Version No. 052 Trustee Companies Act 1984 No. 10168 of 1984




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Version No. 052

Trustee Companies Act 1984

No. 10168 of 1984

Version incorporating amendments as at 11 May 2010


table of provisions

Section Page



Part I—Preliminary 1

1 Short title 1

2 Commencement 1

4 Definitions 2



Part III—Powers of Trustee Companies 10

9 Trustee company may act as executor or administrator 10

10 Authority for trustee company to obtain probate 10

11 Authority for trustee company to obtain letters of administration 11

11A Election by trustee company to administer estate 12

12 Court may act on affidavit of manager etc. 14

13 Appointment as trustee etc. 15

14 Trustee company may be appointed trustee, receiver or guardian of estate 15

15 Trustee company may act under power of attorney 16

16 Trustee company may be appointed to act as temporary executor, administrator or trustee 16

17 Executor or administrator may appoint trustee company 17

18 Application for consent 18

20A Preparation of wills 19

Part V—Administration of Estates 21

25 Trustee company to be subject to same duties as individual 21

26 Trustee company may be removed from office by Supreme Court 21

26A Compulsory transfer determinations 22

26B Exemption from State tax 24

Part VIII—Claims and Distribution 30

43 Refusal of claim 30

44 Power to make distribution if claimants fail to claim 31

Part X—General 34

54 Testators may appoint their own lawyers 35

55 Regulations 36

Part XI—Transitional Provisions 37

56 Regulations of a savings or transitional nature 37

57 Court may review rate of commission 38

58 Order for account and audit of estate 39

59 Order to restrain disposal of shares 39

60 Order for winding up of trustee company 39

61 General transitional provision 40

__________________ 41



SCHEDULES 42

═══════════════ 42



ENDnotes 43

1.General Information 43

2.Table of Amendments 44

3.Explanatory Details 48


Version No. 052

Trustee Companies Act 1984

No. 10168 of 1984

Version incorporating amendments as at 11 May 2010




An Act to re-enact with amendments the law relating to trustee companies, to repeal the Trustee Companies Act 1958 and for other purposes.

BE IT ENACTED by the Queen's Most Excellent Majesty by and with the advice and consent of the Legislative Council and the Legislative Assembly of Victoria in this present Parliament assembled and by the authority of the same as follows (that is to say):

Part I—Preliminary

1 Short title

This Act may be cited as the Trustee Companies Act 1984.

2 Commencement

The several provisions of this Act shall come into operation on a day or the respective days to be fixed by proclamation or successive proclamations of the Governor in Council published in the Government Gazette.



S. 3
repealed by No. 45/1994
s. 42(Sch. item 13.1).


* * * * *
4 Definitions

s. 4

(1) In this Act unless inconsistent with the context or subject-matter—

S. 4(1) def. of bank substituted as authorised deposit-taking institution by No. 11/2001 s. 3(Sch. item 82.1(a)), repealed by No. 17/2010 s. 3(1)(a).

* * * * *


S. 4(1) def. of Commission-er repealed by No. 17/2010 s. 3(1)(a).

* * * * *



S. 4(1) def. of corporation amended by No. 44/2001 s. 3(Sch. item 118.1(a)), repealed by No. 17/2010 s. 3(1)(a).

* * * * *

S. 4(1) def. of domestic partner inserted by No. 27/2001 s. 8(Sch. 6 item 8.1), substituted by No. 12/2008 s. 73(1)(Sch. 1 item 62.1).

domestic partner of a person means—

(a) a person who is in a registered relationship with the person; or

(b) an adult person to whom the person is not married but with whom the person is in a relationship as a couple where one or each of them provides personal or financial commitment and support of a domestic nature for the material benefit of the other, irrespective of their genders and whether or not they are living under the same roof, but does not include a person who provides domestic support and personal care to the person—

(i) for fee or reward; or

(ii) on behalf of another person or an organisation (including a government or government agency, a body corporate or a charitable or benevolent organisation);

estate includes all real and personal property of whatever nature or kind committed to the administration or management of a trustee company;


S. 4(1) def. of financial institution amended by Nos 46/1998
s. 7(Sch. 1), 11/2001 s. 3(Sch. item 82.1(b)), repealed by No. 17/2010 s. 3(1)(a).


