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Queensland act
The Act restates and modernises Queensland trustee law—clarifying who can be trustee, appointment/removal, trustee duties, investment powers, delegation, custodian-managing arrangements, charitable‑trust procedures, and extensive transitional rules. It applies broadly (often overriding trust terms) and creates new statutory protections for third parties.
It chiefly affects trustees (higher duties, record‑keeping, compliance costs), beneficiaries (clearer access and remedies), courts and the Attorney‑General (expanded supervisory powers). It matters because it standardises practice, shifts compliance costs to trusts, and increases court/executive oversight of trust administration.
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Direct links to the current provisions in Trusts Act 2025.
This Act may be cited as the Trusts Act 2025 .
This Act commences on a day to be fixed by proclamation.
This Act applies in relation to a trust whether created before or after, or partly before and partly after, the commencement of this Act, except to the extent this Act or another Act provides otherwise. For an example of an Act providing otherwise, see the Land Act 1994 , section 90 . Also, this Act applies despite a contrary intention in any trust instrument, except to the extent this Act provides otherwise. This Act does not prevent a settlor conferring on a trustee any powers additional to or greater than those conferred under this Act. Any additional or greater power conferred on a trustee by a settlor has effect and is exercisable in the same way, and with the same consequences, as a power conferred under this Act. Subsection (4) applies subject to an express contrary intention in the trust instrument. The powers conferred on a trustee under this Act are in addition to the powers conferred on the trustee under any other Act. In this section— trustee includes a person exercising the powers of a trustee under this Act. (sec.3-ssec.1) This Act applies in relation to a trust whether created before or after, or partly before and partly after, the commencement of this Act, except to the extent this Act or another Act provides otherwise. For an example of an Act providing otherwise, see the Land Act 1994 , section 90 . (sec.3-ssec.2) Also, this Act applies despite a contrary intention in any trust instrument, except to the extent this Act provides otherwise. (sec.3-ssec.3) This Act does not prevent a settlor conferring on a trustee any powers additional to or greater than those conferred under this Act. (sec.3-ssec.4) Any additional or greater power conferred on a trustee by a settlor has effect and is exercisable in the same way, and with the same consequences, as a power conferred under this Act. (sec.3-ssec.5) Subsection (4) applies subject to an express contrary intention in the trust instrument. (sec.3-ssec.6) The powers conferred on a trustee under this Act are in addition to the powers conferred on the trustee under any other Act. (sec.3-ssec.7) In this section— trustee includes a person exercising the powers of a trustee under this Act.
This Act binds all persons, including the State and, to the extent the legislative power of the Parliament permits, the Commonwealth and the other States.
The dictionary in schedule 1 defines particular words used in this Act.
Trust includes— an implied, resulting, bare or constructive trust; and the duties incidental to the office of a personal representative.
Trustee includes— a trustee corporation; and another corporation in which property subject to a trust is vested; and a personal representative; and a statutory trustee. A person, other than a person under a legal incapacity, is a statutory trustee in relation to trust property comprising land if— the person is beneficially entitled to possession of the land, or to the rents and profits of the land; and apart from this section, there is no trustee of the land. See part 14 in relation to statutory trustees. (sec.7-ssec.1) Trustee includes— a trustee corporation; and another corporation in which property subject to a trust is vested; and a personal representative; and a statutory trustee. (sec.7-ssec.2) A person, other than a person under a legal incapacity, is a statutory trustee in relation to trust property comprising land if— the person is beneficially entitled to possession of the land, or to the rents and profits of the land; and apart from this section, there is no trustee of the land. See part 14 in relation to statutory trustees.
The trust instrument , in relation to a trust, is any instrument creating the trust, as modified by all validly executed amendments. In this section— instrument includes an Act. (sec.8-ssec.1) The trust instrument , in relation to a trust, is any instrument creating the trust, as modified by all validly executed amendments. (sec.8-ssec.2) In this section— instrument includes an Act.
Trust property includes— property settled on any trust; and property subject to any implied, resulting, bare or constructive trust; and property subject to any trust or direction for sale, however arising; and land vested in a person for an estate for the person’s own life or any other life, or for a term of years determinable on life not being a mere lease at rent, or for any greater estate not being a fee simple absolute; and land in relation to which a person has, under a will, a personal licence to reside for the person’s own life or any other life, or for any lesser period; and the estate of a deceased person. A reference in this Act to trust property includes a reference to a part of the trust property. (sec.9-ssec.1) Trust property includes— property settled on any trust; and property subject to any implied, resulting, bare or constructive trust; and property subject to any trust or direction for sale, however arising; and land vested in a person for an estate for the person’s own life or any other life, or for a term of years determinable on life not being a mere lease at rent, or for any greater estate not being a fee simple absolute; and land in relation to which a person has, under a will, a personal licence to reside for the person’s own life or any other life, or for any lesser period; and the estate of a deceased person. (sec.9-ssec.2) A reference in this Act to trust property includes a reference to a part of the trust property.
A person has capacity for a matter only if the person is capable of— understanding the nature and effect of decisions about the matter; and freely and voluntarily making decisions about the matter; and communicating the decisions in some way. A person has impaired capacity for a matter if the person does not have capacity for the matter. administering a trust (sec.10-ssec.1) A person has capacity for a matter only if the person is capable of— understanding the nature and effect of decisions about the matter; and freely and voluntarily making decisions about the matter; and communicating the decisions in some way. (sec.10-ssec.2) A person has impaired capacity for a matter if the person does not have capacity for the matter.
The established rules of law relating to what is charitable , as in force immediately before the commencement, continue to apply. the relief of poverty the advancement of education the advancement of religion Despite any rule of law to the contrary, it is declared that it is and always has been charitable to provide, or to help in providing, facilities for recreation or other leisure time activity, if the facilities are provided in the interests of social welfare. For subsection (2) , facilities are provided in the interests of social welfare only if— the facilities are provided with the object of improving the conditions of life for the persons for whom the facilities are primarily intended; and either— those persons have need of the facilities because of their youth, age, infirmity or disability, poverty or social and economic circumstances; or the facilities are to be available to the members of the public at large or to a substantial section of the public at large. Nothing in this section limits the requirement that, in order to be charitable, a gift, trust or institution must be for the public benefit. (sec.11-ssec.1) The established rules of law relating to what is charitable , as in force immediately before the commencement, continue to apply. the relief of poverty the advancement of education the advancement of religion (sec.11-ssec.2) Despite any rule of law to the contrary, it is declared that it is and always has been charitable to provide, or to help in providing, facilities for recreation or other leisure time activity, if the facilities are provided in the interests of social welfare. (sec.11-ssec.3) For subsection (2) , facilities are provided in the interests of social welfare only if— the facilities are provided with the object of improving the conditions of life for the persons for whom the facilities are primarily intended; and either— those persons have need of the facilities because of their youth, age, infirmity or disability, poverty or social and economic circumstances; or the facilities are to be available to the members of the public at large or to a substantial section of the public at large. (sec.11-ssec.4) Nothing in this section limits the requirement that, in order to be charitable, a gift, trust or institution must be for the public benefit.
In this Act, a reference to a trustee lending or investing trust funds on the security of property includes a reference to a trustee lending or investing trust funds on a new security or on the transfer of an existing security.
The following persons can not be appointed as a trustee— a child; an individual who is an insolvent under administration; a corporation that is a Chapter 5 body corporate; a person who is disqualified from being appointed as a trustee by an order made under section 168 . The purported appointment of a person mentioned in subsection (1) (a) , (b) , (c) or (d) is of no effect. Subsections (1) (b) and (c) and (2) do not affect the appointment of— an individual who becomes an insolvent under administration after the individual’s appointment as trustee has taken effect; or a corporation that becomes a Chapter 5 body corporate after the corporation’s appointment as trustee has taken effect. See, however— sections 20 , 23 and 29 in relation to the replacement and removal of a trustee who becomes an insolvent under administration; and sections 20 and 29 in relation to the replacement and removal of a trustee that becomes a Chapter 5 body corporate. This section does not apply in relation to the appointment of a personal representative. Also, to remove any doubt, it is declared that this section does not limit the court’s power to declare that a person mentioned in subsection (1) (a) , (b) , (c) or (d) holds property as a trustee. (sec.13-ssec.1) The following persons can not be appointed as a trustee— a child; an individual who is an insolvent under administration; a corporation that is a Chapter 5 body corporate; a person who is disqualified from being appointed as a trustee by an order made under section 168 . (sec.13-ssec.2) The purported appointment of a person mentioned in subsection (1) (a) , (b) , (c) or (d) is of no effect. (sec.13-ssec.3) Subsections (1) (b) and (c) and (2) do not affect the appointment of— an individual who becomes an insolvent under administration after the individual’s appointment as trustee has taken effect; or a corporation that becomes a Chapter 5 body corporate after the corporation’s appointment as trustee has taken effect. See, however— sections 20 , 23 and 29 in relation to the replacement and removal of a trustee who becomes an insolvent under administration; and sections 20 and 29 in relation to the replacement and removal of a trustee that becomes a Chapter 5 body corporate. (sec.13-ssec.4) This section does not apply in relation to the appointment of a personal representative. (sec.13-ssec.5) Also, to remove any doubt, it is declared that this section does not limit the court’s power to declare that a person mentioned in subsection (1) (a) , (b) , (c) or (d) holds property as a trustee.
This section applies to a trust other than— a charitable trust; or a trust that is, or is created for the purpose of becoming, a self managed superannuation fund within the meaning of the Superannuation Industry (Supervision) Act 1993 (Cwlth) . The trust may not have more than 4 trustees. If more than 4 persons are named as trustees under the trust instrument— the first 4 persons named, who are able and willing to act as trustees and whose appointments are otherwise able to take effect, are the trustees; and a person who has impaired capacity for administering the trust a person who can not, under section 13 , be appointed as a trustee the appointment of the other persons is of no effect. A custodian trustee is not to be counted for the purpose of any limitation on the number of trustees the trust may have. See part 4 in relation to custodian trustees. This section applies subject to section 15 . (sec.14-ssec.1) This section applies to a trust other than— a charitable trust; or a trust that is, or is created for the purpose of becoming, a self managed superannuation fund within the meaning of the Superannuation Industry (Supervision) Act 1993 (Cwlth) . (sec.14-ssec.2) The trust may not have more than 4 trustees. (sec.14-ssec.3) If more than 4 persons are named as trustees under the trust instrument— the first 4 persons named, who are able and willing to act as trustees and whose appointments are otherwise able to take effect, are the trustees; and a person who has impaired capacity for administering the trust a person who can not, under section 13 , be appointed as a trustee the appointment of the other persons is of no effect. (sec.14-ssec.4) A custodian trustee is not to be counted for the purpose of any limitation on the number of trustees the trust may have. See part 4 in relation to custodian trustees. (sec.14-ssec.5) This section applies subject to section 15 .
