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Part 7 General powers of trustees
84 Power to execute instruments etc.
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.
Division 2 Expenditure in relation to trust
property
85 Power to expend amounts
(1) A trustee may, in relation to the trust property, expend an
amount, including an amount from capital, that is subject to
the same trusts for 1 or more of the following purposes—
(a) to maintain or renovate the trust property, whether or not
the work is necessary for the purpose of salvaging the
property;
(b) to improve or develop the trust property;
(c) to pay calls on shares subject to the same trust;
(d) to pay outgoings in relation to the trust property;
(e) if the trust property is land or a water allocation—to
subdivide the land or water allocation and pay related
expenses;
(f) to provide, construct or maintain any of the following
for the trust property if they are likely to be beneficial to
the property—
(i) roads, footpaths and other works for pedestrian or
vehicular use;
(ii) utility services and other works.
(2) If the trustee is a trustee corporation, the trustee may exercise
the power conferred under subsection (1)(c) even if the shares
on which the calls are made are shares in the trustee
corporation.
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(3) In this section—
maintain, in relation to property, includes repair the property
and provide for the upkeep of the property.
outgoings includes rates, premiums, taxes, assessments and
insurance premiums.
86 Power to apportion expenditure between income and
capital and recoup particular expenditure
(1) A trustee may, in relation to the trust property, apportion
expenditure made under section 85 between capital and
income or otherwise among the persons entitled to the capital
or income in the way the trustee considers equitable.
(2) If all or part of the expenditure is made out of capital, the
trustee may recoup the expenditure made out of capital from
income, if to do so would be equitable in all the
circumstances.
(3) If all or part of the expenditure is made out of income, the
trustee may recoup the expenditure made out of income from
capital, if to do so would be equitable in all the circumstances.
(4) The exercise of power under this section is subject to—
(a) this Act; and
(b) any direction of the court; and
(c) an express contrary intention in the trust instrument.
Division 3 Appropriation
87 Definitions for division
In this division—
entitled person see section 90(1)(a) and (b).
extension application see section 89(4).
interested person see section 88(2).
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Trusts Bill 2025
Part 7 General powers of trustees
variation application see section 89(1)(a).
88 Notice of proposed appropriation
(1) This section applies if a trustee proposes to appropriate trust
property under section 90.
(2) Before making the appropriation, the trustee must give written
notice of the proposed appropriation to each person interested
in the appropriation (each an interested person).
(3) However, if the trustee is an interested person, subsection (2)
does not require the trustee to give notice of the proposed
appropriation to themself.
(4) Subsection (5) applies if an interested person is—
(a) an adult with impaired capacity for financial matters
relating to the proposed appropriation; or
(b) a child.
(5) The trustee may comply with subsection (2) in relation to the
interested person only by giving notice to—
(a) if the interested person is an adult—each administrator
or attorney for the interested person who is authorised,
under their appointment as administrator or attorney, to
exercise power for financial matters relating to the
proposed appropriation; or
(b) if the interested person is a child—each guardian of the
child.
89 Interested person may apply to vary proposed
appropriation or waive right to apply
(1) An interested person who is given notice under section 88 of a
proposed appropriation may—
(a) make an application to the court to vary the proposed
appropriation (a variation application); or
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Part 7 General powers of trustees
(b) by written notice given to the trustee at any time, waive
the interested person’s right to make a variation
application.
(2) Subject to subsections (3) and (4), a variation application must
be started within 2 months after the day the interested person
is given notice of the proposed appropriation.
(3) The interested person may, by written notice given to the
trustee within the period mentioned in subsection (2), shorten
the period that would otherwise apply under subsection (2) to
the shorter period stated in the notice.
(4) The court may, on application (an extension application)
made by the interested person at any time, allow a variation
application to be started within a longer period.
(5) The court may make the orders it considers appropriate in
relation to a variation application or an extension application.
(6) This section applies subject to section 91.
90 Appropriation to satisfy legacy or share generally
(1) A trustee may appropriate any part of the trust property to
satisfy all or part of—
(a) a legacy, payable out of the trust property, to which a
person (an entitled person) is entitled; or
(b) a share of the trust property, whether contingent or
absolute, to which a person (also an entitled person) is
entitled.
