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Part 3 Appointment, discharge and removal of trustees and devolution of trusts
2 See also section 166 in relation to the court’s power to appoint and
remove trustees.
(4) The administrator or attorney may appoint themself as a
trustee under subsection (3).
(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.
(6) To remove any doubt, it is declared that—
(a) 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
(b) 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.
(7) This section applies subject to a contrary intention in—
(a) the trust instrument; or
(b) the order or instrument by which the administrator or
attorney is appointed.
23 Appointment of trustees—replacement of last continuing
trustee who is insolvent under administration
(1) This section applies if all of the following apply—
(a) the last continuing trustee of a trust is an insolvent under
administration;
(b) 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;
(c) 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
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Part 3 Appointment, discharge and removal of trustees and devolution of trusts
within a reasonable period after the later of the
following to happen to the last continuing trustee—
(i) becoming the last continuing trustee;
(ii) becoming an insolvent under administration.
(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.
(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.
Notes—
1 See section 14 in relation to the limit applying to the number of
trustees of particular trusts.
2 See also section 166 in relation to the court’s power to appoint and
remove trustees.
(4) The power conferred under subsection (3) is a personal right
only of the last continuing trustee.
24 Appointment of trustees—additional trustees
(1) This section applies in relation to a trust if—
(a) 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
(b) section 14 does not apply to the trust.
(2) The following persons may, by instrument, appoint 1 or more
persons as additional trustees of the trust—
(a) if there is an appointor for the trust—the appointor;
(b) 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.
Notes—
1 See section 14 in relation to the limit applying to the number of
trustees of particular trusts.
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Trusts Bill 2025
Part 3 Appointment, discharge and removal of trustees and devolution of trusts
2 See also section 166 in relation to the court’s power to appoint
additional trustees.
(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.
(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).
25 Appointment of trustees—separate trustees of separate
trust property
(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.
(2) If a new trustee may be appointed under this division—
(a) 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
(b) a continuing trustee may be appointed or continue as a
trustee of the separate trust property; and
(c) if only 1 trustee of the trust property was originally
appointed—1 trustee may be appointed of the separate
trust property.
26 Powers etc. of trustees appointed under division
(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.
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Part 3 Appointment, discharge and removal of trustees and devolution of trusts
(2) Subsection (1) applies in relation to the trustee both before
and after the trust property is vested in the trustee.
Division 3 Discharge and removal of trustees
27 When minimum trustee requirements are satisfied
For this division, the minimum trustee requirements for a
trust are satisfied if the trust has—
(a) at least 1 trustee that is a corporation; or
Examples of a corporation—
• the public trustee
• a licensed trustee company
• a company registered under the Corporations Act
• a local government
Note—
See section 16 in relation to the power of a local government to
act in the administration of a trust.
(b) at least 2 trustees who are individuals; or
(c) 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.
28 Discharge of trustee on appointment of new trustee
(1) This section applies if—
(a) a new trustee is appointed under division 2 to replace a
trustee (the replaced trustee); and
(b) on the appointment of the new trustee, the minimum
trustee requirements for the trust are satisfied.
(2) On the appointment of the new trustee, the replaced trustee is
discharged from the trust.
(3) However, if the replaced trustee has declared, as mentioned in
section 20(1)(b), that the trustee wishes to be discharged from
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Trusts Bill 2025
Part 3 Appointment, discharge and removal of trustees and devolution of trusts
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.
29 Removal and discharge of trustee without appointment of
new trustee
(1) This section applies in relation to a relevant trustee mentioned
in section 20(1)(c), (d), (e), (f), (g) or (h).
(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.
(3) The following persons may, by instrument, remove the
relevant trustee without appointing a new trustee to replace
the relevant trustee—
(a) if there is an appointor for the trust—the appointor;
(b) 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.
(4) However, subsection (3) applies only if, on the removal of the
relevant trustee, the minimum trustee requirements for the
trust will be satisfied.
(5) On the removal of the relevant trustee under this section, the
relevant trustee is discharged from the trust.
30 Discharge of trustee who wishes to be discharged
(1) This section applies if—
(a) 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
(b) on the discharge, the minimum trustee requirements will
be satisfied for the trust or relevant part; and
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Part 3 Appointment, discharge and removal of trustees and devolution of trusts
(c) the trustee’s co-trustees and, if there is an appointor for
the trust, the appointor, by instrument, agree to—
(i) discharge the trustee from the trusts or relevant
part; and
(ii) vest the trust property in the co-trustees alone.
(2) Subject to subsection (3), the trustee is discharged from the
trusts or relevant part.
(3) The discharge of the trustee takes effect—
(a) 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
(b) if, or to the extent, paragraph (a) does not
apply—according to the terms of the instrument
mentioned in subsection (1)(c).
(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.
(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.
Division 4 Notification of former delegate if
trustee is replaced, removed or
discharged
31 Particular persons to notify person who was trustee’s
delegate
(1) This section applies if—
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Trusts Bill 2025
Part 3 Appointment, discharge and removal of trustees and devolution of trusts
(a) a trustee is—
(i) replaced under division 2; or
(ii) removed under section 29 or under the trust
instrument, without being replaced; or
(iii) discharged under section 30; and
(b) 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.
(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.
(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.
(4) In this section—
relevant person means—
(a) 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
(b) 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.
Division 5 Vesting of trust property on
appointment, removal or discharge
of trustees
32 Application of division
(1) This division applies if, by instrument (an instrument of
change)—
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Trusts Bill 2025
Part 3 Appointment, discharge and removal of trustees and devolution of trusts
(a) 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
(b) a trustee is—
(i) removed under section 29; or
(ii) discharged under section 30.
(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.
Note—
See division 7 in relation to the vesting of trust property on the death of
the last continuing trustee of a trust.
33 Definitions for division
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.
34 Vesting of trust property
(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—
(a) divests the trust property from the pre-change trustees;
and
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Trusts Bill 2025
Part 3 Appointment, discharge and removal of trustees and devolution of trusts
(b) without any conveyance, transfer or assignment, vests
the trust property in—
(i) the post-change trustee; or
(ii) if there is more than 1 post-change trustee—the
post-change trustees, as joint tenants.
(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—
(a) the divesting and vesting of the trust property are subject
to the requirements of the other Act or law; and
(b) the instrument of change—
(i) vests in the post-change trustee a right to call for a
transfer of the trust property; or
(ii) 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.
35 Transfer etc. of trust property
(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).
(2) The instrument of change is taken to be a conveyance of the
trust property from the pre-change trustees to—
(a) the post-change trustee; or
(b) if there is more than 1 post-change trustee—the
post-change trustees, as joint tenants.
(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.
(4) If the consent of a person is needed to the conveyance,
transfer or assignment of the trust property—
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Trusts Bill 2025
Part 3 Appointment, discharge and removal of trustees and devolution of trusts
(a) the vesting of the property under this division is subject
to the consent; but
(b) 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.
Division 6 Devolution of trusts on death of
trustee
36 Exercise of trust powers etc. by surviving trustees
(1) This section applies if—
(a) a power is given to, or a trust is imposed on, 2 or more
trustees jointly; and
(b) 1 or more of the trustees dies.
(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.
Division 7 Vesting of trust property and
devolution of trusts—death of last
continuing trustee
37 Application of division
This division applies if the last continuing trustee of a trust
dies.
38 Vesting of trust property in public trustee
(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.
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