This section applies in relation to a trust other than a trust mentioned in section 14 (1) (a) or (b) . The court may, on application, make an order approving the appointment of more than 4 trustees of the trust if satisfied it is appropriate to do so in the particular circumstances of the case. See section 163 in relation to the persons who may apply to the court for particular orders. The number of trustees approved by an order made under subsection (2) is the approved number . If the court approves the appointment of 6 trustees, the approved number is 6. If the court makes an order under subsection (2) in relation to a trust, section 14 applies to the trust as if— the reference in section 14 (2) to 4 trustees were a reference to the approved number of trustees; and a reference in section 14 (3) to 4 persons were a reference to the approved number of persons. (sec.15-ssec.1) This section applies in relation to a trust other than a trust mentioned in section 14 (1) (a) or (b) . (sec.15-ssec.2) The court may, on application, make an order approving the appointment of more than 4 trustees of the trust if satisfied it is appropriate to do so in the particular circumstances of the case. See section 163 in relation to the persons who may apply to the court for particular orders. (sec.15-ssec.3) The number of trustees approved by an order made under subsection (2) is the approved number . If the court approves the appointment of 6 trustees, the approved number is 6. (sec.15-ssec.4) If the court makes an order under subsection (2) in relation to a trust, section 14 applies to the trust as if— the reference in section 14 (2) to 4 trustees were a reference to the approved number of trustees; and a reference in section 14 (3) to 4 persons were a reference to the approved number of persons.
If a local government is appointed as trustee of a trust, the local government may act in the administration of the trust for the purpose of, and according to, the trust, even if the purpose is not a function of local government. Subsection (1) applies whether or not the local government is an original trustee of the trust. However, if the local government is not an original trustee of the trust, subsection (1) applies subject to a contrary intention in the trust instrument. (sec.16-ssec.1) If a local government is appointed as trustee of a trust, the local government may act in the administration of the trust for the purpose of, and according to, the trust, even if the purpose is not a function of local government. (sec.16-ssec.2) Subsection (1) applies whether or not the local government is an original trustee of the trust. (sec.16-ssec.3) However, if the local government is not an original trustee of the trust, subsection (1) applies subject to a contrary intention in the trust instrument.
This part applies in relation to a trustee who is the personal representative of the estate of a deceased person only if, and to the extent, the personal representative— has completed the administration of all, or a part, of the estate; and holds the estate, or a part of the estate, in the capacity of trustee only.
For this part, if there is 1 appointor for a trust, the appointor is not able and willing to act as appointor for the trust if— the appointor does not exercise the power of appointment within a reasonable period; or the appointor is otherwise not able and willing to act as appointor. For this part, if there are 2 or more appointors for a trust, the appointors are not able and willing to act as appointors for the trust if— the appointors can not, within a reasonable period— if the trust instrument provides for the appointors to exercise the power of appointment by majority—reach a majority decision on the appointment; or otherwise—reach a unanimous decision on the appointment; or the appointors are otherwise not able and willing to act as appointors. (sec.18-ssec.1) For this part, if there is 1 appointor for a trust, the appointor is not able and willing to act as appointor for the trust if— the appointor does not exercise the power of appointment within a reasonable period; or the appointor is otherwise not able and willing to act as appointor. (sec.18-ssec.2) For this part, if there are 2 or more appointors for a trust, the appointors are not able and willing to act as appointors for the trust if— the appointors can not, within a reasonable period— if the trust instrument provides for the appointors to exercise the power of appointment by majority—reach a majority decision on the appointment; or otherwise—reach a unanimous decision on the appointment; or the appointors are otherwise not able and willing to act as appointors.
If there is an appointor for a trust, the provisions of this division relating to appointors apply, whether the appointment of a trustee is to be made in a circumstance mentioned in this division or in the trust instrument. However, if an appointor is authorised under this division to appoint a trustee in a circumstance that is also mentioned in the trust instrument, an appointment made under this division in that circumstance is subject to the terms applying under the trust instrument to an appointment in that circumstance. If a will names a person as trustee of a trust created by the will and the person is dead, the provisions of this division that apply if a trustee is dead apply— whether the person is named as a sole trustee or otherwise of the trust; and whether the death of the person happened before or after the death of the testator. (sec.19-ssec.1) If there is an appointor for a trust, the provisions of this division relating to appointors apply, whether the appointment of a trustee is to be made in a circumstance mentioned in this division or in the trust instrument. (sec.19-ssec.2) However, if an appointor is authorised under this division to appoint a trustee in a circumstance that is also mentioned in the trust instrument, an appointment made under this division in that circumstance is subject to the terms applying under the trust instrument to an appointment in that circumstance. (sec.19-ssec.3) If a will names a person as trustee of a trust created by the will and the person is dead, the provisions of this division that apply if a trustee is dead apply— whether the person is named as a sole trustee or otherwise of the trust; and whether the death of the person happened before or after the death of the testator.
This section applies if a trustee of a trust (a relevant trustee )— is dead; or declares, by instrument, that the trustee wishes to be discharged from all or part of the trusts reposed in the trustee; or refuses to act as trustee; or is unfit to act as trustee; or is incapable of acting as trustee, including, for example, because of having impaired capacity for administering the trust; or becomes an insolvent under administration; or is disqualified from managing corporations under the Corporations Act , part 2D.6 and either— does not have permission under section 206GAB or 206G of that Act to manage all corporations; or has permission under section 206GAB or 206G of that Act to manage all corporations, but the permission is subject to exceptions or conditions; or is a corporation that— stops carrying on business; or becomes a Chapter 5 body corporate; or is deregistered or otherwise ceases to exist; or is removed under the trust instrument. For subsection (1) , it does not matter whether the relevant trustee is an original trustee of the trust or was appointed by the court or otherwise. The following persons may, by instrument, appoint 1 or more persons as trustees to replace the relevant trustee— if there is an appointor for the trust—the appointor; if there is no appointor for the trust, or no appointor who is able and willing to act as an appointor—the continuing trustee of the trust or, if there is more than 1 continuing trustee, the continuing trustees. See section 14 in relation to the limit applying to the number of trustees of particular trusts. See also section 166 in relation to the court’s power to appoint and remove trustees. Subject to a contrary intention in the trust instrument, an appointor for the trust may appoint themself as a trustee under subsection (3) (a) . In this section— continuing trustee includes a relevant trustee mentioned in subsection (1) (b) or (c) who is willing to act under subsection (3) (b) . (sec.20-ssec.1) This section applies if a trustee of a trust (a relevant trustee )— is dead; or declares, by instrument, that the trustee wishes to be discharged from all or part of the trusts reposed in the trustee; or refuses to act as trustee; or is unfit to act as trustee; or is incapable of acting as trustee, including, for example, because of having impaired capacity for administering the trust; or becomes an insolvent under administration; or is disqualified from managing corporations under the Corporations Act , part 2D.6 and either— does not have permission under section 206GAB or 206G of that Act to manage all corporations; or has permission under section 206GAB or 206G of that Act to manage all corporations, but the permission is subject to exceptions or conditions; or is a corporation that— stops carrying on business; or becomes a Chapter 5 body corporate; or is deregistered or otherwise ceases to exist; or is removed under the trust instrument. (sec.20-ssec.2) For subsection (1) , it does not matter whether the relevant trustee is an original trustee of the trust or was appointed by the court or otherwise. (sec.20-ssec.3) The following persons may, by instrument, appoint 1 or more persons as trustees to replace the relevant trustee— if there is an appointor for the trust—the appointor; if there is no appointor for the trust, or no appointor who is able and willing to act as an appointor—the continuing trustee of the trust or, if there is more than 1 continuing trustee, the continuing trustees. See section 14 in relation to the limit applying to the number of trustees of particular trusts. See also section 166 in relation to the court’s power to appoint and remove trustees. (sec.20-ssec.4) Subject to a contrary intention in the trust instrument, an appointor for the trust may appoint themself as a trustee under subsection (3) (a) . (sec.20-ssec.5) In this section— continuing trustee includes a relevant trustee mentioned in subsection (1) (b) or (c) who is willing to act under subsection (3) (b) .
This section applies if all of the following apply— the last continuing trustee of a trust is dead; there is no appointor for the trust, or no appointor who is able and willing to act under section 20 to appoint a trustee to replace the last continuing trustee; if the trust instrument includes a mechanism, other than the appointment of an appointor, for appointing a trustee to replace the last continuing trustee—an appointment of a trustee under the mechanism has not taken effect within a reasonable period after the death of the last continuing trustee. For subsection (1) , it does not matter whether the last continuing trustee was an original trustee of the trust or was appointed by the court or otherwise. The personal representative of the last continuing trustee may, by instrument, appoint 1 or more persons as trustees to replace the last continuing trustee. See section 14 in relation to the limit applying to the number of trustees of particular trusts. See also section 166 in relation to the court’s power to appoint and remove trustees. The personal representative of the last continuing trustee— is taken to have always had the power of appointment conferred under subsection (3) ; and if the personal representative is the executor, whether original or by representation, of the last continuing trustee’s will—may exercise the power of appointment conferred under subsection (3) without the agreement of any executor named in the trustee’s will who has not proved the trustee’s will. Subject to a contrary intention in the trust instrument, the personal representative of the last continuing trustee may appoint themself as a trustee under subsection (3) . If there is more than 1 personal representative of the last continuing trustee, the personal representatives must exercise the power of appointment under subsection (3) jointly. In this section— personal representative , of the last continuing trustee of a trust, does not include an executor named in the trustee’s will who has not proved the trustee’s will. (sec.21-ssec.1) This section applies if all of the following apply— the last continuing trustee of a trust is dead; there is no appointor for the trust, or no appointor who is able and willing to act under section 20 to appoint a trustee to replace the last continuing trustee; if the trust instrument includes a mechanism, other than the appointment of an appointor, for appointing a trustee to replace the last continuing trustee—an appointment of a trustee under the mechanism has not taken effect within a reasonable period after the death of the last continuing trustee. (sec.21-ssec.2) For subsection (1) , it does not matter whether the last continuing trustee was an original trustee of the trust or was appointed by the court or otherwise. (sec.21-ssec.3) The personal representative of the last continuing trustee may, by instrument, appoint 1 or more persons as trustees to replace the last continuing trustee. See section 14 in relation to the limit applying to the number of trustees of particular trusts. See also section 166 in relation to the court’s power to appoint and remove trustees. (sec.21-ssec.4) The personal representative of the last continuing trustee— is taken to have always had the power of appointment conferred under subsection (3) ; and if the personal representative is the executor, whether original or by representation, of the last continuing trustee’s will—may exercise the power of appointment conferred under subsection (3) without the agreement of any executor named in the trustee’s will who has not proved the trustee’s will. (sec.21-ssec.5) Subject to a contrary intention in the trust instrument, the personal representative of the last continuing trustee may appoint themself as a trustee under subsection (3) . (sec.21-ssec.6) If there is more than 1 personal representative of the last continuing trustee, the personal representatives must exercise the power of appointment under subsection (3) jointly. (sec.21-ssec.7) In this section— personal representative , of the last continuing trustee of a trust, does not include an executor named in the trustee’s will who has not proved the trustee’s will.
