Public Trustee Act 1930 (Tas)

Public Trustee Act 1930 An Act to consolidate and amend the law relating to the constitution and regulation of The Public Trustee [Royal Assent 23 December 1930] Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows: PART I - Preliminary 1. Short title This Act may be cited as the Public Trustee Act 1930 . 2. . . . . . . . . 3. Interpretation (1) In this Act, unless the contrary intention appears – bank means an authorised deposit-taking institution that is authorised under a law of the Commonwealth to carry on banking business and to call itself a bank; Board has the same meaning as in the Government Business Enterprises Act 1995 ; chief executive officer has the same meaning as in the Government Business Enterprises Act 1995 ; common fund means the common fund of the Public Trustee created by this Act; Court means the Supreme Court; director has the same meaning as in the Government Business Enterprises Act 1995 ; employee has the same meaning as in the Government Business Enterprises Act 1995 ; estate means any property under administration or held, managed, or controlled by the Public Trustee in any capacity whatsoever; executor or administrator includes administrator with the will annexed for general, special, or limited purposes; function includes duty; group investment fund means a group investment fund established under section 50A ; investment committee means the investment committee established as required by section 37 ; probate or letters of administration includes letters of administration with the will annexed for general, special, or limited purposes; Public Trustee means The Public Trustee established under section 4 ; Registrar means the Registrar of the Supreme Court; spouse, in relation to a person, includes the person who is in a significant relationship, within the meaning of the Relationships Act 2003 , with that person; trust instrument includes an order of a court that gives rise to a trust. (2) . . . . . . . . PART II - Constitution of the Public Trustee 4. The Public Trustee The Public Trustee constituted as a corporation sole by this Act as in force immediately before 1 July 1995 is continued in force as a body corporate. 5. Delegation by chief executive officer The chief executive officer may delegate to an employee any of his or her functions or powers, other than – (a) a function or power that has been delegated to the chief executive officer by the Board subject to the condition that the chief executive officer must not delegate it; and (b) this power of delegation. 5A. . . . . . . . . 6. Evidence of delegation A document signed or purporting to be signed by a director, chief executive officer or employee under a delegation from the Board or chief executive officer is evidence of that delegation unless the contrary is shown. 6A. Performance by Public Trustee of certain acts, &c. (1) Where any thing may or is required to be done by or in relation to the Public Trustee and that thing can only be done by or in relation to a natural person, that thing may be done by or in relation to the chief executive officer or an employee to whom the chief executive officer or Board has delegated the performance and exercise of functions and powers in respect of that thing. (2) Any powers conferred on the Public Trustee by a power of attorney may be exercised by the Board or a person to whom the Board has delegated that power. 7. Public Trustee substituted for Curator of Intestate Estates (1) The Public Trustee shall be administrator of all and singular the real and personal estate, effects, and credits of every deceased person whose estate the Curator of Intestate Estates shall have been authorized to collect, manage, or administer, as fully as if letters of administration had been granted to the Public Trustee. (2) Wherever the expression "Curator of Intestate Estates" occurs in any Act, by-law, regulation, rule, document, deed, or instrument, the same shall be read and construed as if the expression "Public Trustee" were substituted therefor. (3) The operation of this section shall relate back to the commencement of the Public Trust Office Act 1912 . 8. Confidentiality A director, chief executive officer or employee must not divulge any information that came into his or her possession as a director, chief executive officer or employee except – (a) as is necessary in the performance of the office of director or in the course of employment; or (b) as authorised or required by law. 9. . . . . . . . . 10. Employment of Australian legal practitioners, &c. In determining the persons, other than bankers, to be engaged in relation to any trust, the Public Trustee shall, wherever practicable, take into consideration the wishes of the creator of the trust, and of the advisory trustee, if any, and of the beneficiaries, either expressed or implied by the practice of the creator of the trust, or in the previous management of the trust. 