act does not itself license trustee companies; that function has been transferred to the Commonwealth, but the State Act continues to govern their powers, duties and interactions with Western Australian courts and property. Before the 2011 amendments, the Act contained a Schedule 1 listing specific companies (e.g. West Australian Trustees Limited, Perpetual Trustees WA Ltd); that schedule was repealed but transitional provisions confirm that those companies remain licensed trustee companies for Commonwealth purposes (section 47).

“Estate” is defined broadly in section 3(1) to include “all real or personal property of any kind committed to the management or administration of a trustee company”. This covers both deceased estates and trust property under ongoing management. “Will” includes a codicil and any other testamentary instrument or disposition (section 3(1)). The “Court” is the Supreme Court of Western Australia (section 3(1)), which has jurisdiction over grants of probate and administration, as well as appointments and removals of trustee companies in fiduciary roles.

Part II (sections 5-17) establishes the key powers and duties. A trustee company named as executor in a will may obtain probate and perform all acts and duties of an executor (section 5). Persons entitled to probate or administration may authorise a trustee company to apply for a grant jointly or alone, unless the testator expressed a desire that the office not be delegated (sections 6, 7). On intestacy, a person entitled to administration may similarly authorise the trustee company (section 8). Section 10 introduces the “small estates” election: a trustee company may file an election in the Court without obtaining a formal grant, provided the gross value of the deceased’s property in Western Australia does not exceed the prescribed amount. The election deems the company to be executor or administrator as if a grant had been made. However, this election is provisional: if the property is later found to exceed the prescribed threshold or include out-of-State property, the election ceases and the company must seek a formal grant (section 10(3)). Section 11 preserves the rights of interested persons (other than those who authorised the company) to apply for a grant themselves, notwithstanding any grant made to the trustee company.

Trustee companies may be appointed as trustees, receivers, guardians, sureties or guarantors wherever a court or other person has power to appoint a natural person (section 12). The company may act as sole trustee even if the instrument creating the trust requires more than one trustee, unless the instrument expressly forbids a trustee company or requires another trustee in addition (sections 12(2)-(4)). No bond or security is required from a trustee company for these appointments (section 12(5)). Section 13 permits a trustee company to act under a power of attorney, but only within the scope of authority that can lawfully be delegated to an attorney.

Trustee companies are represented in court and elsewhere by a director, secretary or other officer authorised by the board (section 16(1)). Declarations, affidavits and statements may be made by such authorised officers on behalf of the company (section 16(2)). Critically, members of the board of directors are jointly and severally responsible to the Court for the proper discharge of the company’s duties, as if they had been appointed personally (section 16(3)). However, the company itself remains liable for any pecuniary loss caused by a breach of trust or duty by the company or its officers (section 16(4)). This dual liability structure means that directors face personal accountability but the company retains primary financial liability.

Part III introduces the concepts of “transferring company” and “receiving company” in the context of compulsory transfers under the Corporations Act (section 29). When ASIC cancels a trustee company’s licence and determines a transfer of estate assets and liabilities to another licensed trustee company, and issues a certificate of transfer, the receiving company is taken to be the successor in law of the transferring company to the extent of the transfer (section 29(3)). Assets and liabilities vest automatically without any transfer, conveyance or assignment (section 29(4)). A certificate from an authorised ASIC officer may certify that a specific asset or liability has been transferred, and that certificate is evidence of the matter in all proceedings (section 30). State tax, including duty under the Duties Act 2008 and any other State tax, fee or levy, is not payable in respect of such compulsory transfers (section 32). Voluntary transfers of estate assets and liabilities are also permitted by regulation if ASIC has allowed the transfer (section 33), and those regulations may similarly confer successor-in-law status and exemption from tax (section 33(2)(i)). Section 34 ensures that nothing done under Part III places any person in breach of contract or confidence or makes them guilty of a civil wrong, and advice or consent is deemed to have been obtained if necessary.