(2) An appropriation of trust property under this section may be
made only if—
(a) the appropriation does not adversely affect any specific
gift of the trust property; and
(b) the entitled person consents to the appropriation; and
(c) for an appropriation in relation to which the trustee is an
interested person, the appropriation has been approved
by—
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(i) each other interested person; or
(ii) the court, on an ex parte application by the trustee
or otherwise; and
(d) notice of the proposed appropriation has been given
under section 88; and
(e) the circumstances mentioned in subsection (3)(a), (b) or
(c) apply.
(3) For subsection (2)(e), the circumstances are—
(a) all of the following apply—
(i) the relevant application period for each interested
person has ended;
(ii) no interested person has, within the relevant
application period for the person, started a
variation application and served the application on
the trustee;
(iii) if any interested person has, since the end of the
relevant application period for the person, started
an extension application and served the application
on the trustee—the extension application has been
dismissed by the court; or
(b) if any interested person has started a variation
application and served the application on the trustee
within the relevant application period for the person or
any longer period allowed by the court on an extension
application—the variation application has been
dismissed by the court; or
(c) each interested person has given the trustee notice under
section 89(1)(b) waiving the person’s right to make a
variation application.
(4) For making an appropriation under this section, the trustee
may, under section 117, ascertain and fix the value of all or
any part of the trust property as at the day the appropriation is
made.
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Part 7 General powers of trustees
(5) An appropriation made under this section is conclusive and
binding on all persons who are, or may be, interested in the
trust property, unless varied by the court on a variation
application.
(6) This section does not limit or otherwise affect any power of
appropriation conferred under the trust instrument.
(7) This section applies subject to section 91.
(8) In this section—
relevant application period, for an interested person, means
the following period within which a variation application by
the interested person must be started—
(a) if paragraph (b) does not apply—the period mentioned
in section 89(2);
(b) if the interested person has given the trustee notice
under section 89(3)—the shorter period stated in the
notice.
91 Exercise of power for particular interested persons and
entitled persons
(1) If an interested person is a child, only the guardian of the child
may—
(a) give notice under section 89(1)(b) waiving the interested
person’s right to make a variation application; or
(b) give notice under section 89(3) shortening the period
that would otherwise apply under section 89(2); or
(c) approve an appropriation of trust property, as mentioned
in section 90(2)(c)(i).
(2) If an entitled person is a child, only the guardian of the child
may give consent for the child to the making of an
appropriation of trust property, as mentioned in section
90(2)(b).
(3) If there is more than 1 guardian of a child, the guardians must
act jointly in exercising power for the child for a matter
mentioned in subsection (1) or (2).
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(4) Sections 89 and 90 do not limit or otherwise affect—
(a) the operation of a provision of another Act that provides
for how, or by whom, an application to the court may be
made on behalf of a person under a legal incapacity; or
(b) the powers of an administrator or attorney for a person
with impaired capacity for a matter.
92 Appropriation to pay annuity
(1) This section applies if a trust instrument provides for the
payment of an annuity, whether or not the trust instrument
provides that the annuity may be charged on the trust property.
(2) The trustee may set aside and appropriate out of any trust
property available for payment of the annuity an amount (the
appropriated amount) that, in the trustee’s opinion at the time
of appropriation, is enough, when invested, to provide out of
the income of the investment the amount required to pay the
annuity.
(3) After the appropriation has been made—
(a) the annuitant has the same right of recourse to the
capital and income of the appropriated amount as the
annuitant would have had against the trust property if no
appropriation had been made; and
(b) the trustee may distribute the residue of the trust
property and the income of the trust property in
accordance with the trust instrument.
(4) On the distribution of the residue of the trust property and the
income of the trust property under subsection (3)(b), the
residue and the income cease to be liable for the annuity.
(5) In this section—
annuity includes any periodic payment.
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Authorised by the Parliamentary Counsel
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Trusts Bill 2025
Part 7 General powers of trustees
93 Notice to relevant registrar if land or water allocation to
be distributed after appropriation to pay annuity
(1) This section applies if a trustee proposes to distribute, under
section 92(3)(b), trust property that is land or a water
allocation.
(2) The trustee must give the relevant registrar written notice that
the trust property may be distributed because of an
appropriation made under section 92(2) for payment of an
annuity.