11. Fees charged to be as prescribed (1) Notwithstanding anything to the contrary in the Government Business Enterprises Act 1995 or any other law, the Public Trustee may, in addition to any money properly expended by it and chargeable against an estate that is under the Public Trustee's administration or control, charge and receive for work done or services, goods or information supplied fees, commission, remuneration, expenses and charges determined by the Public Trustee but not exceeding any maximum fees, commissions, remunerations and charges prescribed in the regulations. (2) If the Public Trustee fails to set fees, commissions, remuneration, expenses and charges for the work done or services, goods or information supplied by it, the charges prescribed by the Public Trust Office Regulations 1971 as in force immediately before 1 July 1995 are taken to have been set by the Public Trustee. (2A) Subsection (2) has effect only for the period commencing on 1 July 1995 and ending on 31 December 1995. (3) The incidence of the fees and expenses under this section, as between capital and income, shall be determined by the Public Trustee, but any person aggrieved by such determination may apply to the Court to review the same. PART III - The placing of estates in the Public Trustee 12. Power of persons to appoint The Public Trustee to act as trustee, executor, &c. (1) Where any person or authority, within or without this State, now or hereafter has power to appoint a trustee, executor, administrator, guardian, committee, agent, attorney, or receiver, the Public Trustee may be so appointed. (2) The power to act as trustee shall include power to act as sole trustee for any of the purposes of the Settled Land Act 1884 . (3) The power to act as agent or attorney includes the power so to act for the investment of money in the common fund or a group investment fund, for such period and on such terms and conditions as are agreed upon between the Public Trustee and the principal. (4) Save as is in this Act otherwise provided, the Public Trustee shall not accept any appointment jointly with any other person. 13. . . . . . . . . 14. Administration by Public Trustee of benefit or relief funds (1) In any case in which a fund is raised by public or private subscriptions for the benefit or relief of any person or class of persons – (a) the fund may be paid to the Public Trustee to be administered by him and to be invested in the common fund, unless the Court otherwise directs; (b) the Public Trustee may recognize as a committee any persons whom he believes to have been appointed or authorized in that capacity by a substantial number of subscribers; (c) the Public Trustee, after conferring with the committee, may apply to the Court for directions as to the administration of the fund, and for that purpose may submit a scheme to the Court for approval; (d) the Court may approve the scheme with or without modification as it thinks fit, or may give such other directions as it thinks fit; (e) the Public Trustee shall administer the fund in accordance with the scheme so approved or the directions so given; (f) on the application of the Public Trustee or of the Attorney-General on the relation of any member of the committee, or of any person claiming an interest in the fund, the Court at any time may vary the scheme or give directions on any point or question relating to the scheme or the fund; (g) the Public Trustee shall obey all such directions. (2) This section shall apply to funds raised before or after the commencement of this Act. 15. Executors, administrators, or trustees authorized to appoint Public Trustee to act in their places (1) Except where he is expressly prohibited from so doing by the terms of the instrument under which he is acting – (a) an executor, whenever appointed and whether he has taken out probate or not; or (b) an administrator, whether the letters of administration are with the will annexed or otherwise and whenever the same were granted – may appoint in writing the Public Trustee to act as executor or administrator respectively in his place. (2) Whenever, under subsection (1) hereof, or under section 9 of the Public Trust Office Act 1912 , any executor or administrator with the will annexed appoints, or has appointed, the Public Trustee executor or such administrator, the Public Trustee shall, by force of such appointment, be also sole trustee if such executor or administrator were sole surviving trustee, or if there were no trustee appointed by the trust instrument or in existence. (3) Trustees, whenever appointed, and under whatsoever trust instrument appointed, may appoint the Public Trustee sole trustee, unless expressly prohibited, notwithstanding the terms of the trust as to the number of trustees; and executors, whose duties continue in the nature of a trusteeship after their administration is closed, shall be deemed, for the purposes of this subsection, to be trustees. (4) Where there are more trustees, executors, or administrators than one, any one trustee, executor, or administrator, as the case may be, may apply to the Court to have the Public Trustee appointed sole trustee, executor, or administrator, and such application may be made either before or after the will, if any, has been proved. (5) Where the consent of any person is required for the appointment of a trustee, executor, or administrator, and such person refuses to consent to the appointment of the Public Trustee, or is an infant, or is permanently absent from this State, or is under any other disability, the Court may appoint the Public Trustee without such consent. 