The primary entities affected are licensed trustee companies that operate in Western Australia. These are bodies corporate holding a licence under the Corporations Act to provide trustee company services. The Act governs their conduct when they act as executors, administrators, trustees, receivers, guardians, attorneys, sureties or in any other fiduciary capacity in relation to Western Australian estates, trusts or property. Because the definition in section 3(1) ties “trustee company” to the Commonwealth definition, any company that qualifies under section 601RAA of the Corporations Act is automatically subject to the State Act when dealing with Western Australian assets or court proceedings. The transitional provisions in section 47 confirm that the former Schedule 1 companies (such as West Australian Trustees Limited and Perpetual Trustees WA Ltd) are and were licensed trustee companies, and their existing appointments and actions are unaffected by the repeal of the schedule.

The Act also affects individuals and entities who interact with trustee companies: testators, potential executors, beneficiaries of estates, persons entitled to administration on intestacy, and settlors of trusts. For example, a testator who names a trustee company as executor triggers the operation of section 5. A person entitled to probate may choose to authorise a trustee company to act under sections 6 or 7. An executor, administrator or trustee may appoint a trustee company to act in their stead under section 14 (by power of attorney) or section 15 (with court consent). The Act limits the testator’s or settlor’s power to exclude a trustee company: if the will or trust instrument expressly forbids the appointment of a trustee company, the company cannot be appointed (section 12(3)), and if the instrument expressly requires another trustee in addition to or instead of a trustee company, the company cannot act as sole trustee (section 12(4)). Similarly, the testator may express a desire that the office not be delegated to a trustee company, which prevents the company from obtaining administration under sections 6(2) and 7(2), and from being appointed under section 15(3).

The Act imposes direct obligations on directors and officers of trustee companies. Section 16(3) makes members of the board of directors jointly and severally responsible to the Court for the proper discharge of the company’s duties, as if they had been appointed personally. Section 44 provides that where a trustee company commits an offence under the Act, any officer who was knowingly concerned in the offence is also guilty and liable to the same penalty. An “officer” includes a member of the board of directors, a principal executive officer and a secretary (section 44(2)). This personal liability extends beyond the company’s corporate veil.

The Treasurer of Western Australia is affected by the unclaimed property provisions in section 27. Moneys and sale proceeds of property unclaimed for two years must be paid to the Treasurer, who deals with them under the Unclaimed Money Act 1990 (section 27(5)). The Treasurer also receives annual statements from trustee companies detailing unclaimed moneys and reasons for any delay in payment (section 27(6)). The Commissioner for Corporate Affairs is referenced in section 3(1) and in section 43(d) regarding lodgment of documents, but the Commissioner’s role appears limited given that licensing is now Commonwealth-controlled.

The Supreme Court of Western Australia is frequently involved: it grants probate and administration (sections 5-8), receives small estate elections (section 10), and can appoint trustee companies under section 12. The Court also has supervisory jurisdiction over trustee companies, which are subject to the same control and removal as any other executor or administrator (section 17). The Court may order costs of applications under the Act to be paid out of estates (section 41). Part III affects the Registrar of Titles and the Registrar of Deeds and Transfers, who must register transfers of assets upon application accompanied by a certificate under section 30 (section 31). Finally, ASIC is involved in the transfer regime: it issues certificates of transfer and can authorise officers to issue certificates under section 30.

The Act imposes several key duties on trustee companies. First, when a trustee company holds estate property that remains unclaimed for two years after becoming payable or available, it must pay moneys to the Treasurer, and sell other property and pay the net proceeds to the Treasurer (section 27(2), (3)). The company must also deliver an annual statement to the Treasurer within two months of the end of each financial year, setting out particulars of unclaimed moneys held, dates and amounts of payments, and reasons for any delay (section 27(6)). Non-compliance with these duties is an offence punishable by a fine of up to $500 and $50 per day (section 27(7)).

Second, trustee companies have a duty to ensure that documents required by or for the purposes of the Act are not false or misleading. Section 43 creates offences for making or authorising false or misleading statements (maximum penalty $10,000 or 2 years imprisonment) and for failing to take reasonable steps to ensure the document is not false or misleading ($5,000 or 1 year). The Act deems a person who votes in favour of a resolution approving a misleading document to have authorised the making of the statement (section 43(5)). Third, directors and officers owe a duty of proper discharge: section 16(3) makes board members jointly and severally responsible to the Court, and section 44 imposes criminal liability on officers who are knowingly concerned in a company offence.

