PUBLIC TRUSTEE. Sher title. Commence- ment. Division of Act. 5 GEO. Vi., No. XXVI. No. 26 of 1941. AN ACT relating to the appointment of a public trustee, and the powers and duties thereof, and for other purposes. [Assented to Sth December, 1941.] B E it enacted by the King's Most Excellent Majesty, by and with the advice and consent of the Legis- lative Council and Legislative Assembly of Western Australia, in this present Parliament assembled, and by the authority of the same, as follows:- 1. (1) This Act may be cited as the Public Trustee Act, 1941. (2) This Act shall come into operation on a day (here- inafter referred to as the "appointed day") to be fixed by proclamation. (3) This Act is divided into Parts and Divisions as follows :- PART I.-THE PUBLIC TRUSTEE : SS. 4-6. PART II.-POWERS AND DUTIES OF PUBLIC TRUSTEE : SS. 7-37. Division (1).—General, s. 7. Division (2).—Public Trustee as Executor or Administrator : ss. 8-19.
Transcript
PUBLIC TRUSTEE.
Sher title.
Commence-ment.
Division ofAct.
5 GEO. Vi., No. XXVI.
No. 26 of 1941.
AN ACT relating to the appointment of a publictrustee, and the powers and duties thereof, and forother purposes.
[Assented to Sth December, 1941.]
BE it enacted by the King's Most Excellent Majesty, by and with the advice and consent of the Legis-
lative Council and Legislative Assembly of WesternAustralia, in this present Parliament assembled, and bythe authority of the same, as follows:-
1. (1) This Act may be cited as the Public TrusteeAct, 1941.
(2) This Act shall come into operation on a day (here-inafter referred to as the "appointed day") to be fixedby proclamation.
(3) This Act is divided into Parts and Divisions asfollows :-
PART I.-THE PUBLIC TRUSTEE : SS. 4-6.PART II.-POWERS AND DUTIES OF PUBLIC
TRUSTEE : SS. 7-37.Division (1).—General, s. 7.Division (2).—Public Trustee as Executor or
Administrator : ss. 8-19.
19411 Public Trustee. [No. 26.
Division (3).--Public Trustee as Trustee : ss.20-23.
Division (4).—Powers and Duties of PublicTrustee with respect to Estates of InsanePatients and Incapable Persons : ss. 24-36.
Division (5).—Powers and Duties of PublicTrustee with respect to Persons under Dis-ability and others in certain Cases : s. 37.
PART III.-FINANCTA T, : SS. 38-48.
PART IV.-GENERAL : SS. 49-65.
2. In this Act, unless inconsistent with the context or Interpretation.subject matter— •
"Court" means the Supreme Court of Western Court.
Australia or a judge thereof and includes theMaster when exercising the powers of the Courtpursuant to the Administration Act, 1903-1939,or Probate and Administration Rules.
"Curator" means the Curator of Intestate Estates Curator.
constituted under the Curator of IntestateEstates Act, 1918.
"Estate" or "estates" means any real or personal Estate.
property under administration or held, managed,or controlled by the Public Trustee in anycapacity whatsoever.
"Income" includes rents and profits. Income.
"Insane patient" means an insane patient within the Insanemeaning of the Lunacy Act. Patient
"Incapable person" includes an incapable person Incapable
within the meaning of the Lunacy Act; a person person.
deemed to be incapable under the Mental Treat-ment Act, 1917, and a person certified as incap-able under the provisions of section six of theMental Treatment Act, 1927-1940.
"Lunacy Act" means the Lunacy Act, 1903-1920, Lunacy Act,
and any Act amending that Act."Master" means the Master of the Supreme Court, Master.
and includes the Deputy Master."Mental Treatment Act, 1917," means the mental ,I,tenttaint t
Treatment Act, 1917 (No. 9 of 1917), as amended Acta 183k
by the Mental Treatment Act Amendment Act,1919 (No. 16 of 1919).
Minister.
No. 26.] Public Trustee. [1941.
"Minister" means the Minister of the Crown chargedfor the time being with the administration ofthis Act.
"Official Trustee" means the Official Trusteeappointed under the Official Trustee Act, 1921.
"Patient" means insane patient."Public Trustee" means the Public Trustee under
this Act and includes the acting Public Trustee."Regulations" means regulations made under the
authority of this Act."Rules" means rules of court made under the
authority of this Act."Will" includes codicil.
3. (1) Subject to and for the purposes of this Act,as and from the appointed day
(a) The offices of Curator of Intestate Estates andOfficial Trustee shall be abolished and theCurator of Intestate Estates and the OfficialTrustee in office immediately before the ap-pointed day shall go out of office as such.
(b) The Public Trustee shall be deemed to be thesuccessor in law-
(i) of the Curator of Intestate Estates ;(ii) of the Official Trustee.