* * * * *
gross value means—

(a) in relation to an estate (other than an estate or any part of an estate in relation to which there is a perpetual trust) the aggregate of—



s. 4

(i) the actual amount paid out of an estate in the due course of administration or management from capital for debts, duties, liabilities and administration expenses and to or on behalf of beneficiaries; and
(ii) the amount of the value at the time of distribution or appropriation of any assets distributed or appropriated in specie to any beneficiary without deduction of any liabilities; or

(b) in relation to the whole or part of an estate in relation to which there is a perpetual trust—the value at the time the whole or part of the estate is committed to the trustee company without deduction of any liabilities;



S. 4(1) def. of insurance company repealed by No. 17/2010 s. 3(1)(a).

* * * * *

manager includes acting manager;

managing director includes acting managing director;

S. 4(1) def. of nominee corporation amended by No. 44/2001 s. 3(Sch. item 118.1(a)), substituted by No. 9/2002 s. 3(Sch. item 15.1), repealed by No. 17/2010 s. 3(1)(a).

* * * * *



s. 4

prescribed means prescribed by this Act or the regulations;

S. 4(1) def. of reserve fund amended by No. 76/1988 s. 4, repealed by No. 17/2010 s. 3(1)(a).

* * * * *


S. 4(1) def. of related corporation substituted by No. 44/2001 s. 3(Sch. item 118.1(b)), repealed by No. 17/2010 s. 3(1)(a).

* * * * *


S. 4(1) def. of spouse inserted by No. 27/2001 s. 8(Sch. 6 item 8.1).

spouse of a person means a person to whom the person is married;



S. 4(1) def. of State Trustees inserted by No. 17/2010 s. 3(1)(b).

State Trustees has the same meaning as in the State Trustees (State Owned Company) Act 1994;


S. 4(1) def. of subordinated loan repealed by No. 17/2010 s. 3(1)(a).

* * * * *

s. 4



S. 4(1) def. of
trustee company substituted by No. 17/2010 s. 3(1)(c).


trustee company means—

(a) a licensed trustee company within the meaning of section 601RAA of the Corporations Act; or

(b) State Trustees;


S. 4(1) def. of voting shares amended by No. 44/2001 s. 3(Sch. item 118.1(a)), repealed by No. 17/2010 s. 3(1)(a).

* * * * *

will includes codicil and any other testamentary disposition.

S. 4(2) repealed by No. 17/2010 s. 3(2).

* * * * *



S. 4(3) substituted by No. 44/2001 s. 3(Sch. item 118.2), repealed by No. 17/2010 s. 3(2).

* * * * *

S. 4(4) amended by No. 46/1998
s. 7(Sch. 1), repealed by No. 17/2010 s. 3(2).


* * * * *


S. 4(5) inserted by No. 27/2001 s. 8(Sch. 6 item 8.2), substituted by No. 12/2008 s. 73(1)(Sch. 1 item 62.2).

(5) For the purposes of the definition of domestic partner in subsection (1)—

s. 4

(a) registered relationship has the same meaning as in the Relationships Act 2008; and

(b) in determining whether persons who are not in a registered relationship are domestic partners of each other, all the circumstances of their relationship are to be taken into account, including any one or more of the matters referred to in section 35(2) of the Relationships Act 2008 as may be relevant in a particular case; and

(c) a person is not a domestic partner of another person only because they are co-tenants.


S. 5 amended by Nos 46/1998
s. 7(Sch. 1), 44/2001 s. 3(Sch. items 118.3, 118.4), repealed by No. 17/2010 s. 4.


* * * * *


s. 5

_______________


Pt 2 (Heading and ss 6–8) amended by Nos 76/1988 ss 5, 6, 46/1998 s. 7(Sch. 1), repealed by No. 17/2010 s. 5.

* * * * *

Part III—Powers of Trustee Companies



No. 6402 s. 4.

S. 9
amended by No. 74/2000 s. 3(Sch. 1 item 133).


9 Trustee company may act as executor or administrator

s. 9

Where a trustee company is named either alone or jointly as executor in the will of a testator (whether the will was made before or after the commencement of this section) the trustee company may act as executor, and may apply for and obtain probate of the will of the testator and may perform and discharge all the acts and duties of an executor as fully and effectually as an executor who is a private individual.

No. 6402
ss 6, 7.


10 Authority for trustee company to obtain probate

(1) Where a person is named expressly or by implication as executor and is entitled to obtain probate of the will of a testator, that person may—

(a) instead of applying personally, authorize a trustee company to apply for and obtain probate of the will; or

(b) join with a trustee company in an application for a grant of probate of the will to the person and the trustee company jointly.

(2) An application under subsection (1) may be granted unless the testator has by will expressed the desire that the office of executor is not to be delegated or that the trustee company so applying is not to act in the trusts of the will.


No. 6402
ss 5, 8.