16. Power of trustee to pay moneys due to infants to Public Trustee (1) Any trustee may pay any moneys due to any infant to the Public Trustee, and, by writing, direct the Public Trustee to account to such infant according to the provisions of the trust instrument, and such writing shall vest in the Public Trustee all the powers of such trustee in regard to such moneys. (2) Such trustee shall furnish the Public Trustee with a copy of the trust instrument, and the Public Trustee shall act in accordance therewith. (3) The writing referred to in subsection (1) of this section shall contain a certificate by the trustee that the amount so paid as aforesaid is the whole amount to which the infant is entitled under the trust instrument, and the Public Trustee shall not be concerned to inquire as to the truth of the statements contained in such writing. 17. Public Trustee entitled, on application, to administration of an intestate estate (1) Where any person domiciled in this State, or who has property in this State, has died or dies intestate, the Public Trustee, if he thinks fit to apply therefor, shall be entitled as of right to administration of the estate of such person, unless – (a) administration thereof has been granted to some other person and the same is being administered by him; or (b) any person domiciled in this State who, but for this section, would be entitled to such administration, makes application therefor to the Court before the same is granted to the Public Trustee. (2) The Public Trustee, before making an application under this section, shall give public notice in the prescribed form of his intention so to do, and such notice shall be published fourteen days before the application is made. (3) Such notice as aforesaid shall be in lieu of, and shall take the place of, a citation, and it shall not be necessary for the Public Trustee to take out or publish a citation. 18. Power of Public Trustee to apply to administer testate estate if no application for probate or administration within three months after death (1) Where any person domiciled in this State, or who has property in this State, has died or dies testate, and application for probate or letters of administration has not been made within three months after the death of such person, the Public Trustee may apply to the Court for letters of administration of the estate of such person, and the Court shall make such grant unless the person entitled to probate or letters of administration applies therefor, or shows to the satisfaction of the Court that the delay in making such application has been, and if the same continues that it still is, unavoidable or accidental. (2) On such application no costs shall be awarded against the Public Trustee. (3) On the application of any person entitled to probate or letters of administration with the will annexed who was out of this State when the grant to the Public Trustee was made, and who has not renounced or refused probate or administration, the Court may grant probate or letters of administration to such person in such manner and subject to such limitations or conditions as the Court thinks proper. (4) No such application shall be made until after fourteen days' notice in writing of the intention to apply for the same has been left at the office of the Public Trustee. (5) Upon the grant of probate or letters of administration to such person, all the powers, rights, duties, and liabilities of the Public Trustee, in any way relating to the estate thereby affected, shall cease, except as herein mentioned, and so much of such estate as has not then been administered by the Public Trustee shall vest in such person, subject to the payment to the Public Trustee of all moneys properly chargeable by him for commission, costs, charges, and expenses in relation to such estate, including all costs of and incidental to his application for probate or letters of administration. 19. Administration in other cases (1) Where any person domiciled in this State or who has property in this State has died, or shall hereafter die, the Court, on the application of the Public Trustee, may grant to him letters of administration of the estate of such person in any of the following cases: (a) Where such person leaves no executor willing and able to act in the execution of his will, and resident within the State; (b) Where every executor or administrator has died; (c) Where the estate or any portion thereof is liable to waste, and every executor or administrator or next-of-kin – (i) is absent from the locality of the estate; (ii) is not known; or (iii) has not been found – or the executor, administrator, or next-of-kin has requested the Public Trustee in writing to apply for such letters of administration; or (d) Where part of an estate already partly administered is unadministered owing to the disappearance or absence from this State, or the incapacity, of the executor or administrator, or where the executor or administrator has become bankrupt. (2) Upon an application by the Public Trustee under paragraph (d) of subsection (1) hereof, an absent or bankrupt executor or administrator may be discharged by the Court. 