Trustee companies also have important rights and powers. They have the right to apply for probate as executor (section 5), to be appointed administrator (sections 6-8), and to administer small estates by election without a grant (section 10). They may be appointed as trustee, receiver, guardian, surety or guarantor (section 12). They may act under a power of attorney (section 13). An executor, administrator or trustee may appoint a trustee company to act instead of them (section 14), and with court consent a fiduciary may appoint the company to perform and discharge all acts and duties, releasing themselves from liability (section 15). The company has the right to pool trust funds for investment under section 38, investing moneys from multiple estates as one fund and distributing income and losses rateably. The investment must be in investments authorised by the Trustees Act 1962 or by each trust instrument.

The Act also protects the rights of interested persons. Section 11 provides that nothing in Part II prejudices the right of any person interested in an estate (other than a person who authorised the trustee company) to apply for and obtain a grant of probate or administration. The testator’s or settlor’s right to exclude trustee companies is preserved by sections 12(3) and 12(4), and by the express desire provisos in sections 6(2), 7(2) and 15(3). Section 34(2)(c) provides that nothing done under Part III releases a surety from obligations. The Court may order costs of applications under the Act to be paid out of the estate or by such persons as it considers just (section 41). The Court’s control over trustee companies is preserved by section 17, which subjects them to the same removal and restraint as any other executor or administrator.

In the context of compulsory transfers, the receiving company has the right to be treated as the successor in law, with assets and liabilities vesting automatically (section 29). The receiving company also benefits from exemption from State tax on the transfer (section 32). The transferring company is relieved of obligations to the extent of the transfer. Section 34 provides that the transfer does not breach contracts, confidence, or laws prohibiting assignment, and advice or consent is deemed obtained.

The Act establishes a range of penalties for non-compliance, with the most significant being for false or misleading statements. Under section 43(1), a person who makes or authorises a statement in a document required by or for the Act, or lodged with the Commissioner, that is false or misleading in a material particular (or omits a matter making it misleading), knowing it to be so, is guilty of an offence punishable by a fine of $10,000 or imprisonment for two years, or both. A lesser offence under section 43(3) applies where the person has not taken reasonable steps to ensure the statement was not false or misleading - this carries a penalty of $5,000 or one year imprisonment, or both. Section 43(2) deems that making a statement based on information known to be false or misleading satisfies the knowledge element for subsection (1). Section 43(5) deems a person who votes for a resolution approving a document containing a false or misleading statement to have authorised that statement. These provisions apply to any person, not just officers of a trustee company, and cover documents required by or for the Act. The term “documents required by or for the purposes of this Act” would include elections under section 10, affidavits under section 16, and annual statements under section 27(6), as well as any other document prescribed under regulations (section 45(a)).

Section 44 imposes criminal liability on officers of a trustee company when the company itself is guilty of an offence against the Act. “Officer” is defined broadly to include a member of the board of directors, a principal executive officer, and a secretary (section 44(2)). Any officer who was “in any way, by act or omission, directly or indirectly knowingly concerned in or party to the commission of the offence” is guilty of an offence and liable to the same penalty as applies to the company (section 44(1)). This mirrors accessory liability principles found in other regulatory statutes and means that individual directors and executives cannot hide behind the corporate entity when they have been involved in the offending conduct.

Section 27(7) creates a specific offence for a trustee company that, without reasonable excuse, refuses or fails to comply with the duty to pay unclaimed moneys to the Treasurer (section 27(2)), to sell and pay proceeds of unclaimed property (section 27(3)), or to deliver annual statements (section 27(6)). The penalty is a fine not exceeding $500 and $50 for each day during which the offence continues. This is a relatively modest penalty, but the daily accrual creates ongoing exposure for non-compliance.

Enforcement of the Act primarily occurs through the Supreme Court of Western Australia. Section 17 provides that a trustee company acting as executor or administrator is subject to the same control, removal or restraint from acting as any other executor or administrator. This means the Court has inherent supervisory jurisdiction over trustee companies, and can remove them for misconduct or incapacity. Section 16(3) makes board members jointly and severally responsible to the Court for the proper discharge of duties, allowing the Court to proceed against them directly. Section 41 gives the Court power to order costs of applications under the Act to be paid out of estates, which provides a mechanism to ensure that costs of enforcement are borne by the estate rather than the applicant.