11 Authority for trustee company to obtain letters of administration

(1) In any case in which a person may apply for and obtain a grant of letters of administration of the estate of a deceased person (whether with or without the will annexed), that person may—

(a) join with a trustee company in an application for a grant of letters of administration to the person and the trustee company jointly; or

(b) instead of applying personally, authorize a trustee company to apply for and obtain a grant of letters of administration to the estate.

(2) Where—

(a) a person joins with a trustee company in an application under subsection (1); or



S. 11(2)(b) amended by No. 45/1994 s. 42(Sch. item 13.2).

(b) a trustee company makes an application that it has, pursuant to subsection (1)(b), been authorized to make—
the Supreme Court may grant letters of administration of the estate in accordance with the application.

(3) Where administration of any estate with or without the will annexed is granted to a trustee company either alone or jointly with any other person, that trustee company may do and perform all acts and duties which belong to the office of administrator or administrator with the will annexed, as the case may be, as fully and effectually as an administrator who is a private individual.



S. 11A inserted by No. 84/1991 s. 16.

11A Election by trustee company to administer estate

s. 11A

(1) A trustee company may file an election in the prescribed form to administer an estate in the office of the Registrar if—

(a) no grant of administration has been made to any person; and

(b) the trustee company would be entitled to a grant of administration.

(2) A trustee company may file an election in the prescribed form in accordance with the regulations to administer the estate of a testator in the office of the Registrar if—

(a) no grant of probate of the will or administration with the will annexed has been made to any person; and

(b) the trustee company would be entitled to a grant of probate of the will or of administration with the will annexed.

(3) The filing of an election is to be taken to be the grant of administration or probate to the trustee company.

(4) This section applies to an estate the gross value of which is estimated by the trustee company at the time of the election not to exceed $50 000.



s. 11A

(5) An election cannot be filed—

(a) if there is in force a caveat against any application for probate or administration lodged with the Registrar; and

(b) until the expiry of 14 days after the publication in a daily newspaper circulating generally throughout Victoria of a notice of intention to file the election; and

(c) unless there is attached an inventory of the estate.

(6) Within one month of the filing of an election the trustee company must publish notice of the election in a daily newspaper circulating generally throughout Victoria.

(7) A notice of election is conclusive evidence that the trustee company is entitled to administer the estate to which the election relates.

(8) Even though an election has been filed any person may apply to the Court for a grant of probate or administration.

(9) The Court may grant an application on any terms and conditions the Court thinks fit and may revoke the election.

(10) If after filing an election the gross value of the property to be administered is found to exceed the sum of $60 000 the trustee company must as soon as practicable file with the Registrar a memorandum stating the fact and apply in the same manner as any other person for a grant of probate or administration (as the case requires).

(11) A trustee company must file a revocation of an election in the office of the Registrar if the trustee company finds that—

(a) the deceased who was believed to have died intestate has died leaving a will; or

(b) the document annexed to the election as the testator's last will has been revoked by a later will; or

(c) the document annexed to the election has no testamentary validity because the deceased died intestate.

(12) In this section, Registrar means the Registrar of Probates and Administration of the Court.



No. 6402 s. 9.

12 Court may act on affidavit of manager etc.

s. 12

In all cases in which a trustee company is empowered by this Act or any other Act to apply for probate of a will or for letters of administration in respect of the estate of a deceased person, the Supreme Court may receive and act upon an affidavit made by the managing director, manager, district manager, assistant manager, secretary or such other officer of the trustee company as may from time to time be appointed by the board of directors of the trustee company for that purpose in place of any affidavit required by any Act or rule of the Supreme Court to be made by persons making application for probate or for letters of administration.

No. 6402 s. 10.

13 Appointment as trustee etc.

S. 13(1) amended by No. 17/2010 s. 6(1).

s. 13

(1) Where probate or letters of administration are granted to a trustee company, the capital, and all other assets of the trustee company shall be liable for the proper administration of the estate committed to the trustee company.

S. 13(2) repealed by No. 17/2010 s. 6(2).

* * * * *



No. 6402 s. 11.

14 Trustee company may be appointed trustee, receiver or guardian of estate

S. 14(1) substituted by No. 59/1986 s. 143(2).

(1) Where a court, judge or other person has power to appoint a person as—

(a) trustee;

(b) guardian of a minor; or

(c) sole guarantor or surety for a person appointed as trustee or guardian—

a trustee company may be so appointed and may continue to act until removed from office.