This section applies if all of the following apply— the last continuing trustee of a trust is incapable of acting as trustee because the trustee has impaired capacity for administering the trust; there is no appointor for the trust, or no appointor who is able and willing to act under section 20 to appoint a trustee to replace the last continuing trustee; if the trust instrument includes a mechanism, other than the appointment of an appointor, for appointing a trustee to replace the last continuing trustee—an appointment of a trustee under the mechanism has not taken effect within a reasonable period after the later of the following to happen to the last continuing trustee— becoming the last continuing trustee; becoming a person with impaired capacity for administering the trust; an administrator or attorney for the last continuing trustee is authorised, under their appointment as administrator or attorney, to exercise power for all financial matters for the trustee. For subsection (1) , it does not matter whether the last continuing trustee is an original trustee of the trust or was appointed by the court or otherwise. The administrator or attorney may, by instrument, appoint 1 or more persons as trustees to replace the last continuing trustee. See section 14 in relation to the limit applying to the number of trustees of particular trusts. See also section 166 in relation to the court’s power to appoint and remove trustees. The administrator or attorney may appoint themself as a trustee under subsection (3) . If there is more than 1 administrator or more than 1 attorney for the last continuing trustee, the administrators or attorneys must exercise the power of appointment under subsection (3) jointly. To remove any doubt, it is declared that— the exercise of the power of appointment under subsection (3) is not made in the capacity of administrator or attorney for the last continuing trustee; and neither the Guardianship and Administration Act 2000 nor the Powers of Attorney Act 1998 applies in relation to the exercise of the power of appointment. This section applies subject to a contrary intention in— the trust instrument; or the order or instrument by which the administrator or attorney is appointed. (sec.22-ssec.1) This section applies if all of the following apply— the last continuing trustee of a trust is incapable of acting as trustee because the trustee has impaired capacity for administering the trust; there is no appointor for the trust, or no appointor who is able and willing to act under section 20 to appoint a trustee to replace the last continuing trustee; if the trust instrument includes a mechanism, other than the appointment of an appointor, for appointing a trustee to replace the last continuing trustee—an appointment of a trustee under the mechanism has not taken effect within a reasonable period after the later of the following to happen to the last continuing trustee— becoming the last continuing trustee; becoming a person with impaired capacity for administering the trust; an administrator or attorney for the last continuing trustee is authorised, under their appointment as administrator or attorney, to exercise power for all financial matters for the trustee. (sec.22-ssec.2) For subsection (1) , it does not matter whether the last continuing trustee is an original trustee of the trust or was appointed by the court or otherwise. (sec.22-ssec.3) The administrator or attorney may, by instrument, appoint 1 or more persons as trustees to replace the last continuing trustee. See section 14 in relation to the limit applying to the number of trustees of particular trusts. See also section 166 in relation to the court’s power to appoint and remove trustees. (sec.22-ssec.4) The administrator or attorney may appoint themself as a trustee under subsection (3) . (sec.22-ssec.5) If there is more than 1 administrator or more than 1 attorney for the last continuing trustee, the administrators or attorneys must exercise the power of appointment under subsection (3) jointly. (sec.22-ssec.6) To remove any doubt, it is declared that— the exercise of the power of appointment under subsection (3) is not made in the capacity of administrator or attorney for the last continuing trustee; and neither the Guardianship and Administration Act 2000 nor the Powers of Attorney Act 1998 applies in relation to the exercise of the power of appointment. (sec.22-ssec.7) This section applies subject to a contrary intention in— the trust instrument; or the order or instrument by which the administrator or attorney is appointed.
This section applies if all of the following apply— the last continuing trustee of a trust is an insolvent under administration; there is no appointor for the trust, or no appointor who is able and willing to act under section 20 to appoint a trustee to replace the last continuing trustee; if the trust instrument includes a mechanism, other than the appointment of an appointor, for appointing a trustee to replace the last continuing trustee—an appointment of a trustee under the mechanism has not taken effect within a reasonable period after the later of the following to happen to the last continuing trustee— becoming the last continuing trustee; becoming an insolvent under administration. For subsection (1) , it does not matter whether the last continuing trustee is an original trustee of the trust or was appointed by the court or otherwise. Subject to a contrary intention in the trust instrument, the last continuing trustee may, by instrument, appoint 1 or more persons as trustees to replace themself. See section 14 in relation to the limit applying to the number of trustees of particular trusts. See also section 166 in relation to the court’s power to appoint and remove trustees. The power conferred under subsection (3) is a personal right only of the last continuing trustee. (sec.23-ssec.1) This section applies if all of the following apply— the last continuing trustee of a trust is an insolvent under administration; there is no appointor for the trust, or no appointor who is able and willing to act under section 20 to appoint a trustee to replace the last continuing trustee; if the trust instrument includes a mechanism, other than the appointment of an appointor, for appointing a trustee to replace the last continuing trustee—an appointment of a trustee under the mechanism has not taken effect within a reasonable period after the later of the following to happen to the last continuing trustee— becoming the last continuing trustee; becoming an insolvent under administration. (sec.23-ssec.2) For subsection (1) , it does not matter whether the last continuing trustee is an original trustee of the trust or was appointed by the court or otherwise. (sec.23-ssec.3) Subject to a contrary intention in the trust instrument, the last continuing trustee may, by instrument, appoint 1 or more persons as trustees to replace themself. See section 14 in relation to the limit applying to the number of trustees of particular trusts. See also section 166 in relation to the court’s power to appoint and remove trustees. (sec.23-ssec.4) The power conferred under subsection (3) is a personal right only of the last continuing trustee.
This section applies in relation to a trust if— the number of trustees of the trust is less than the number of trustees permitted for the trust under section 14 , including that section as applied by section 15 (4) ; or section 14 does not apply to the trust. The following persons may, by instrument, appoint 1 or more persons as additional trustees of the trust— if there is an appointor for the trust—the appointor; if there is no appointor for the trust, or no appointor who is able and willing to act as an appointor—the trustee of the trust or, if there is more than 1 trustee, the trustees. See section 14 in relation to the limit applying to the number of trustees of particular trusts. See also section 166 in relation to the court’s power to appoint additional trustees. However, the persons mentioned in subsection (2) are not required to exercise the power conferred under that subsection unless the appointment of 1 or more additional trustees is required under the trust instrument or an Act. Subject to a contrary intention in the trust instrument, an appointor for the trust may appoint themself as an additional trustee under subsection (2) (a) . (sec.24-ssec.1) This section applies in relation to a trust if— the number of trustees of the trust is less than the number of trustees permitted for the trust under section 14 , including that section as applied by section 15 (4) ; or section 14 does not apply to the trust. (sec.24-ssec.2) The following persons may, by instrument, appoint 1 or more persons as additional trustees of the trust— if there is an appointor for the trust—the appointor; if there is no appointor for the trust, or no appointor who is able and willing to act as an appointor—the trustee of the trust or, if there is more than 1 trustee, the trustees. See section 14 in relation to the limit applying to the number of trustees of particular trusts. See also section 166 in relation to the court’s power to appoint additional trustees. (sec.24-ssec.3) However, the persons mentioned in subsection (2) are not required to exercise the power conferred under that subsection unless the appointment of 1 or more additional trustees is required under the trust instrument or an Act. (sec.24-ssec.4) Subject to a contrary intention in the trust instrument, an appointor for the trust may appoint themself as an additional trustee under subsection (2) (a) .
This section applies if, under a trust, a part of the trust property (the separate trust property ) is held on a trust distinct from the trust relating to any other part of the trust property. If a new trustee may be appointed under this division— 1 or more separate trustees may be appointed of the separate trust property, whether or not a new trustee is, or is to be, appointed of any other part of the trust property; and a continuing trustee may be appointed or continue as a trustee of the separate trust property; and if only 1 trustee of the trust property was originally appointed—1 trustee may be appointed of the separate trust property. (sec.25-ssec.1) This section applies if, under a trust, a part of the trust property (the separate trust property ) is held on a trust distinct from the trust relating to any other part of the trust property. (sec.25-ssec.2) If a new trustee may be appointed under this division— 1 or more separate trustees may be appointed of the separate trust property, whether or not a new trustee is, or is to be, appointed of any other part of the trust property; and a continuing trustee may be appointed or continue as a trustee of the separate trust property; and if only 1 trustee of the trust property was originally appointed—1 trustee may be appointed of the separate trust property.
A person appointed under this division as a trustee of trust property has all the powers, authorities and discretions of, and may in all matters act as, a person who had originally been appointed as a trustee of the trust property under the trust instrument. Subsection (1) applies in relation to the trustee both before and after the trust property is vested in the trustee. (sec.26-ssec.1) A person appointed under this division as a trustee of trust property has all the powers, authorities and discretions of, and may in all matters act as, a person who had originally been appointed as a trustee of the trust property under the trust instrument. (sec.26-ssec.2) Subsection (1) applies in relation to the trustee both before and after the trust property is vested in the trustee.
For this division, the minimum trustee requirements for a trust are satisfied if the trust has— at least 1 trustee that is a corporation; or the public trustee a licensed trustee company a company registered under the Corporations Act a local government See section 16 in relation to the power of a local government to act in the administration of a trust. at least 2 trustees who are individuals; or if only 1 trustee was originally appointed or the trust instrument allows the trust to have only 1 trustee who is an individual—1 trustee who is an individual.
This section applies if— a new trustee is appointed under division 2 to replace a trustee (the replaced trustee ); and on the appointment of the new trustee, the minimum trustee requirements for the trust are satisfied. On the appointment of the new trustee, the replaced trustee is discharged from the trust. However, if the replaced trustee has declared, as mentioned in section 20 (1) (b) , that the trustee wishes to be discharged from only part of the trusts reposed in the trustee and is replaced under section 20 in relation to that part only, the trustee is discharged from that part only. (sec.28-ssec.1) This section applies if— a new trustee is appointed under division 2 to replace a trustee (the replaced trustee ); and on the appointment of the new trustee, the minimum trustee requirements for the trust are satisfied. (sec.28-ssec.2) On the appointment of the new trustee, the replaced trustee is discharged from the trust. (sec.28-ssec.3) However, if the replaced trustee has declared, as mentioned in section 20 (1) (b) , that the trustee wishes to be discharged from only part of the trusts reposed in the trustee and is replaced under section 20 in relation to that part only, the trustee is discharged from that part only.
This section applies in relation to a relevant trustee mentioned in section 20 (1) (c) , (d) , (e) , (f) , (g) or (h) . For subsection (1) , it does not matter whether the relevant trustee is an original trustee of the trust or was appointed by the court or otherwise. The following persons may, by instrument, remove the relevant trustee without appointing a new trustee to replace the relevant trustee— if there is an appointor for the trust—the appointor; if there is no appointor for the trust, or no appointor who is able and willing to act as an appointor—the continuing trustee of the trust or, if there is more than 1 continuing trustee, the continuing trustees. However, subsection (3) applies only if, on the removal of the relevant trustee, the minimum trustee requirements for the trust will be satisfied. On the removal of the relevant trustee under this section, the relevant trustee is discharged from the trust. (sec.29-ssec.1) This section applies in relation to a relevant trustee mentioned in section 20 (1) (c) , (d) , (e) , (f) , (g) or (h) . (sec.29-ssec.2) For subsection (1) , it does not matter whether the relevant trustee is an original trustee of the trust or was appointed by the court or otherwise. (sec.29-ssec.3) The following persons may, by instrument, remove the relevant trustee without appointing a new trustee to replace the relevant trustee— if there is an appointor for the trust—the appointor; if there is no appointor for the trust, or no appointor who is able and willing to act as an appointor—the continuing trustee of the trust or, if there is more than 1 continuing trustee, the continuing trustees. (sec.29-ssec.4) However, subsection (3) applies only if, on the removal of the relevant trustee, the minimum trustee requirements for the trust will be satisfied. (sec.29-ssec.5) On the removal of the relevant trustee under this section, the relevant trustee is discharged from the trust.