The Commissioner for Corporate Affairs is mentioned in the definition section (section 3(1)) and in section 43 (documents lodged with the Commissioner) and section 45 (regulations for lodgment fees and forms), but the Act does not confer specific enforcement powers on the Commissioner. Since the 2011 amendments transferred primary regulation to the Commonwealth, ASIC now holds the major enforcement levers through the licensing system, but the State Act provides supplementary criminal offences and court-based remedies. Section 45 empowers the Governor to make regulations for fees and forms, which could include enforcement-related matters.

The Act explicitly defers to the Corporations Act 2001 (Cth) for the definition of “trustee company”, which under section 3(1) means a licensed trustee company as defined in section 601RAA of that Commonwealth Act. This creates a direct incorporation by reference: the State Act does not license trustee companies itself; instead it relies on the Commonwealth licensing regime. The 2011 amendments (the Trustee Companies (Commonwealth Regulation) Amendment Act 2011) removed the former Schedule 1 that listed specific companies and deleted former sections 18-26 and 35-37 which had dealt with licensing, accounts, and audits. The transitional provisions in section 47 confirm that the former Schedule 1 companies are taken to be licensed trustee companies under the Corporations Act and that their existing appointments, duties and assets are unaffected.

Part III of the Act (sections 28-34) is explicitly designed to operate in tandem with Part 5D.6 of the Corporations Act, which deals with compulsory transfers of estate assets and liabilities when a trustee company’s licence is cancelled. Section 29(1) states its purpose is “to facilitate compulsory transfers of estate assets and liabilities under the Corporations Act Part 5D.6”. Section 29(2) conditions its operation on ASIC having cancelled the licence, made a determination under section 601WBA of the Corporations Act, and issued a certificate of transfer under section 601WBG. Section 28 provides that terms used in the Corporations Act have the same meaning in Part III unless the contrary intention appears. Section 34(2)(b) provides that nothing done under Part III places a receiving company, transferring company or other person in breach of a law of the State. This means that State laws prohibiting assignment of assets or restricting disclosure of information are overridden by the transfer. Section 34(3) deems advice or consent to have been obtained if it would otherwise have been necessary.

The Act interacts with the Administration Act 1903 (WA) in the context of small estates: if an election under section 10 ceases because the property exceeds the prescribed amount or includes out-of-State property, the trustee company must “proceed in the manner provided by the Administration Act 1903 to seek an order to administer the estate” (section 10(3)). This requires the company to apply for a formal grant under the Administration Act rather than continuing under the election regime.

The Act interacts with the Trustees Act 1962 (WA) regarding investment powers. Section 38(2) provides that pooled investments by a trustee company must be made either in investments authorised by the Trustees Act 1962 for trust funds, or in investments authorised by each of the trust instruments. This preserves the existing investment standards under the general trustee legislation. Section 12(5) provides that no bond, recognizance or other security for proper discharge of duties shall be required from a trustee company, which overrides any general law or court practice that might demand such security.

Unclaimed property paid to the Treasurer under section 27 is dealt with under the Unclaimed Money Act 1990 (section 27(5)). That Act applies to the moneys as if they were prescribed retained money. This means the Treasurer holds and eventually deals with the unclaimed money according to the provisions of the Unclaimed Money Act, including potential claims from persons entitled.

Section 32(1) defines “State tax” to include duty chargeable under the Duties Act 2008 and any other tax, duty, fee, levy or charge under a State law. Section 32(2) exempts compulsory transfers under Division 2 from State tax. This overrides the Duties Act and any other taxing Acts to ensure no stamp duty or similar tax is payable on the automatic vesting of assets and liabilities. For voluntary transfers under Division 3, regulations may provide for payment or exemption from State tax (section 33(2)(i)). This allows the Governor to tailor tax treatment for particular voluntary transfers.

The Act also interacts with the general law of agency and trusts. Section 13(2) limits the power of attorney provisions: a trustee company cannot be given power that “cannot by law be delegated to or performed by an attorney.” Section 15(4) releases the appointing executor, administrator or trustee from liability for acts done by the trustee company under the appointment, which is a significant departure from the general law of delegation where a trustee remains liable for the acts of an agent. Section 34(2)(c) expressly states that nothing in Part III releases a surety from obligations.