20. Administration of small estates without grant of probate or administration (1) Where any person domiciled in this State or who has property in this State has died, or dies, leaving property the gross value of which, as estimated by the Public Trustee, does not at the time of the election hereinafter mentioned exceed the prescribed amount, and no person has obtained probate or letters of administration, as the case may be, the Public Trustee may, in all cases in which he is entitled to apply for administration, in lieu thereof file in the office of the Registrar an election in writing to administer such estate, and setting forth– (a) the name, residence, and occupation, so far as then known to the Public Trustee, of such person at the date of his death; (b) the property forming the estate of such person so far as the same is then known to the Public Trustee; (c) the date of death of such person; and (d) if such person is believed by him to have died testate, that, after due inquiries, he believes that the document annexed to such election is the testator's last will, or an exemplification thereof, if probate of such will or other appropriate grant in respect thereof has been made out of the State, and that such will has been validly executed according to law. (2) On such election being filed the Public Trustee shall be deemed to be administrator or executor, as the case may be, of the property of the deceased person in all respects as if letters of administration or probate had been granted to him by the Court. (3) The Public Trustee shall publish in the Gazette a notice that he has made such election, and such notice shall be conclusive evidence that he is entitled to administer such estate. (4) If the Public Trustee – (a) after filing such election, finds that the gross value of the property to be administered exceeds the prescribed amount, he shall, as soon as practicable thereafter; or (b) at any time considers it desirable for any reason so to do he may – file in the office of the Registrar a memorandum stating the fact, and revoking such election, and apply for letters of administration or probate, as the case may require. (5) If after filing such election the Public Trustee finds – (a) that the deceased person who was supposed to have died intestate has died testate; or (b) that the document annexed to such election as the testator's last will has been superseded by a later will, or for any reason is of no testamentary validity or effect – he shall, as soon as practicable thereafter, file in the office of the Registrar a memorandum stating the fact and revoking such election; and thereupon such election shall be revoked accordingly, and the Public Trustee shall be at liberty to file a fresh election under this section, and the provisions of this section shall apply to such fresh election as if no previous election had been filed thereunder. (6) A copy of any election filed under this section certified as a correct copy under the seal of the Court shall be equivalent to an exemplification for all purposes. 20A. Administration of small estates (1) Where any person who has property in this State has died, or dies, and the net value of his estate of which the Public Trustee has knowledge does not, in the estimation of the Public Trustee, exceed the prescribed amount, the Public Trustee may, subject to subsection (2) of this section– (a) receive, call in, and convert into money, the property of the estate of that deceased person; (b) pay the debts and other liabilities of that person, of which he has notice; and (c) deal with the residue in all respects as if probate of the will or letters of administration of the estate of the deceased person had been granted to him. (2) Before proceeding in accordance with subsection (1) of this section in any case the Public Trustee shall – (a) be satisfied on such evidence as he considers sufficient – (i) that no application has been lodged in this State for probate of the will or letters of administration; and (ii) that no election under section 10A of the Trustee Companies Act 1953 has been filed – in respect of the estate of the deceased person; and (b) give such notice as he considers sufficient, by advertisement or otherwise, of his intention to so deal with the estate of the deceased person. (3) The Public Trustee is entitled to fees, commissions, charges, and remuneration in any case in which he deals with an estate in accordance with this section to the extent to which he would have been so entitled if probate of the will or letters of administration of the estate of the deceased person had been granted to him, and payment thereof is a first charge on the estate. (4) When complying with subsection (1) of this section the Public Trustee is deemed to be the executor or administrator, as the case may be, of the