This section applies if— a trustee declares, by instrument, that the trustee wishes to be discharged from all, or part (the relevant part ), of the trusts reposed in the trustee; and on the discharge, the minimum trustee requirements will be satisfied for the trust or relevant part; and the trustee’s co-trustees and, if there is an appointor for the trust, the appointor, by instrument, agree to— discharge the trustee from the trusts or relevant part; and vest the trust property in the co-trustees alone. Subject to subsection (3) , the trustee is discharged from the trusts or relevant part. The discharge of the trustee takes effect— to the extent it is necessary, in order to vest the trust property in the co-trustees alone, for a transfer of the trust property to be notified, registered or recorded under the requirements of another Act or of a law of another State or the Commonwealth—on the notification, registration or recording of the transfer; or if, or to the extent, paragraph (a) does not apply—according to the terms of the instrument mentioned in subsection (1) (c) . If the trustee has declared, as mentioned in subsection (1) (a) , that the trustee wishes to be discharged from only the relevant part of the trusts, this section applies as if a reference in subsections (1) (c) (ii) and (3) (a) to the trust property were a reference to the trust property held on trust under the relevant part. To remove any doubt, it is declared that it is not necessary for a new trustee to be appointed to replace the trustee who is discharged. (sec.30-ssec.1) This section applies if— a trustee declares, by instrument, that the trustee wishes to be discharged from all, or part (the relevant part ), of the trusts reposed in the trustee; and on the discharge, the minimum trustee requirements will be satisfied for the trust or relevant part; and the trustee’s co-trustees and, if there is an appointor for the trust, the appointor, by instrument, agree to— discharge the trustee from the trusts or relevant part; and vest the trust property in the co-trustees alone. (sec.30-ssec.2) Subject to subsection (3) , the trustee is discharged from the trusts or relevant part. (sec.30-ssec.3) The discharge of the trustee takes effect— to the extent it is necessary, in order to vest the trust property in the co-trustees alone, for a transfer of the trust property to be notified, registered or recorded under the requirements of another Act or of a law of another State or the Commonwealth—on the notification, registration or recording of the transfer; or if, or to the extent, paragraph (a) does not apply—according to the terms of the instrument mentioned in subsection (1) (c) . (sec.30-ssec.4) If the trustee has declared, as mentioned in subsection (1) (a) , that the trustee wishes to be discharged from only the relevant part of the trusts, this section applies as if a reference in subsections (1) (c) (ii) and (3) (a) to the trust property were a reference to the trust property held on trust under the relevant part. (sec.30-ssec.5) To remove any doubt, it is declared that it is not necessary for a new trustee to be appointed to replace the trustee who is discharged.
This section applies if— a trustee is— replaced under division 2 ; or removed under section 29 or under the trust instrument, without being replaced; or discharged under section 30 ; and when the trustee is replaced, removed or discharged, the relevant person has notice that the trustee had, under section 95 , delegated a matter in relation to the trust. For subsection (1) (b) , it does not matter whether the relevant person has notice of the delegation of the matter because the trustee gave notice to the relevant person under section 99 , or otherwise. The relevant person must give the person to whom the delegation was made written notice that the trustee has been replaced, removed or discharged, as the case may be. In this section— relevant person means— in relation to a trustee who is replaced or removed as mentioned in subsection (1) (a) (i) or (ii) —the person replacing or removing the trustee; or in relation to a trustee who is discharged as mentioned in subsection (1) (a) (iii) —any person whose agreement to the discharge is required under section 30 . (sec.31-ssec.1) This section applies if— a trustee is— replaced under division 2 ; or removed under section 29 or under the trust instrument, without being replaced; or discharged under section 30 ; and when the trustee is replaced, removed or discharged, the relevant person has notice that the trustee had, under section 95 , delegated a matter in relation to the trust. (sec.31-ssec.2) For subsection (1) (b) , it does not matter whether the relevant person has notice of the delegation of the matter because the trustee gave notice to the relevant person under section 99 , or otherwise. (sec.31-ssec.3) The relevant person must give the person to whom the delegation was made written notice that the trustee has been replaced, removed or discharged, as the case may be. (sec.31-ssec.4) In this section— relevant person means— in relation to a trustee who is replaced or removed as mentioned in subsection (1) (a) (i) or (ii) —the person replacing or removing the trustee; or in relation to a trustee who is discharged as mentioned in subsection (1) (a) (iii) —any person whose agreement to the discharge is required under section 30 .
This division applies if, by instrument (an instrument of change )— a new trustee is appointed, whether under division 2 or under the trust instrument and whether to replace a trustee or to be an additional trustee; or a trustee is— removed under section 29 ; or discharged under section 30 . However, this division does not apply in relation to a new trustee if the new trustee is appointed to replace the last continuing trustee of a trust who is dead. See division 7 in relation to the vesting of trust property on the death of the last continuing trustee of a trust. (sec.32-ssec.1) This division applies if, by instrument (an instrument of change )— a new trustee is appointed, whether under division 2 or under the trust instrument and whether to replace a trustee or to be an additional trustee; or a trustee is— removed under section 29 ; or discharged under section 30 . (sec.32-ssec.2) However, this division does not apply in relation to a new trustee if the new trustee is appointed to replace the last continuing trustee of a trust who is dead. See division 7 in relation to the vesting of trust property on the death of the last continuing trustee of a trust.
In this division— instrument of change see section 32 (1) . post-change trustee , in relation to an instrument of change, means a person who, on the appointment of a new trustee, or the removal or discharge of a trustee, under the instrument, becomes or continues as a trustee of the trust to which the instrument relates. pre-change trustee , in relation to an instrument of change, means a person who, immediately before the appointment of a new trustee, or the removal or discharge of a trustee, takes effect under the instrument, is a trustee of the trust to which the instrument relates.
On the appointment of the new trustee, or the removal or discharge of the trustee, under the instrument of change, the instrument of change— divests the trust property from the pre-change trustees; and without any conveyance, transfer or assignment, vests the trust property in— the post-change trustee; or if there is more than 1 post-change trustee—the post-change trustees, as joint tenants. However, to the extent the divesting and vesting of the trust property have effect only if notified, registered or recorded under the requirements of another Act or of a law of another State or the Commonwealth— the divesting and vesting of the trust property are subject to the requirements of the other Act or law; and the instrument of change— vests in the post-change trustee a right to call for a transfer of the trust property; or if there is more than 1 post-change trustee—vests in the post-change trustees jointly a right to call for a transfer of the trust property. (sec.34-ssec.1) On the appointment of the new trustee, or the removal or discharge of the trustee, under the instrument of change, the instrument of change— divests the trust property from the pre-change trustees; and without any conveyance, transfer or assignment, vests the trust property in— the post-change trustee; or if there is more than 1 post-change trustee—the post-change trustees, as joint tenants. (sec.34-ssec.2) However, to the extent the divesting and vesting of the trust property have effect only if notified, registered or recorded under the requirements of another Act or of a law of another State or the Commonwealth— the divesting and vesting of the trust property are subject to the requirements of the other Act or law; and the instrument of change— vests in the post-change trustee a right to call for a transfer of the trust property; or if there is more than 1 post-change trustee—vests in the post-change trustees jointly a right to call for a transfer of the trust property.
Each pre-change trustee and post-change trustee must do all things necessary to assist in the notification, registration or recording of the divesting and vesting of the trust property under a requirement mentioned in section 34 (2) . The instrument of change is taken to be a conveyance of the trust property from the pre-change trustees to— the post-change trustee; or if there is more than 1 post-change trustee—the post-change trustees, as joint tenants. However, the instrument of change does not have effect as a breach of covenant or condition, or give rise to the forfeiture, of any lease or agreement for lease or other property. If the consent of a person is needed to the conveyance, transfer or assignment of the trust property— the vesting of the property under this division is subject to the consent; but the consent may be obtained after the execution of the instrument of change by the post-change trustee or, if there is more than 1 post-change trustee, the post-change trustees. (sec.35-ssec.1) Each pre-change trustee and post-change trustee must do all things necessary to assist in the notification, registration or recording of the divesting and vesting of the trust property under a requirement mentioned in section 34 (2) . (sec.35-ssec.2) The instrument of change is taken to be a conveyance of the trust property from the pre-change trustees to— the post-change trustee; or if there is more than 1 post-change trustee—the post-change trustees, as joint tenants. (sec.35-ssec.3) However, the instrument of change does not have effect as a breach of covenant or condition, or give rise to the forfeiture, of any lease or agreement for lease or other property. (sec.35-ssec.4) If the consent of a person is needed to the conveyance, transfer or assignment of the trust property— the vesting of the property under this division is subject to the consent; but the consent may be obtained after the execution of the instrument of change by the post-change trustee or, if there is more than 1 post-change trustee, the post-change trustees.
This section applies if— a power is given to, or a trust is imposed on, 2 or more trustees jointly; and 1 or more of the trustees dies. The surviving trustee or, if there is more than 1 surviving trustee, the surviving trustees may exercise the power or perform the trust, as the case may be. (sec.36-ssec.1) This section applies if— a power is given to, or a trust is imposed on, 2 or more trustees jointly; and 1 or more of the trustees dies. (sec.36-ssec.2) The surviving trustee or, if there is more than 1 surviving trustee, the surviving trustees may exercise the power or perform the trust, as the case may be.
This division applies if the last continuing trustee of a trust dies.
On the death of the last continuing trustee, the trust property devolves to and vests in the public trustee in the same way, and subject to the same provisions, as trust property vests in a post-change trustee under division 5 . However, it is not necessary for the public trustee to notify, register or record the vesting of the trust property under section 35 , as applied by subsection (1) , if— the public trustee does not act in relation to the trust; or the only action taken by the public trustee is the appointment of a new trustee. The trust property remains vested in the public trustee until it is divested from the public trustee under section 40 or 41 . (sec.38-ssec.1) On the death of the last continuing trustee, the trust property devolves to and vests in the public trustee in the same way, and subject to the same provisions, as trust property vests in a post-change trustee under division 5 . (sec.38-ssec.2) However, it is not necessary for the public trustee to notify, register or record the vesting of the trust property under section 35 , as applied by subsection (1) , if— the public trustee does not act in relation to the trust; or the only action taken by the public trustee is the appointment of a new trustee. (sec.38-ssec.3) The trust property remains vested in the public trustee until it is divested from the public trustee under section 40 or 41 .
While the trust property is vested in the public trustee under section 38 , the public trustee has all the powers, authorities and discretions of, and may in all matters act as, a person who had originally been appointed as a trustee of the trust property under the trust instrument. However, unless the court, in special circumstances, otherwise directs, the public trustee is not required to exercise any of the powers, authorities or discretions or act in the administration of the trust. This section does not limit any power of the public trustee under the Public Trustee Act 1978 , section 61 or 62 . (sec.39-ssec.1) While the trust property is vested in the public trustee under section 38 , the public trustee has all the powers, authorities and discretions of, and may in all matters act as, a person who had originally been appointed as a trustee of the trust property under the trust instrument. (sec.39-ssec.2) However, unless the court, in special circumstances, otherwise directs, the public trustee is not required to exercise any of the powers, authorities or discretions or act in the administration of the trust. (sec.39-ssec.3) This section does not limit any power of the public trustee under the Public Trustee Act 1978 , section 61 or 62 .
This section applies if— a new trustee is appointed to replace the last continuing trustee; and for an appointment made other than by the public trustee—the new trustee gives the public trustee written notice of the appointment. The trust property— is divested from the public trustee; and devolves to and vests in the new trustee in the same way, and subject to the same provisions, as trust property vests in a post-change trustee under division 5 . (sec.40-ssec.1) This section applies if— a new trustee is appointed to replace the last continuing trustee; and for an appointment made other than by the public trustee—the new trustee gives the public trustee written notice of the appointment. (sec.40-ssec.2) The trust property— is divested from the public trustee; and devolves to and vests in the new trustee in the same way, and subject to the same provisions, as trust property vests in a post-change trustee under division 5 .