(3) The relevant registrar is not required to inquire into whether
the appropriated amount set aside under section 92(2) is
enough to provide for payment of the annuity.
Division 4 Delegation
Subdivision 1 Preliminary
94 Definitions for division
In this division—
delegate see section 95(4)(b).
instrument of delegation see section 95(2).
stated circumstances, in relation to the delegation of a matter,
see section 95(4)(a).
Subdivision 2 Delegation by trustees
95 Power to delegate matters
(1) This section applies if a trustee—
(a) is absent, or is about to be absent, from the State; or
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Part 7 General powers of trustees
(b) is, or may be about to become, because of physical
infirmity, temporarily incapable of performing the duties
of a trustee.
(2) The trustee may, by instrument (an instrument of delegation),
delegate the administration or exercise of all or any trusts,
powers, authorities and discretions vested in the trustee as
trustee to—
(a) an individual who resides in the State, if—
(i) for an individual who is a co-trustee of the
trustee—the individual is not the trustee’s only
co-trustee; or
(ii) for another individual—section 13(1) would not
prevent the individual from being appointed as a
trustee; or
(b) a trustee corporation that carries on business in the
State, if section 13(1) would not prevent the trustee
corporation from being appointed as a trustee.
(3) For subsection (2), it does not matter whether the trusts,
powers, authorities and discretions are vested in the trustee
alone or jointly with 1 or more other persons.
(4) The instrument of delegation must—
(a) state the circumstances in which the delegation is to
operate (the stated circumstances); and
(b) be signed by the trustee and the person to whom the
matters are delegated (the delegate).
(5) This section applies despite any rule or principle of law or
equity to the contrary.
96 Period during which delegation is in effect
(1) The delegation of a matter under section 95 commences—
(a) on the happening of an event stated in the instrument of
delegation as the time the delegation commences; or
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(b) if the instrument of delegation does not state an event as
mentioned in paragraph (a)—
(i) on the day stated in the instrument of delegation as
the day the delegation commences; or
(ii) if no day is stated for that purpose—on the day the
instrument of delegation is signed.
(2) The delegation of the matter continues in effect until the first
of the following happens—
(a) the happening of an event stated in the instrument of
delegation as the time the delegation ends;
(b) the beginning of the day, if any, stated in the instrument
of delegation as the day the delegation ends;
(c) the beginning of the day that is 12 months after the day
the delegation commences;
(d) the delegation is revoked under subdivision 3;
(e) the trustee is replaced or removed, or is otherwise
discharged from the trust, whether under part 3 or
otherwise;
(f) the trustee dies.
97 Effect of delegation
(1) If a trustee delegates a matter under section 95, the delegate
has, within the scope of the delegation, the same trusts,
powers, authorities, discretions, duties and liabilities in
relation to the matter as the delegate would have if the
delegate were the trustee, other than the power of delegation
conferred under section 95.
(2) However, the delegate may perform or exercise the delegated
matter only in the stated circumstances.
(3) The delegate is subject to the court’s jurisdiction and power in
the administration of the trust as if the delegate were the
trustee.
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Part 7 General powers of trustees
98 Liability of trustee for acts and omissions of delegate
If a trustee delegates a matter under section 95, the trustee is
liable for the acts done, and the omissions made, by the
delegate in relation to the matter as if they were the trustee’s
own acts and omissions.
99 Trustee to notify particular persons of delegation
(1) If a trustee delegates a matter under section 95, the trustee
must give written notice of the delegation to—
(a) if the trustee has any co-trustees—each co-trustee; and
(b) if there is an appointor for the trust who is not also the
trustee—the appointor.
(2) If neither subsection (1)(a) nor (b) applies, the trustee must
give written notice of the delegation to each beneficiary of the
trust, to the extent it is practicable to do so.
(3) Subsection (4) applies if a beneficiary to whom notice must be
given under subsection (2) is—
(a) an adult with impaired capacity for financial matters
relating to the adult’s interest under the trust; or
(b) a child.
(4) The trustee may comply with subsection (2) in relation to the
beneficiary only by giving notice to—
(a) if the beneficiary is an adult—each administrator or
attorney for the beneficiary who is authorised, under
their appointment as administrator or attorney, to
exercise power for financial matters relating to the
beneficiary’s interest under the trust; or
(b) if the beneficiary is a child—each guardian of the child.
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