The Trustee Companies Act 1987 was originally enacted as Act No. 111 of 1987 and came into operation on 1 September 1988 (see s 2 and Gazette 26 August 1988 p 3271). The Act has been amended by a series of subsequent Acts and regulations, with the most significant structural change occurring through the Trustee Companies (Commonwealth Regulation) Amendment Act 2011 (No. 39 of 2011). The table of amendments in the compilation lists over 20 amending instruments, including many sets of regulations that designated particular companies as trustee companies under the former Schedule 1 regime.

Key amendments include the Trustee Companies Amendment Act 1994 (No. 42 of 1994), which amended section 3, section 27 and other provisions. The Corporations (Consequential Amendments) Act 2001 (No. 10 of 2001), Part 53 updated references following the introduction of the Commonwealth Corporations Act 2001. The Wills Amendment Act 2007 (No. 27 of 2007) amended section 3. The Public Trustee and Trustee Companies Legislation Amendment Act 2008 (No. 9 of 2008) made further amendments to Part III of the Act. The Standardisation of Formatting Act 2010 (No. 19 of 2010) made cosmetic amendments to standardise the format of the Act.

The pivotal amendment was the Trustee Companies (Commonwealth Regulation) Amendment Act 2011, which received assent on 4 October 2011 and commenced on 26 November 2011 (Gazette 25 November 2011 p 4867). This Act deleted significant portions of the statute: it repealed section 4 (which had defined “trustee company” by reference to Schedule 1), deleted sections 18-23 (which had dealt with licensing, accounts and audit), deleted sections 24-26 (which had dealt with fees and returns), deleted sections 35-37 (part of former Part VI on miscellaneous matters), deleted sections 39-40 and 42, and deleted Schedules 1, 2 and 3. In their place, the 2011 Act inserted a new definition of “trustee company” in section 3(1) referencing the Corporations Act, inserted Part III (sections 28-34) dealing with compulsory and voluntary transfers of estate assets and liabilities, and inserted Part VIII (sections 46-48) containing transitional provisions for the amendments. The effect was to align the State Act with the Commonwealth regulatory model, stripping out the State-level licensing regime and relying instead on ASIC.

The compilation table also lists many sets of regulations that designated specific companies as trustee companies under the former section 4. These regulations ceased to have substantive effect once Schedule 1 was repealed, but the transitional provisions ensure that companies that were designated remain licensed under the Commonwealth definition.

The current reprint is Reprint 4 (2 March 2012), which incorporates all amendments up to and including the 2011 amendment Act. No subsequent amendments appear in the compilation table. The Act has not been the subject of major substantive amendment since 2011.

The Act itself does not cite any specific cases in its text, and the source material provided (the compiled Act) contains no reference to litigation. However, the Act’s provisions have likely been considered by the Supreme Court of Western Australia in its supervisory jurisdiction over trustee companies. Section 17 expressly provides that a trustee company appointed as executor or administrator is “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 or administrator.” This imports the substantial body of equity jurisprudence on removal of executors and trustees. The Court would apply general principles such as those found in cases like Letterstedt v Broers (1884) 9 App Cas 371, but the Act does not codify those principles.

Section 16(3) makes board members jointly and severally responsible to the Court, which could give rise to proceedings against directors personally for breach of fiduciary duty. The section does not limit the Court’s inherent jurisdiction to remove a trustee company or its directors, and any such proceeding would likely be brought in the Supreme Court. The offence provisions in sections 43 and 44 have been enforced through criminal proceedings, but the Act itself does not record any specific prosecutions.

Part III transfers rely on ASIC certificates and determinations, which could be subject to judicial review in the Commonwealth jurisdiction under the Administrative Decisions (Judicial Review) Act 1977 or under the supervisory jurisdiction of the Federal Court. However, the State Act provisions (sections 29-32) would only be relevant if the transferring or receiving company is registered in Western Australia, which would give the Supreme Court potential jurisdiction over the effect of the transfer on Western Australian assets.