This section applies if— a new trustee has not been appointed to replace the last continuing trustee; and a grant of probate of the will, or letters of administration of the estate, of the last continuing trustee is made to a person, other than the public trustee; and the holder of the grant gives the public trustee written notice of— the making of the grant; and the holder’s intention to assume the trust of the trust property. The trust property— is divested from the public trustee; and devolves to and vests in the holder of the grant in the same way, and subject to the same provisions, as trust property vests in a post-change trustee under division 5 . (sec.41-ssec.1) This section applies if— a new trustee has not been appointed to replace the last continuing trustee; and a grant of probate of the will, or letters of administration of the estate, of the last continuing trustee is made to a person, other than the public trustee; and the holder of the grant gives the public trustee written notice of— the making of the grant; and the holder’s intention to assume the trust of the trust property. (sec.41-ssec.2) The trust property— is divested from the public trustee; and devolves to and vests in the holder of the grant in the same way, and subject to the same provisions, as trust property vests in a post-change trustee under division 5 .
If the trust property vests in the holder of a grant under section 41 , the holder— is taken to be a person appointed as a new trustee by an appointor for the trust; and has all the powers, authorities and discretions of, and may in all matters act as, a person who had originally been appointed as a trustee of the trust property under the trust instrument.
This section applies if, before the trust property is divested from the public trustee under section 40 or 41 , the public trustee— is liable for any action taken by the public trustee in relation to the trust; and is entitled to be indemnified out of the trust property for the liability. On the divesting of the trust property from the public trustee under section 40 or 41 — the public trustee’s liability ends; and a person who would, apart from paragraph (a) , have had a remedy against the public trustee is taken to have the same remedy against the person in whom the trust property vests under section 40 or 41 . (sec.43-ssec.1) This section applies if, before the trust property is divested from the public trustee under section 40 or 41 , the public trustee— is liable for any action taken by the public trustee in relation to the trust; and is entitled to be indemnified out of the trust property for the liability. (sec.43-ssec.2) On the divesting of the trust property from the public trustee under section 40 or 41 — the public trustee’s liability ends; and a person who would, apart from paragraph (a) , have had a remedy against the public trustee is taken to have the same remedy against the person in whom the trust property vests under section 40 or 41 .
This section applies if— a person is appointed as both executor and trustee of a will; and the person— renounces probate of the will; or fails to apply for probate of the will after being properly cited or summoned to apply. The person’s renunciation or failure is taken to be a disclaimer by the person of the trust of the will. To remove any doubt, it is declared that subsection (2) does not affect any express trust established under the will. (sec.44-ssec.1) This section applies if— a person is appointed as both executor and trustee of a will; and the person— renounces probate of the will; or fails to apply for probate of the will after being properly cited or summoned to apply. (sec.44-ssec.2) The person’s renunciation or failure is taken to be a disclaimer by the person of the trust of the will. (sec.44-ssec.3) To remove any doubt, it is declared that subsection (2) does not affect any express trust established under the will.
This section applies if— a person is appointed as both executor and trustee of a will; and the person— renounces probate of the will; or fails to apply for probate of the will after being properly cited or summoned to apply; or dies before probate of the will is granted to the person; and letters of administration with the will are granted to another person (the grantee ). The grantee is taken to have been appointed trustee of the will instead of the person. (sec.45-ssec.1) This section applies if— a person is appointed as both executor and trustee of a will; and the person— renounces probate of the will; or fails to apply for probate of the will after being properly cited or summoned to apply; or dies before probate of the will is granted to the person; and letters of administration with the will are granted to another person (the grantee ). (sec.45-ssec.2) The grantee is taken to have been appointed trustee of the will instead of the person.
If a custodian trustee of trust property is appointed, each trustee of the trust, other than the custodian trustee, is a managing trustee of the trust.
A corporation may be appointed, in a way provided under subsection (2) , as the custodian trustee of trust property. The appointment may be made by— the trust instrument; or if there is an appointor for the trust—the appointor, by instrument; or the trustees of the trust, by instrument; or the court, by order. Subsection (2) (b) and (c) applies subject to a contrary intention in the trust instrument. (sec.47-ssec.1) A corporation may be appointed, in a way provided under subsection (2) , as the custodian trustee of trust property. (sec.47-ssec.2) The appointment may be made by— the trust instrument; or if there is an appointor for the trust—the appointor, by instrument; or the trustees of the trust, by instrument; or the court, by order. (sec.47-ssec.3) Subsection (2) (b) and (c) applies subject to a contrary intention in the trust instrument.
On the appointment of a custodian trustee of trust property, the trust property vests in the custodian trustee as if the custodian trustee were the sole trustee. The instrument of appointment of a custodian trustee— is taken to be a conveyance of the trust property from the managing trustees to the custodian trustee; but does not have effect as a breach of covenant or condition, or give rise to the forfeiture, of any lease or agreement for lease or other property. Section 34 (2) applies to the divesting and vesting of the trust property under this section as if— the reference in section 34 (2) (b) to the instrument of change were a reference to the instrument of appointment of the custodian trustee; and the reference in section 34 (2) (b) (i) to the post-change trustee were a reference to the custodian trustee. The court may, on application, make vesting orders to give effect to subsection (1) . See section 163 in relation to the persons who may apply to the court for particular orders. Subsection (1) applies subject to an express contrary intention in the trust instrument. In this section— instrument of appointment , of a custodian trustee, means the trust instrument, other instrument or court order by which the custodian trustee is appointed. (sec.48-ssec.1) On the appointment of a custodian trustee of trust property, the trust property vests in the custodian trustee as if the custodian trustee were the sole trustee. (sec.48-ssec.2) The instrument of appointment of a custodian trustee— is taken to be a conveyance of the trust property from the managing trustees to the custodian trustee; but does not have effect as a breach of covenant or condition, or give rise to the forfeiture, of any lease or agreement for lease or other property. (sec.48-ssec.3) Section 34 (2) applies to the divesting and vesting of the trust property under this section as if— the reference in section 34 (2) (b) to the instrument of change were a reference to the instrument of appointment of the custodian trustee; and the reference in section 34 (2) (b) (i) to the post-change trustee were a reference to the custodian trustee. (sec.48-ssec.4) The court may, on application, make vesting orders to give effect to subsection (1) . See section 163 in relation to the persons who may apply to the court for particular orders. (sec.48-ssec.5) Subsection (1) applies subject to an express contrary intention in the trust instrument. (sec.48-ssec.6) In this section— instrument of appointment , of a custodian trustee, means the trust instrument, other instrument or court order by which the custodian trustee is appointed.
This section applies if trust property vests in a custodian trustee under section 48 . The exercise of all powers, authorities and discretions exercisable by trustees under the trust, including the management of the trust property, remains vested in the managing trustees of the trust as fully and effectively as if there were no custodian trustee. Without limiting subsection (2) , the custodian trustee does not have the power to appoint a new trustee of the trust. See, however, section 163 (3) in relation to a custodian trustee’s power to apply to the court for an order appointing a new trustee of the trust. This section applies subject to an express contrary intention in the trust instrument. (sec.49-ssec.1) This section applies if trust property vests in a custodian trustee under section 48 . (sec.49-ssec.2) The exercise of all powers, authorities and discretions exercisable by trustees under the trust, including the management of the trust property, remains vested in the managing trustees of the trust as fully and effectively as if there were no custodian trustee. (sec.49-ssec.3) Without limiting subsection (2) , the custodian trustee does not have the power to appoint a new trustee of the trust. See, however, section 163 (3) in relation to a custodian trustee’s power to apply to the court for an order appointing a new trustee of the trust. (sec.49-ssec.4) This section applies subject to an express contrary intention in the trust instrument.
A custodian trustee’s function is to do the following, as the managing trustees, by instrument, direct— get in and hold the trust property; invest the trust property; dispose of the trust property. For performing the custodian trustee’s function under subsection (1) , the custodian trustee must perform all acts and execute all documents as the managing trustees, by instrument, direct. This section applies subject to an express contrary intention in the trust instrument. (sec.50-ssec.1) A custodian trustee’s function is to do the following, as the managing trustees, by instrument, direct— get in and hold the trust property; invest the trust property; dispose of the trust property. (sec.50-ssec.2) For performing the custodian trustee’s function under subsection (1) , the custodian trustee must perform all acts and execute all documents as the managing trustees, by instrument, direct. (sec.50-ssec.3) This section applies subject to an express contrary intention in the trust instrument.
A custodian trustee is not personally liable for an act done, or an omission made, under a direction of the managing trustees mentioned in section 50 (1) or (2) . Also, a custodian trustee is not personally liable for an act done, or an omission made, by any of the managing trustees. This section applies subject to an express contrary intention in the trust instrument. (sec.51-ssec.1) A custodian trustee is not personally liable for an act done, or an omission made, under a direction of the managing trustees mentioned in section 50 (1) or (2) . (sec.51-ssec.2) Also, a custodian trustee is not personally liable for an act done, or an omission made, by any of the managing trustees. (sec.51-ssec.3) This section applies subject to an express contrary intention in the trust instrument.
This section applies if a custodian trustee does an act, or makes an omission, under a direction of the managing trustees mentioned in section 50 (1) or (2) . The managing trustees are liable for the act done, or the omission made, as if it were the managing trustees’ own act or omission. This section applies subject to an express contrary intention in the trust instrument. (sec.52-ssec.1) This section applies if a custodian trustee does an act, or makes an omission, under a direction of the managing trustees mentioned in section 50 (1) or (2) . (sec.52-ssec.2) The managing trustees are liable for the act done, or the omission made, as if it were the managing trustees’ own act or omission. (sec.52-ssec.3) This section applies subject to an express contrary intention in the trust instrument.
A custodian trustee may apply to the court for directions if the custodian trustee believes a direction of the managing trustees mentioned in section 50 (1) or (2) — conflicts with the trust instrument or the law; or exposes, or would expose, the custodian trustee to a personal liability; or is otherwise objectionable. The court may, on an application under subsection (1) , make the orders and give the directions the court considers appropriate, including an order about the costs of the application. An order made under subsection (2) giving directions binds the custodian trustee and the managing trustees. (sec.53-ssec.1) A custodian trustee may apply to the court for directions if the custodian trustee believes a direction of the managing trustees mentioned in section 50 (1) or (2) — conflicts with the trust instrument or the law; or exposes, or would expose, the custodian trustee to a personal liability; or is otherwise objectionable. (sec.53-ssec.2) The court may, on an application under subsection (1) , make the orders and give the directions the court considers appropriate, including an order about the costs of the application. (sec.53-ssec.3) An order made under subsection (2) giving directions binds the custodian trustee and the managing trustees.
A proceeding in relation to trust property that is vested in a custodian trustee must be brought or defended, in the name of the custodian trustee, as the managing trustees, by instrument, direct. If a custodian trustee brings or defends a proceeding under a direction of the managing trustees mentioned in subsection (1) — the custodian trustee is not personally liable for the costs of bringing or defending the proceeding; but the managing trustees are personally liable for the costs of bringing or defending the proceeding, as if it had been brought or defended by the managing trustees. This section applies subject to an express contrary intention in the trust instrument. (sec.54-ssec.1) A proceeding in relation to trust property that is vested in a custodian trustee must be brought or defended, in the name of the custodian trustee, as the managing trustees, by instrument, direct. (sec.54-ssec.2) If a custodian trustee brings or defends a proceeding under a direction of the managing trustees mentioned in subsection (1) — the custodian trustee is not personally liable for the costs of bringing or defending the proceeding; but the managing trustees are personally liable for the costs of bringing or defending the proceeding, as if it had been brought or defended by the managing trustees. (sec.54-ssec.3) This section applies subject to an express contrary intention in the trust instrument.