estate of the deceased person in all respects as if probate or letters of administration had been granted to him by the Court. (5) If, when dealing with an estate in accordance with subsection (1) of this section, the Public Trustee finds that the net value of the estate of the deceased person remaining to be administered exceeds the prescribed amount he shall discontinue his administration of the estate under this section and may proceed as provided by this Act, other than this section, in respect of that part of the estate. (6) Notwithstanding any discontinuation of the administration of an estate of a deceased person by the Public Trustee under subsection (5) of this section, subsection (4) of this section applies to any disposal of any part of that estate in respect of the vesting of property made before such discontinuation. 21. Power of Public Trustee to exercise certain powers pending grant of probate or administration to person entitled thereto (1) Where any person has died, or dies, leaving property in this State, and notwithstanding that some person other than the Public Trustee is appointed executor, or is entitled to letters of administration, the Public Trustee, if he thinks fit, pending the grant of probate or letters of administration, may file in the office of the Registrar an election in writing setting forth that he intends to exercise with respect to the estate of such person all such powers and authorities and do all such acts and things as he might have, exercise, or do, if such person had died intestate, and the Public Trustee had obtained letters of administration of his estate, and thereupon the Public Trustee may exercise such powers and authorities and do such acts and things accordingly. (2) The Public Trustee shall not, in any such case as aforesaid, sell, lease, exchange, mortgage, or partition any portion of the property, other than personal estate of a perishable nature, except by order of the Court made on his application. (3) Before filing an election under this section the Public Trustee shall give notice in writing or by telegram to any person in this State, known to the Public Trustee as a person who would be entitled to obtain probate or letters of administration, and not being an infant or a person of unsound mind, informing such person that he intends so to act unless such person proceeds to apply for probate or letters of administration forthwith. (4) If such person, within twenty-one days after the posting of such notice or the despatching of such telegram to him, does not give notice, in writing or by telegram, to the Public Trustee that he intends to apply for probate or letters of administration, or gives such notice, but fails for fourteen days thereafter to apply for the same, or if he makes such application and it fails, then, unless the Court otherwise orders, the Public Trustee may proceed to exercise any of the powers and authorities given by this section. (5) If more persons than one are entitled to take out probate or letters of administration, it shall be sufficient to give such notice as aforesaid to one of such persons only. (6) Where it is not known to the Public Trustee that there is in this State any person entitled to obtain probate or letters of administration, or in any case of emergency, of which the Public Trustee shall be the sole judge, the Public Trustee may exercise the powers and authorities conferred on him by this section without giving such notice as aforesaid. (7) All expenses incurred by the Public Trustee under this section shall be a first charge upon the property in relation to which the same are incurred. 22. Power of Public Trustee to act with advisory trustee (1) In the administration of any trust the Public Trustee may act with an advisory trustee to the extent hereinafter provided. (2) An advisory trustee may be appointed – (a) by the trust instrument; (b) by order of the Court made on the application of the Public Trustee, or of any beneficiary, or of any person on whose application the Court would have power to appoint a new trustee; (c) by any person having power to appoint a new trustee – and a trustee who appoints the Public Trustee trustee in his place, under the provisions of this Act, may give to the Public Trustee, at the time of such appointment, notice in writing that he proposes to act as advisory trustee, and thereupon such trustee shall be deemed to have been appointed advisory trustee accordingly. (3) Where the Public Trustee acts with an advisory trustee the trust property shall be vested in the Public Trustee, and he shall have the sole management and administration thereof and of its trusts as fully and effectually as if he were the sole trustee. (4) In any such case as aforesaid the Public Trustee may consult the advisory trustee on any matter relating to the trust and the advisory trustee may advise the Public Trustee on any such matter. (5) In case of difference between the Public Trustee and the advisory trustee, either the Public Trustee or the advisory trustee may submit the matter in dispute to the Court, whose decision thereon shall be final, and shall bind both the Public Trustee and the advisory trustee. (6) No person dealing with the Public Trustee shall be concerned to inquire as to the concurrence or otherwise of the advisory trustee in any matter, or be affected by notice of the fact that the advisory trustee has not concurred therein. (7) The power of appointing a new advisory trustee when exercisable by the trustee shall be exercised by the advisory trustee alone, but the Public Trustee shall have power to apply to the Court for the appointment of a new advisory trustee. (8) Subject to the provisions of the trust instrument, an advisory trustee shall receive out of the estate such remuneration as may be prescribed. 