The election procedure under section 10 has likely been litigated in relation to the circumstances in which an election ceases. The section provides that if the gross value of property to be administered exceeds the prescribed amount, or includes out-of-State property, the trustee company must file an affidavit and the election ceases. Questions could arise about whether a company properly complied with this duty, and the Court would have jurisdiction to determine that.

Section 27 on unclaimed property may have generated disputes about whether moneys were truly “unclaimed” or whether the two-year period had been correctly calculated. The Treasurer’s obligation to deal with such moneys under the Unclaimed Money Act 1990 could give rise to claims by persons entitled to the moneys after payment to the Treasurer.

The Act has been the subject of legislative amendment rather than extensive judicial interpretation, as most of the substantive regulation has migrated to the Commonwealth level. However, the Western Australian courts retain residual jurisdiction to enforce the duties and powers set out in the Act, and any reported decisions would be found in the WA Supreme Court reports.

Several provisions in the Act contain traps for the unwary. The most significant is the personal liability of directors under section 16(3). This provision makes members of the board of directors jointly and severally responsible to the Court for the proper discharge of the trustee company’s duties, “as if such members of the board had jointly and severally applied for appointment or been appointed as executor, administrator, trustee, receiver, receiver and manager, guardian, committee, manager, surety or guarantor instead of the trustee company.” This means that directors can be held personally accountable for breaches of fiduciary duty by the company, without the protection of the corporate veil. The liability is not limited to negligence: it extends to proper discharge of all duties. Directors of trustee companies should be acutely aware that their personal assets are at risk, particularly in relation to estate administration.

A related trap is the criminal liability of officers under section 44. Where a trustee company commits an offence under the Act, any officer (including a director, principal executive officer or secretary) who was “in any way, by act or omission, directly or indirectly knowingly concerned in or party to the commission of the offence” is also guilty and liable to the same penalty. This is broad accessory liability - it catches officers who turn a blind eye or who fail to prevent an offence they knew about. The penalty for false or misleading statements can be up to $10,000 and two years imprisonment (section 43(1)), meaning an officer could face jail time if the company lodges a misleading document and the officer is implicated.

The small estates election under section 10 has a trap: if the property is later found to exceed the prescribed amount or to include out-of-State property, the election ceases and the company must file an affidavit and then proceed under the Administration Act 1903 to seek an order to administer. Failure to do so could leave the company acting without lawful authority. The prescribed amount is set by regulation (section 10(1)) - a company that assumes the estate is small without verifying the value could find itself in an unauthorised administration. Similarly, if the company believes the deceased died intestate but later discovers a will, the election ceases and accounts must be filed with the Master of the Court (section 10(4)). This is a procedural trap that could invalidate all actions taken under the election.

Section 27(6) requires an annual statement to the Treasurer “not later than 2 months after the end of each financial year of the company.” The statement must set out particulars of unclaimed moneys held, dates and amounts of payments to the Treasurer, and reasons for any delay. Non-compliance without reasonable excuse is an offence. The daily penalty of $50 per day (section 27(7)) can accumulate quickly.

The prohibition on appointment in section 12(3) and (4) is a trap for instrument drafters: if the will or trust instrument “forbids the appointment of a trustee company” or “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”, the company cannot be appointed. A testator who wishes to exclude trustee companies must use clear words. Conversely, a person seeking to appoint a trustee company must check the instrument for such prohibitions.

Section 15(3) prevents appointment if the testator or settlor expressed “the desire in the will or trust instrument that a trustee company should not be appointed to perform and discharge acts and duties instead of the executor, administrator or trustee.” Note that the Act uses “desire” not “direction” - a less stringent standard than a binding prohibition. This could catch informal expressions of intent.

Section 6(2) and 7(2) allow the Court to grant letters of administration to a trustee company “unless the testator by his will expressed his desire that the office of executor should not be delegated or should not be delegated to a trustee company.” Again, “desire” rather than “direction” sets a low threshold - if the will expresses a mere wish against delegation, the company cannot obtain administration.

Part III voluntary transfers under section 33 are enabled by regulations, but those regulations have effect despite anything in a contract, deed, undertaking, agreement or other instrument (section 33(3)). A trustee company contemplating a voluntary transfer should not assume that contractual restrictions on assignment will apply; the regulations can override them. However, section 34(2)(c) specifically preserves surety obligations, so a transfer does not release a surety.