A person dealing with a custodian trustee— is not required to inquire about— any direction of the managing trustees about the dealing; or whether the managing trustees have agreed to the dealing; and is not affected by notice of the fact the managing trustees have not agreed to the dealing.
The following persons may apply to the court to end a custodian trusteeship— the custodian trustee; a managing trustee of the trust; a beneficiary of the trust. The court may order the ending of the custodian trusteeship if satisfied that— it is the general wish of the beneficiaries of the trust; or it is expedient to end the custodian trusteeship on other grounds. The court may, to give effect to the ending of the custodian trusteeship— give the directions it considers appropriate; and make the vesting orders it considers necessary. (sec.56-ssec.1) The following persons may apply to the court to end a custodian trusteeship— the custodian trustee; a managing trustee of the trust; a beneficiary of the trust. (sec.56-ssec.2) The court may order the ending of the custodian trusteeship if satisfied that— it is the general wish of the beneficiaries of the trust; or it is expedient to end the custodian trusteeship on other grounds. (sec.56-ssec.3) The court may, to give effect to the ending of the custodian trusteeship— give the directions it considers appropriate; and make the vesting orders it considers necessary.
Nothing in this part limits the right of the managing trustees of a trust, or of a custodian trustee of trust property, to be indemnified out of the trust property in relation to liabilities incurred in the proper administration of the trust.
This part does not limit any other duty to which a trustee is subject, whether under this Act or otherwise.
In this part— professional trustee means— a trustee whose profession, business or employment is, or includes, acting as a trustee; or a custodian trustee whose profession, business or employment is, or includes, acting as a custodian trustee. trustee includes a custodian trustee.
This section applies to a trustee if the trustee is a professional trustee. The trustee has a duty, in administering a trust, to exercise the care, diligence and skill that a prudent person engaged in the trustee’s profession, business or employment would exercise in managing the affairs of other persons. (sec.60-ssec.1) This section applies to a trustee if the trustee is a professional trustee. (sec.60-ssec.2) The trustee has a duty, in administering a trust, to exercise the care, diligence and skill that a prudent person engaged in the trustee’s profession, business or employment would exercise in managing the affairs of other persons.
This section applies to a trustee if— the trustee is not a professional trustee; but the trustee has, or holds themself out as having, special knowledge or experience relevant to administering trusts or trusts of a particular type. The trustee has a duty, in administering a trust or a trust of the particular type, to exercise the care, diligence and skill that a prudent person having that special knowledge or experience would exercise in managing the affairs of other persons. (sec.61-ssec.1) This section applies to a trustee if— the trustee is not a professional trustee; but the trustee has, or holds themself out as having, special knowledge or experience relevant to administering trusts or trusts of a particular type. (sec.61-ssec.2) The trustee has a duty, in administering a trust or a trust of the particular type, to exercise the care, diligence and skill that a prudent person having that special knowledge or experience would exercise in managing the affairs of other persons.
This section applies to a trustee if— the trustee is not a professional trustee; and section 61 does not apply to the trustee. The trustee has a duty, in administering a trust, to exercise the care, diligence and skill that a prudent person of business would exercise in managing the affairs of other persons. (sec.62-ssec.1) This section applies to a trustee if— the trustee is not a professional trustee; and section 61 does not apply to the trustee. (sec.62-ssec.2) The trustee has a duty, in administering a trust, to exercise the care, diligence and skill that a prudent person of business would exercise in managing the affairs of other persons.
A trustee has a duty, in administering a trust, to act honestly and in good faith— if the trust is a charitable trust—to further the purposes of the trust; or otherwise—for the benefit of the beneficiaries of the trust.
A trustee has a duty, in administering a trust, to— keep accurate accounts and records for the trust; and keep the accounts and records for at least 3 years after the termination of the trust. If a person is the trustee of more than 1 trust, the person must keep separate accounts and records for each trust. (sec.64-ssec.1) A trustee has a duty, in administering a trust, to— keep accurate accounts and records for the trust; and keep the accounts and records for at least 3 years after the termination of the trust. (sec.64-ssec.2) If a person is the trustee of more than 1 trust, the person must keep separate accounts and records for each trust.
A trustee has a duty, in administering a trust, to do the following on request by a beneficiary of the trust— to make the accounts for the trust available for inspection by the beneficiary within a reasonable period after the request is made; to provide copies of the accounts for the trust to the beneficiary, within a reasonable period after the request is made, on payment of the reasonable costs of providing the copies. However, subsection (1) does not apply if the request is unreasonable in the circumstances. a request by a beneficiary who has been provided with copies of the accounts to be provided with updated copies of the accounts at very short intervals Subsection (1) does not limit any right of a beneficiary— to obtain other information from the trustee; or to apply to the court for an order that the trustee provide other information. In this section— beneficiary , of a trust, includes a person in whose favour a power to distribute the trust property may be exercised. (sec.65-ssec.1) A trustee has a duty, in administering a trust, to do the following on request by a beneficiary of the trust— to make the accounts for the trust available for inspection by the beneficiary within a reasonable period after the request is made; to provide copies of the accounts for the trust to the beneficiary, within a reasonable period after the request is made, on payment of the reasonable costs of providing the copies. (sec.65-ssec.2) However, subsection (1) does not apply if the request is unreasonable in the circumstances. a request by a beneficiary who has been provided with copies of the accounts to be provided with updated copies of the accounts at very short intervals (sec.65-ssec.3) Subsection (1) does not limit any right of a beneficiary— to obtain other information from the trustee; or to apply to the court for an order that the trustee provide other information. (sec.65-ssec.4) In this section— beneficiary , of a trust, includes a person in whose favour a power to distribute the trust property may be exercised.
In this part— investment power means— a power of investment conferred on a trustee under the trust instrument; or a power conferred on a trustee under this part. professional investor means a person whose profession, business or employment is, or includes, investing money for other persons.
This section applies to a trustee if the trustee is a professional investor. The trustee has a duty, in exercising an investment power, to exercise the care, diligence and skill that a prudent person engaged in the trustee’s profession, business or employment would exercise in managing the affairs of other persons. This section applies subject to a contrary intention in the trust instrument. See also part 5 , division 2 in relation to a trustee’s general duty in administering a trust. (sec.67-ssec.1) This section applies to a trustee if the trustee is a professional investor. (sec.67-ssec.2) The trustee has a duty, in exercising an investment power, to exercise the care, diligence and skill that a prudent person engaged in the trustee’s profession, business or employment would exercise in managing the affairs of other persons. (sec.67-ssec.3) This section applies subject to a contrary intention in the trust instrument.
This section applies to a trustee if— the trustee is not a professional investor; but the trustee has, or holds themself out as having, special knowledge or experience in investing money for other persons. The trustee has a duty, in exercising an investment power, to exercise the care, diligence and skill that a prudent person having that special knowledge or experience would exercise in managing the affairs of other persons. This section applies subject to a contrary intention in the trust instrument. See also part 5 , division 2 in relation to a trustee’s general duty in administering a trust. (sec.68-ssec.1) This section applies to a trustee if— the trustee is not a professional investor; but the trustee has, or holds themself out as having, special knowledge or experience in investing money for other persons. (sec.68-ssec.2) The trustee has a duty, in exercising an investment power, to exercise the care, diligence and skill that a prudent person having that special knowledge or experience would exercise in managing the affairs of other persons. (sec.68-ssec.3) This section applies subject to a contrary intention in the trust instrument.
A trustee may invest trust funds in any form of investment, other than a forbidden form of investment. Also, a trustee may, at any time— vary an investment of trust funds; or realise an investment of trust funds and reinvest an amount resulting from the realisation in any form of investment, other than a forbidden form of investment. A trustee must, in exercising power under subsection (1) or (2) , comply with any provision of the trust instrument that is binding on the trustee and requires the trustee to— obtain a consent or approval in relation to trust investments; or comply with a direction in relation to trust investments. In this section— forbidden form of investment , in relation to trust funds, means a form of investment that is expressly forbidden by the trust instrument. See, however, section 75 for a power that can not be forbidden, or otherwise limited, by a trust instrument. (sec.69-ssec.1) A trustee may invest trust funds in any form of investment, other than a forbidden form of investment. (sec.69-ssec.2) Also, a trustee may, at any time— vary an investment of trust funds; or realise an investment of trust funds and reinvest an amount resulting from the realisation in any form of investment, other than a forbidden form of investment. (sec.69-ssec.3) A trustee must, in exercising power under subsection (1) or (2) , comply with any provision of the trust instrument that is binding on the trustee and requires the trustee to— obtain a consent or approval in relation to trust investments; or comply with a direction in relation to trust investments. (sec.69-ssec.4) In this section— forbidden form of investment , in relation to trust funds, means a form of investment that is expressly forbidden by the trust instrument. See, however, section 75 for a power that can not be forbidden, or otherwise limited, by a trust instrument.
A rule or principle of law or equity that imposes a duty on a trustee exercising an investment power continues to apply except to the extent it is inconsistent with this Act or another Act or with the trust instrument. Without limiting subsection (1) , the rules or principles mentioned in that subsection include a rule or principle imposing any of the following duties— a duty to exercise the powers of a trustee in the best interests of all present and future beneficiaries of the trust; a duty to invest trust funds in investments that are not speculative or hazardous; a duty to act impartially towards beneficiaries and between different classes of beneficiaries; a duty to obtain advice. A rule or principle of law or equity relating to a provision in a trust instrument that purports to exempt, limit the liability of, or indemnify a trustee in relation to a breach of trust continues to apply. If a trustee is under a duty to obtain advice, the reasonable costs of obtaining the advice are payable out of the trust funds. (sec.70-ssec.1) A rule or principle of law or equity that imposes a duty on a trustee exercising an investment power continues to apply except to the extent it is inconsistent with this Act or another Act or with the trust instrument. (sec.70-ssec.2) Without limiting subsection (1) , the rules or principles mentioned in that subsection include a rule or principle imposing any of the following duties— a duty to exercise the powers of a trustee in the best interests of all present and future beneficiaries of the trust; a duty to invest trust funds in investments that are not speculative or hazardous; a duty to act impartially towards beneficiaries and between different classes of beneficiaries; a duty to obtain advice. (sec.70-ssec.3) A rule or principle of law or equity relating to a provision in a trust instrument that purports to exempt, limit the liability of, or indemnify a trustee in relation to a breach of trust continues to apply. (sec.70-ssec.4) If a trustee is under a duty to obtain advice, the reasonable costs of obtaining the advice are payable out of the trust funds.
A trustee must, in exercising an investment power, have regard to the following matters, to the extent they are appropriate to the circumstances of the trust— the purposes of the trust and the needs and circumstances of the beneficiaries; the desirability of diversifying the trust investments; the nature of, and the risk associated with, the existing trust investments and other trust property; the need to maintain the real value of the capital or income of the trust; the risk of capital or income loss or depreciation; the potential for capital appreciation; the likely income return and the timing of income return; the length of the term of the proposed investment; the probable duration of the trust; the liquidity and marketability of the proposed investment during, and at the end of, the term of the proposed investment; the total value of the trust property; the effect of the proposed investment for the tax liability of the trust; the likelihood of inflation affecting the value of the proposed investment or other trust property; the cost (including commissions, fees, charges and duties payable) of making the proposed investment; the results of a review of the existing trust investments. Subsection (1) does not limit the matters to which a trustee may have regard in exercising an investment power. (sec.71-ssec.1) A trustee must, in exercising an investment power, have regard to the following matters, to the extent they are appropriate to the circumstances of the trust— the purposes of the trust and the needs and circumstances of the beneficiaries; the desirability of diversifying the trust investments; the nature of, and the risk associated with, the existing trust investments and other trust property; the need to maintain the real value of the capital or income of the trust; the risk of capital or income loss or depreciation; the potential for capital appreciation; the likely income return and the timing of income return; the length of the term of the proposed investment; the probable duration of the trust; the liquidity and marketability of the proposed investment during, and at the end of, the term of the proposed investment; the total value of the trust property; the effect of the proposed investment for the tax liability of the trust; the likelihood of inflation affecting the value of the proposed investment or other trust property; the cost (including commissions, fees, charges and duties payable) of making the proposed investment; the results of a review of the existing trust investments. (sec.71-ssec.2) Subsection (1) does not limit the matters to which a trustee may have regard in exercising an investment power.