23. Custodian trustee The Public Trustee may be appointed as custodian trustee of any trust – (a) by the trust instrument; (b) by order of the Court made on the application of a beneficiary, or of any person on whose application the Court would have power to appoint a new trustee; or (c) by any person having power to appoint a new trustee. 24. Functions and powers of Public Trustee when acting as custodian trustee Where the Public Trustee is appointed as custodian trustee – (a) the trust property shall be vested in the Public Trustee as if he were the sole trustee, and for that purpose vesting orders may, where necessary, be made under the Trustee Act 1898 ; (b) the management of the trust property, and the exercise of all powers and discretions exercisable by the trustees of the trust, shall remain vested in the trustees other than the custodian trustee, who are hereinafter referred to as "the managing trustees"; (c) as between the custodian trustee and the managing trustees, and without prejudice to the rights of any other persons, the custodian trustee shall have the custody of all securities and documents of title relating to the trust, but the managing trustees shall have free access thereto, and be entitled to take copies thereof or extracts therefrom; (d) the sole function of the custodian trustee shall be to get in and hold the trust property, and invest its funds, and dispose of the assets, as the managing trustees in writing direct, and for that purpose he shall execute all such documents and perform all such acts as the managing trustees in writing direct; (e) the direction referred to in paragraph (d) hereof shall mean the direction of both trustees where there are two managing trustees, or of the majority of the managing trustees where there are more than two; (f) the custodian trustee shall not incur any liability by acting on any such direction, but, if he is of opinion that any such direction conflicts with the trusts or is contrary to law, or is otherwise objectionable, he may submit the matter to the Court, whose decision thereon shall be final, and shall bind both the custodian trustee and the managing trustees; (g) the custodian trustee shall not be liable for any act or default of any of the managing trustees; (h) all actions and proceedings touching or concerning the trust shall be brought or defended in the joint names of the custodian trustee and the managing trustees, but the custodian trustee shall be liable for the costs thereof only so far as the trust property in its control shall extend; (i) no person dealing with the custodian trustee shall be concerned to inquire as to the concurrence or otherwise of the managing trustees in any matter, or be affected by notice of the fact that the managing trustees have not concurred therein; (j) the power of appointing a new managing trustee when exercisable by the trustees shall be exercisable by the managing trustees alone, but the custodian trustee shall have power to apply to the Court for the appointment of a new managing trustee; (k) on the application of the custodian trustee, or of any of the managing trustees, or of any beneficiary, and on satisfactory proof that it is the wish of the majority of the beneficiaries or that it is expedient on other grounds to terminate the custodian trusteeship, the Court may make an order for that purpose, and may also make such vesting orders and give such directions as under the circumstances may seem to the Court to be necessary or expedient; (l) in computing the number of managing trustees who may lawfully act or be appointed, neither an advisory trustee nor custodian trustee shall be included. (m) . . . . . . . . 24A. Directors responsible to Court Where the Public Trustee has been granted probate or letters of administration and the Public Trustee is appointed and acts as a trustee, receiver or committee, the directors are individually and collectively in their own persons responsible to the Court, and, in their own persons, are liable, by process of attachment, commitment for contempt, or by other process, to all courts having jurisdiction in that behalf, for the proper discharge of their duties and for obedience to the rules, orders and decrees of those courts in the same manner and to the same extent as if the directors had personally been granted probate or letters of administration or had acted as executor, administrator, trustee, receiver or committee. PART IV - Unclaimed Property 25. Power