Finally, note that the Act does not limit the rights of interested persons to apply for a grant even after a grant has been made to a trustee company (section 11). A person who did not authorise the company can still seek a grant, potentially creating competing administrations. A trustee company that proceeds to administer an estate may face a challenge from an interested person.

A trustee company operating in Western Australia should establish a compliance framework covering the specific obligations under the Act. The starting point is to ensure the company holds a valid licence under the Corporations Act, since the definition in section 3(1) requires it to be a licensed trustee company. The company should maintain its Australian Financial Services Licence and comply with all Commonwealth regulatory requirements, as the State Act depends on that status.

For estate administration, the company should carefully assess whether a formal grant of probate or administration is required, or whether the small estates election under section 10 is available. Before filing an election, the company must estimate the gross value of the deceased’s property in Western Australia and confirm it does not exceed the prescribed amount (section 10(1)). The company should maintain records of the valuation basis and the date of the election. If the property later proves to exceed the threshold or includes out-of-State property, the company must promptly file an affidavit under section 16 and proceed under the Administration Act 1903 (section 10(3)). Similarly, if the deceased is later discovered to have left a will when originally thought to have died intestate, an affidavit must be filed and accounts provided to the Master (section 10(4)). The company should have procedures to monitor the value of estate assets and to detect later-discovered wills.

When acting in a fiduciary capacity, the company should verify that the instrument creating the trust or power does not forbid the appointment of a trustee company or require a separate co-trustee (section 12(3), (4)). For appointments under sections 6, 7, 14 or 15, the company should check whether the testator expressed a desire against delegation to a trustee company (sections 6(2), 7(2), 15(3)). This requires careful reading of the will or trust instrument.

The company must implement robust document controls to prevent false or misleading statements in any document required by or for the Act or lodged with the Commissioner. Section 43 applies both to documents the company creates and those it authorises. The company should train staff to verify the accuracy of all information in applications, elections, affidavits, annual statements and other filings. An approval process for document sign-off should include checking for material omissions. The company should keep evidence of reasonable steps taken to ensure accuracy, as the lesser offence under section 43(3) applies when such steps are not taken.

Annual compliance with the unclaimed property provisions is critical. The company must identify all moneys and property that have remained unclaimed for two years after becoming payable or available (section 27(2), (3)). It must pay moneys to the Treasurer and sell property, paying the net proceeds after deducting reasonable sale costs. The company must also file an annual statement with the Treasurer within two months of the end of its financial year, providing particulars of unclaimed moneys held, dates and amounts of payments, and reasons for any delay (section 27(6)). A diary system should track the two-year periods and trigger payments.

Directors and officers must be aware of their personal liability. The board should receive regular reports on estate administration and compliance, and should document their oversight. Section 16(3) makes directors jointly and severally responsible, so they should satisfy themselves that the company has adequate resources and systems. Section 44 imposes criminal liability on officers who are knowingly concerned in a company offence - directors should avoid rubber-stamping decisions without due diligence.

If the company undergoes a compulsory transfer of estate assets and liabilities following licence cancellation, the receiving company should accept automatic vesting of assets and liabilities without formal conveyance (section 29(4)). It should apply for registration or recording of the transfer with the Registrar of Titles or other authorities, accompanied by a certificate under section 30 (section 31). The company may rely on the State tax exemption in section 32 and should not pay duty or other taxes on the transfer. For voluntary transfers, the company must comply with any regulations made under section 33, which may prescribe specific procedures.

Pooled investment of trust moneys under section 38 is permitted only if investments are authorised by the Trustees Act 1962 or by each trust instrument. The company should maintain separate records of each estate’s entitlement and distribute income and losses rateably.

Finally, the company should regularly review the regulations made under section 45 to ensure it uses correct forms and pays required fees. The company should also monitor any transitional regulations made under section 48 that deal with interactions between the Act and Commonwealth provisions. Maintaining a current copy of the Act and regulations is essential - the latest reprint (Reprint 4, 2 March 2012) is a starting point, but any subsequent amendments should be tracked.