A trustee may obtain independent and impartial advice, from a person the trustee reasonably believes is competent to give the advice, if the advice is reasonably required for— the investment of trust funds; or the management of the trust investments. If the trustee obtains advice under subsection (1) , the trustee— must consider the advice; and may pay, out of the trust funds, the reasonable costs of obtaining the advice. (sec.72-ssec.1) A trustee may obtain independent and impartial advice, from a person the trustee reasonably believes is competent to give the advice, if the advice is reasonably required for— the investment of trust funds; or the management of the trust investments. (sec.72-ssec.2) If the trustee obtains advice under subsection (1) , the trustee— must consider the advice; and may pay, out of the trust funds, the reasonable costs of obtaining the advice.
A trustee must, at least every 12 months, review the performance, individually and as a whole, of the trust investments.
A chose in action arising under the RITS system that entitles its holder to a security of a particular description (the underlying security ) is, for this Act and a trust instrument, taken to be the same in all respects as the underlying security. The holding or acquisition by a trustee of a chose in action mentioned in subsection (1) is taken to be an investment by the trustee in the underlying security. It does not matter that the right conferred by the chose in action is a right in relation to securities of a particular description and not in relation to particular securities. In this section— RITS system means the Reserve Bank Information and Transfer System operated by the Reserve Bank of Australia, as operating from time to time. (sec.74-ssec.1) A chose in action arising under the RITS system that entitles its holder to a security of a particular description (the underlying security ) is, for this Act and a trust instrument, taken to be the same in all respects as the underlying security. (sec.74-ssec.2) The holding or acquisition by a trustee of a chose in action mentioned in subsection (1) is taken to be an investment by the trustee in the underlying security. (sec.74-ssec.3) It does not matter that the right conferred by the chose in action is a right in relation to securities of a particular description and not in relation to particular securities. (sec.74-ssec.4) In this section— RITS system means the Reserve Bank Information and Transfer System operated by the Reserve Bank of Australia, as operating from time to time.
A trustee may do any of the following for a beneficiary of the trust— buy or construct a residence for the beneficiary to live in; retain a residence that is part of the trust property for the beneficiary to live in; enter into an agreement or arrangement to secure a right to use a residence for the beneficiary to live in. entering into a residence contract under the Retirement Villages Act 1999 Also, a trustee who exercises power under subsection (1) may make the residence available to the beneficiary to live in on the conditions the trustee considers appropriate. However, a trustee may exercise power under subsection (1) , or impose conditions under subsection (2) , only if the exercise of the power, or the imposition of the conditions, is consistent with the extent of the beneficiary’s interest under the trust. A trustee may retain a residence bought, constructed, retained or otherwise secured for use by a beneficiary under this section after the beneficiary has stopped living in the residence. To remove any doubt, it is declared that subsection (4) does not limit the operation of the Retirement Villages Act 1999 or any other Act. Despite section 69 , a trust instrument can not forbid the exercise of, or otherwise limit, a trustee’s power under this section. In this section— residence includes— a building or part of a building designed, or converted or capable of being converted, for use as a residence; and amenities or facilities for use in association with the use of a residence; and an interest in a residence. (sec.75-ssec.1) A trustee may do any of the following for a beneficiary of the trust— buy or construct a residence for the beneficiary to live in; retain a residence that is part of the trust property for the beneficiary to live in; enter into an agreement or arrangement to secure a right to use a residence for the beneficiary to live in. entering into a residence contract under the Retirement Villages Act 1999 (sec.75-ssec.2) Also, a trustee who exercises power under subsection (1) may make the residence available to the beneficiary to live in on the conditions the trustee considers appropriate. (sec.75-ssec.3) However, a trustee may exercise power under subsection (1) , or impose conditions under subsection (2) , only if the exercise of the power, or the imposition of the conditions, is consistent with the extent of the beneficiary’s interest under the trust. (sec.75-ssec.4) A trustee may retain a residence bought, constructed, retained or otherwise secured for use by a beneficiary under this section after the beneficiary has stopped living in the residence. (sec.75-ssec.5) To remove any doubt, it is declared that subsection (4) does not limit the operation of the Retirement Villages Act 1999 or any other Act. (sec.75-ssec.6) Despite section 69 , a trust instrument can not forbid the exercise of, or otherwise limit, a trustee’s power under this section. (sec.75-ssec.7) In this section— residence includes— a building or part of a building designed, or converted or capable of being converted, for use as a residence; and amenities or facilities for use in association with the use of a residence; and an interest in a residence.
A trustee may, by instrument, authorise another person to exercise any of the trustee’s investment powers. The authorisation may be made on the terms the trustee considers appropriate, including terms relating to remuneration. However, the authorisation of the other person does not limit any duty or other requirement applying to the trustee under this part or part 5 in relation to the exercise of the trustee’s investment powers. See also section 77 in relation to the liability of the trustee for the acts done, and the omissions made, by the person in exercising the trustee’s investment powers. This section applies subject to an express contrary intention in the trust instrument. (sec.76-ssec.1) A trustee may, by instrument, authorise another person to exercise any of the trustee’s investment powers. (sec.76-ssec.2) The authorisation may be made on the terms the trustee considers appropriate, including terms relating to remuneration. (sec.76-ssec.3) However, the authorisation of the other person does not limit any duty or other requirement applying to the trustee under this part or part 5 in relation to the exercise of the trustee’s investment powers. See also section 77 in relation to the liability of the trustee for the acts done, and the omissions made, by the person in exercising the trustee’s investment powers. (sec.76-ssec.4) This section applies subject to an express contrary intention in the trust instrument.
This section applies if a trustee authorises another person under section 76 to exercise any of the trustee’s investment powers. The trustee is liable for the acts done, and the omissions made, by the other person in exercising the trustee’s investment powers as if the acts and omissions were the trustee’s own acts and omissions. This section applies subject to an express contrary intention in the trust instrument. (sec.77-ssec.1) This section applies if a trustee authorises another person under section 76 to exercise any of the trustee’s investment powers. (sec.77-ssec.2) The trustee is liable for the acts done, and the omissions made, by the other person in exercising the trustee’s investment powers as if the acts and omissions were the trustee’s own acts and omissions. (sec.77-ssec.3) This section applies subject to an express contrary intention in the trust instrument.
This section applies if a trustee lends trust funds on the security of property. The trustee is not in breach of trust only because of the comparison of the amount of the loan with the value of the property when the loan was made if— it appears to the court that— in making the loan, the trustee was acting on an independent valuation of the property; and the amount of the loan was not more than two-thirds of the value of the property stated in the independent valuation; and the loan was made in reliance on the independent valuation; or the trustee is insured by a prescribed insurer against all loss that may arise because of the borrower’s default. For this section, a valuation of a property made by a person is an independent valuation of the property if the trustee— instructed and employed the person, independently of any owner of the property, to make the valuation; and reasonably believed the person was competent to make the valuation. In this section— prescribed insurer means an entity, prescribed by regulation, that carries on the business of insurance. (sec.78-ssec.1) This section applies if a trustee lends trust funds on the security of property. (sec.78-ssec.2) The trustee is not in breach of trust only because of the comparison of the amount of the loan with the value of the property when the loan was made if— it appears to the court that— in making the loan, the trustee was acting on an independent valuation of the property; and the amount of the loan was not more than two-thirds of the value of the property stated in the independent valuation; and the loan was made in reliance on the independent valuation; or the trustee is insured by a prescribed insurer against all loss that may arise because of the borrower’s default. (sec.78-ssec.3) For this section, a valuation of a property made by a person is an independent valuation of the property if the trustee— instructed and employed the person, independently of any owner of the property, to make the valuation; and reasonably believed the person was competent to make the valuation. (sec.78-ssec.4) In this section— prescribed insurer means an entity, prescribed by regulation, that carries on the business of insurance.
This section applies if— a trustee improperly lends trust funds on the security of property; but the loan would have been a proper investment if a lesser amount had been lent. For the trustee’s liability in relation to the investment— the security is taken to be a proper investment in relation to the lesser amount; and the trustee is liable only for the difference between the actual amount lent and the lesser amount, with interest. (sec.79-ssec.1) This section applies if— a trustee improperly lends trust funds on the security of property; but the loan would have been a proper investment if a lesser amount had been lent. (sec.79-ssec.2) For the trustee’s liability in relation to the investment— the security is taken to be a proper investment in relation to the lesser amount; and the trustee is liable only for the difference between the actual amount lent and the lesser amount, with interest.
This section applies in relation to a proceeding against a trustee for a breach of trust in relation to the exercise of an investment power. The court may, in considering the question of the trustee’s liability, take the following matters into account— the nature and purpose of the trust; the amount of the trust funds invested in the exercise of the investment power; whether the trustee had regard to the matters mentioned in section 71 to the extent they were appropriate to the circumstances of the trust; whether the trust investments have been made under an investment strategy formulated in accordance with the duty of a trustee under this part; the extent to which the trustee acted on advice that the trustee reasonably believed— was given by a person who was independent and competent to give the advice; and was impartial. (sec.80-ssec.1) This section applies in relation to a proceeding against a trustee for a breach of trust in relation to the exercise of an investment power. (sec.80-ssec.2) The court may, in considering the question of the trustee’s liability, take the following matters into account— the nature and purpose of the trust; the amount of the trust funds invested in the exercise of the investment power; whether the trustee had regard to the matters mentioned in section 71 to the extent they were appropriate to the circumstances of the trust; whether the trust investments have been made under an investment strategy formulated in accordance with the duty of a trustee under this part; the extent to which the trustee acted on advice that the trustee reasonably believed— was given by a person who was independent and competent to give the advice; and was impartial.
This section applies in relation to a proceeding against a trustee for a breach of trust in relation to an investment if a loss has been, or is expected to be, sustained by the trust. The court may set off all or part of the loss resulting from the investment against all or part of any gain resulting from any other investment, whether or not the other investment is a breach of trust. The power of set-off conferred under subsection (2) is in addition to any other power or entitlement to set off all or part of any loss against any property. (sec.81-ssec.1) This section applies in relation to a proceeding against a trustee for a breach of trust in relation to an investment if a loss has been, or is expected to be, sustained by the trust. (sec.81-ssec.2) The court may set off all or part of the loss resulting from the investment against all or part of any gain resulting from any other investment, whether or not the other investment is a breach of trust. (sec.81-ssec.3) The power of set-off conferred under subsection (2) is in addition to any other power or entitlement to set off all or part of any loss against any property.