S. 14(2) amended by Nos 59/1986 s. 143(2), 52/1998
s. 311(Sch. 1 item 99.1).


(2) Where a trustee company is appointed to an office referred to in subsection (1) or as an administrator under the Guardianship and Administration Act 1986, the capital of the trustee company and all other assets of the trustee company shall be liable for the proper discharge of the duties committed to the trustee company and that liability shall be deemed sufficient security for the discharge of those duties in place of the bond required from private persons when appointed as trustee, guardian, administrator, guarantor or surety.

No. 6402 s. 12.

15 Trustee company may act under power of attorney

s. 15

S. 15(1) amended by No. 76/1988 s. 7.

(1) It shall be lawful for a trustee company to act under any power of attorney by which the trustee company is appointed attorney by any person, and all the powers conferred upon the trustee company by any such power of attorney may be exercised and carried into execution by such officers of the trustee company as it determines.

(2) The capital and all other assets of a trustee company shall be liable for the due execution of the powers conferred by subsection (1) upon the trustee company.

(3) This section does not authorize any person to confer any power upon a trustee company which cannot be legally conferred upon a private individual.


No. 6402 s. 13.

16 Trustee company may be appointed to act as temporary executor, administrator or trustee

An executor, administrator or trustee may appoint a trustee company to act as executor, administrator or trustee, and a trustee company, if so appointed by power of attorney, may act within the scope of the authority conferred upon it as effectually as the executor, administrator or trustee could have acted and may exercise all discretionary and other powers delegated by the principal as fully as the principal could have exercised them.




No. 6402 s. 14.

17 Executor or administrator may appoint trustee company

s. 17

S. 17(1) amended by No. 59/1986 s. 143(2).

(1) It shall be lawful—

(a) for an executor or administrator acting under any probate or letters of administration, whether granted before or after the commencement of this section;

(b) for a trustee;


S. 17(1)(c) substituted by Nos 59/1986 s. 143(2), 52/1998
s. 311(Sch. 1 item 99.2).


(c) with the consent of the Victorian Civil and Administrative Tribunal, for an administrator appointed under the Guardianship and Administration Act 1986; or


S. 17(1)(d) substituted by No. 59/1986 s. 143(2).

(d) with the consent of the Supreme Court, for the guardian of a minor—
to appoint a trustee company to perform and discharge all the acts and duties of the executor, administrator, trustee or guardian and the trustee company shall have power to perform and discharge those acts and duties.

(2) Where a trustee company is appointed under subsection (1)—

(a) the capital and all other assets of the trustee company shall be liable for the proper discharge of the duties referred to in subsection (1);


S. 17(2)(b) amended by No. 59/1986 s. 143(2).

(b) the executor, administrator, trustee or guardian that appointed the trustee company shall be released from liability in respect of all acts done, or omitted to be done, by the trustee company acting under that appointment.


No. 6402 s. 15.

18 Application for consent

s. 18

(1) An application may be made to the Supreme Court for consent under section 17.

(2) Notice of an intended application shall be advertised seven days before the making of the application in a daily newspaper circulating generally in Victoria.

(3) The Supreme Court may require any person resident in Victoria and entitled to the immediate receipt of any of the income or corpus of the estate in respect of which the application is made to be served with notice of the intended application.

(4) The costs of the application shall be in the discretion of the Supreme Court and may be ordered to be paid out of the estate.

(5) The consent of the Supreme Court shall not be given in the case of a will in which the testator has expressed the wish that the trusts should not be delegated or that a trustee company should not act.


S. 19 amended by No. 59/1986 s. 143(2), repealed by No. 17/2010 s. 7.

* * * * *


S. 20 repealed by No. 17/2010 s. 7.

* * * * *



S. 20A inserted by No. 84/1991 s. 17, amended by Nos 35/1996
s. 453(Sch. 1 item 86.1(a)
(b)), 102/1997 s. 49(Sch.
item 7), substituted by No. 18/2005 s. 18(Sch. 1 item 110.1).


20A Preparation of wills

s. 20A

Despite anything to the contrary in the Legal Profession Act 2004, a trustee company may prepare wills and charge a fee and recover disbursements for will preparation and other related services, if the wills are prepared under the direction and control of an Australian legal practitioner within the meaning of that Act.

_______________



Pt 4 (Heading and ss 21–24) amended by Nos 59/1986 s. 143(2), 110/1986 s. 140(2), 76/1988 ss 8, 9, 45/1994 s. 42(Sch. item 13.3), 104/1995 s. 7, 52/1998
s. 311(Sch. 1 item 99.3), 24/2000 s. 20(1)(2), repealed by No. 17/2010 s. 8.


* * * * *

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