A trustee has, in relation to the trust property, all the powers of an absolute owner of the property. See, however, part 5 in relation to the duties of a trustee in administering a trust. See also the Succession Act 1981 , section 49B in relation to particular limitations on a personal representative’s power to carry on a business. Without limiting subsection (1) , the powers conferred on a trustee under subsection (1) include the following powers— the power to sell the trust property; the power to lease the trust property or to renew, extend or vary a lease of the trust property; the power to mortgage the trust property or to renew, extend or vary a mortgage of the trust property; for trust property that is securities of a corporation—the power to deal with the securities; the power to settle a debt or claim in relation to the trust property; the power to insure the trust property against the loss of or damage to the trust property or any risk or liability relating to the trust property. A power conferred under subsection (1) , other than a power mentioned in subsection (2) (a) to (f) , may be excluded or modified by an express statement to that effect in the trust instrument. See, however, section 216 in relation to the exercise of particular powers under this section by a statutory trustee. (sec.82-ssec.1) A trustee has, in relation to the trust property, all the powers of an absolute owner of the property. See, however, part 5 in relation to the duties of a trustee in administering a trust. See also the Succession Act 1981 , section 49B in relation to particular limitations on a personal representative’s power to carry on a business. (sec.82-ssec.2) Without limiting subsection (1) , the powers conferred on a trustee under subsection (1) include the following powers— the power to sell the trust property; the power to lease the trust property or to renew, extend or vary a lease of the trust property; the power to mortgage the trust property or to renew, extend or vary a mortgage of the trust property; for trust property that is securities of a corporation—the power to deal with the securities; the power to settle a debt or claim in relation to the trust property; the power to insure the trust property against the loss of or damage to the trust property or any risk or liability relating to the trust property. (sec.82-ssec.3) A power conferred under subsection (1) , other than a power mentioned in subsection (2) (a) to (f) , may be excluded or modified by an express statement to that effect in the trust instrument.
A trustee may postpone the sale, calling in or conversion of trust property that the trustee has a duty to sell. Subject to an express contrary intention in the trust instrument, if the trustee’s duty to sell arises because of a trust or direction for sale, the trustee may postpone the sale of the trust property for an indefinite and unlimited period, whether or not that period is longer than the period during which the trust or direction for sale remains valid. However, this section does not apply if the trust property is of a wasting, speculative or reversionary nature. See, however, the Succession Act 1981 , section 49B in relation to particular limitations on a personal representative’s power to carry on a business. See also section 216 in relation to the exercise of power under this section by a statutory trustee. (sec.83-ssec.1) A trustee may postpone the sale, calling in or conversion of trust property that the trustee has a duty to sell. (sec.83-ssec.2) Subject to an express contrary intention in the trust instrument, if the trustee’s duty to sell arises because of a trust or direction for sale, the trustee may postpone the sale of the trust property for an indefinite and unlimited period, whether or not that period is longer than the period during which the trust or direction for sale remains valid. (sec.83-ssec.3) However, this section does not apply if the trust property is of a wasting, speculative or reversionary nature.
A trustee may, in relation to the trust property, do anything, make any omission, and execute any instrument, necessary to carry into effect the powers and authorities given under this Act or the trust instrument.
Sourced from Queensland Legislation (legislation.qld.gov.au), CC BY 4.0.
This Act may be cited as the Trusts Act 2025 .
This Act commences on a day to be fixed by proclamation.
This Act applies in relation to a trust whether created before or after, or partly before and partly after, the commencement of this Act, except to the extent this Act or another Act provides otherwise. For an example of an Act providing otherwise, see the Land Act 1994 , section 90 . Also, this Act applies despite a contrary intention in any trust instrument, except to the extent this Act provides otherwise. This Act does not prevent a settlor conferring on a trustee any powers additional to or greater than those conferred under this Act. Any additional or greater power conferred on a trustee by a settlor has effect and is exercisable in the same way, and with the same consequences, as a power conferred under this Act. Subsection (4) applies subject to an express contrary intention in the trust instrument. The powers conferred on a trustee under this Act are in addition to the powers conferred on the trustee under any other Act. In this section— trustee includes a person exercising the powers of a trustee under this Act. (sec.3-ssec.1) This Act applies in relation to a trust whether created before or after, or partly before and partly after, the commencement of this Act, except to the extent this Act or another Act provides otherwise. For an example of an Act providing otherwise, see the Land Act 1994 , section 90 . (sec.3-ssec.2) Also, this Act applies despite a contrary intention in any trust instrument, except to the extent this Act provides otherwise. (sec.3-ssec.3) This Act does not prevent a settlor conferring on a trustee any powers additional to or greater than those conferred under this Act. (sec.3-ssec.4) Any additional or greater power conferred on a trustee by a settlor has effect and is exercisable in the same way, and with the same consequences, as a power conferred under this Act. (sec.3-ssec.5) Subsection (4) applies subject to an express contrary intention in the trust instrument. (sec.3-ssec.6) The powers conferred on a trustee under this Act are in addition to the powers conferred on the trustee under any other Act. (sec.3-ssec.7) In this section— trustee includes a person exercising the powers of a trustee under this Act.
This Act binds all persons, including the State and, to the extent the legislative power of the Parliament permits, the Commonwealth and the other States.
The dictionary in schedule 1 defines particular words used in this Act.
Trust includes— an implied, resulting, bare or constructive trust; and the duties incidental to the office of a personal representative.
Trustee includes— a trustee corporation; and another corporation in which property subject to a trust is vested; and a personal representative; and a statutory trustee. A person, other than a person under a legal incapacity, is a statutory trustee in relation to trust property comprising land if— the person is beneficially entitled to possession of the land, or to the rents and profits of the land; and apart from this section, there is no trustee of the land. See part 14 in relation to statutory trustees. (sec.7-ssec.1) Trustee includes— a trustee corporation; and another corporation in which property subject to a trust is vested; and a personal representative; and a statutory trustee. (sec.7-ssec.2) A person, other than a person under a legal incapacity, is a statutory trustee in relation to trust property comprising land if— the person is beneficially entitled to possession of the land, or to the rents and profits of the land; and apart from this section, there is no trustee of the land. See part 14 in relation to statutory trustees.
The trust instrument , in relation to a trust, is any instrument creating the trust, as modified by all validly executed amendments. In this section— instrument includes an Act. (sec.8-ssec.1) The trust instrument , in relation to a trust, is any instrument creating the trust, as modified by all validly executed amendments. (sec.8-ssec.2) In this section— instrument includes an Act.
Trust property includes— property settled on any trust; and property subject to any implied, resulting, bare or constructive trust; and property subject to any trust or direction for sale, however arising; and land vested in a person for an estate for the person’s own life or any other life, or for a term of years determinable on life not being a mere lease at rent, or for any greater estate not being a fee simple absolute; and land in relation to which a person has, under a will, a personal licence to reside for the person’s own life or any other life, or for any lesser period; and the estate of a deceased person. A reference in this Act to trust property includes a reference to a part of the trust property. (sec.9-ssec.1) Trust property includes— property settled on any trust; and property subject to any implied, resulting, bare or constructive trust; and property subject to any trust or direction for sale, however arising; and land vested in a person for an estate for the person’s own life or any other life, or for a term of years determinable on life not being a mere lease at rent, or for any greater estate not being a fee simple absolute; and land in relation to which a person has, under a will, a personal licence to reside for the person’s own life or any other life, or for any lesser period; and the estate of a deceased person. (sec.9-ssec.2) A reference in this Act to trust property includes a reference to a part of the trust property.
A person has capacity for a matter only if the person is capable of— understanding the nature and effect of decisions about the matter; and freely and voluntarily making decisions about the matter; and communicating the decisions in some way. A person has impaired capacity for a matter if the person does not have capacity for the matter. administering a trust (sec.10-ssec.1) A person has capacity for a matter only if the person is capable of— understanding the nature and effect of decisions about the matter; and freely and voluntarily making decisions about the matter; and communicating the decisions in some way. (sec.10-ssec.2) A person has impaired capacity for a matter if the person does not have capacity for the matter.
The established rules of law relating to what is charitable , as in force immediately before the commencement, continue to apply. the relief of poverty the advancement of education the advancement of religion Despite any rule of law to the contrary, it is declared that it is and always has been charitable to provide, or to help in providing, facilities for recreation or other leisure time activity, if the facilities are provided in the interests of social welfare. For subsection (2) , facilities are provided in the interests of social welfare only if— the facilities are provided with the object of improving the conditions of life for the persons for whom the facilities are primarily intended; and either— those persons have need of the facilities because of their youth, age, infirmity or disability, poverty or social and economic circumstances; or the facilities are to be available to the members of the public at large or to a substantial section of the public at large. Nothing in this section limits the requirement that, in order to be charitable, a gift, trust or institution must be for the public benefit. (sec.11-ssec.1) The established rules of law relating to what is charitable , as in force immediately before the commencement, continue to apply. the relief of poverty the advancement of education the advancement of religion (sec.11-ssec.2) Despite any rule of law to the contrary, it is declared that it is and always has been charitable to provide, or to help in providing, facilities for recreation or other leisure time activity, if the facilities are provided in the interests of social welfare. (sec.11-ssec.3) For subsection (2) , facilities are provided in the interests of social welfare only if— the facilities are provided with the object of improving the conditions of life for the persons for whom the facilities are primarily intended; and either— those persons have need of the facilities because of their youth, age, infirmity or disability, poverty or social and economic circumstances; or the facilities are to be available to the members of the public at large or to a substantial section of the public at large. (sec.11-ssec.4) Nothing in this section limits the requirement that, in order to be charitable, a gift, trust or institution must be for the public benefit.
In this Act, a reference to a trustee lending or investing trust funds on the security of property includes a reference to a trustee lending or investing trust funds on a new security or on the transfer of an existing security.
The following persons can not be appointed as a trustee— a child; an individual who is an insolvent under administration; a corporation that is a Chapter 5 body corporate; a person who is disqualified from being appointed as a trustee by an order made under section 168 . The purported appointment of a person mentioned in subsection (1) (a) , (b) , (c) or (d) is of no effect. Subsections (1) (b) and (c) and (2) do not affect the appointment of— an individual who becomes an insolvent under administration after the individual’s appointment as trustee has taken effect; or a corporation that becomes a Chapter 5 body corporate after the corporation’s appointment as trustee has taken effect. See, however— sections 20 , 23 and 29 in relation to the replacement and removal of a trustee who becomes an insolvent under administration; and sections 20 and 29 in relation to the replacement and removal of a trustee that becomes a Chapter 5 body corporate. This section does not apply in relation to the appointment of a personal representative. Also, to remove any doubt, it is declared that this section does not limit the court’s power to declare that a person mentioned in subsection (1) (a) , (b) , (c) or (d) holds property as a trustee. (sec.13-ssec.1) The following persons can not be appointed as a trustee— a child; an individual who is an insolvent under administration; a corporation that is a Chapter 5 body corporate; a person who is disqualified from being appointed as a trustee by an order made under section 168 . (sec.13-ssec.2) The purported appointment of a person mentioned in subsection (1) (a) , (b) , (c) or (d) is of no effect. (sec.13-ssec.3) Subsections (1) (b) and (c) and (2) do not affect the appointment of— an individual who becomes an insolvent under administration after the individual’s appointment as trustee has taken effect; or a corporation that becomes a Chapter 5 body corporate after the corporation’s appointment as trustee has taken effect. See, however— sections 20 , 23 and 29 in relation to the replacement and removal of a trustee who becomes an insolvent under administration; and sections 20 and 29 in relation to the replacement and removal of a trustee that becomes a Chapter 5 body corporate. (sec.13-ssec.4) This section does not apply in relation to the appointment of a personal representative. (sec.13-ssec.5) Also, to remove any doubt, it is declared that this section does not limit the court’s power to declare that a person mentioned in subsection (1) (a) , (b) , (c) or (d) holds property as a trustee.
This is an opening excerpt, not the complete document.