(c) All property immediately before the appointedday vested in or held by the Curator or theOfficial Trustee shall, by virtue of this Act,be transferred to and vested in or held by thePublic Trustee.
(d) Without affecting the generality of the fore-going provisions of this section-
(i) all estates and property of deceasedpersons left nnadministered by the Curatorimmediately before the appointed day shall beadministered by the Public Trustee, who shallbecome entitled to the possession thereof andof all books, accounts, letters, papers, anddocuments of every description used by orin the possession of or under the control ofthe Curator immediately before the appointedday; and
OfficialTrustee.
Patient.
Public Trustee.
Regulations.
Rules.
Will.
Public Trusteeto be sueees-tsor in law ofCurator ofIntestateEstates andthe OfficialTrustee.
1941.] Public Trustee. [No. 26.
(ii) the Public Trustee shall become entitledto the possession of all estates and propertyvested in or held by the Official Trustee orwhich he is empowered to take care of, collect,protect, administer or manage, and moneyswhich the Official Trustee is empowered toinvest, and of all books, accounts, letters,papers, and documents of every descriptionused by or in the possession or under thecontrol of the Official Trustee immediatelybefore the appointed day.
(e) Any reference in any Act, regulation, rule ofcourt, order or document to either the Curatoror the Official Trustee shall, unless incon-sistent with the context or subject matter bedeemed and be taken to refer to and mean thePublic Trustee.
(f) Any proceeding, application, or cause of actionbefore the appointed day commenced, initiated,pending, or existing by or against the Curatoror the Official Trustee shall not abate, be dis-continued, or be in any way prejudiciallyaffected by reason of anything in this Actbut may be continued, prosecuted, and en-forced by or against the Public Trustee as itmight have been by or against the Curator orthe Official Trustee if this Act had not beenpassed, but not further or otherwise.
(g) Subject to the foregoing provisions ofsection, any order to administer granted toor on an application initiated by the Curatorshall have effect for all purposes as if this Acthad not been passed; and
(h) All Acts, matters, and things of a continuingnature lawfully made, done, or commencedbefore the appointed day by or on behalf ofthe Curator or the Official Trustee shall bedeemed to have been made, done, or com-menced by or on behalf of the Public Trustee.
(2) Without affecting the generality of the foregoingprovisions of this section, the Acts set out in the FirstSchedule to the extent to which the same are in and bythe said Schedule expressed to be repealed or amendedare hereby repealed or amended accordingly.
Repeals endamendments.FirstSchedule.
Public TrustOffice andPublicTrustee.
W.A. 1921,No. 8, s. 2;N.Z., 1908, No.159, ss. 3 and4;Tas., 1930,No. 61, s. 4 ;
Acting PublicTrustee.
Appointmentof Officers.
No. 26.] Public Trustee. [1941.
PART I.-THE PUBLIC TRUSTEE.
4. (1) There shall be an office called the "PublicTrust Office," administered by an officer called the PublicTrustee who, subject to the Public Service Act, shall beappointed by the Governor, and shall have and exercisesuch powers and execute and dischar ge such duties asmay be vested in or imposed on him pursuant to the pro-visions herein set forth.
(2) The Public Trustee and his successors in officeshall be and continue to be a body corporate, under thename of the "Public Trustee," and shall by that namehave perpetual succession and a common seal, and be cap-able in law of suing and being sued and of holding anddisposing of real and personal property.
5. (1) The Governor in Council may appoint an act-ing Public Trustee to discharge the duties of the PublicTrustee during the illness or absence of the PublicTrustee.
(2) The acting Public Trustee may, during the periodof his appointment, act in the stead of the Public Trustee,and sign and execute all such documents as require signa-ture or execution and do, perform, and discharge allother acts, deeds, and duties pertaining to the office ofPublic Trustee.
(3) Every court shall take judicial notice of the ap-pointment of the Public Trustee and the acting PublicTrustee, their signatures and the seal of the PublicTrustee.
6. The Governor in Council may, subject to the PublicService Act, appoint such officers, clerks and persons ashe thinks fit to assist the Public Trustee in his duties.
PART II.-POWERS AND DUTIES OF PUBLICTRUSTEE.
Division (1)—General.7. (1) Where the Crown, the Governor in Council, a
public officer, a court, a judge, a public or private cor-porate body, or any person within or outside -WesternAustralia, now or hereafter can appoint a trustee,executor, administrator, guardian, next friend, coin-
mittee, manager, receiver, agent or attorney, any of suchappointments may be made of the Public Trustee.
(2) Subject to this Act the powers, duties, immunities,and rights of the Public Trustee under any such appoint-ment shall be the same as if the appointment had beenof a private person.
Division (2)—Public Trustee as Executor orAdministrator.
8. Whenever the Public Trustee has been or shall be rtittentnamed as executor in the last will and testament or in T rxeuesleasrany codicil thereto of any testator, it shall be lawful for ?[Tie., lt,the Public Trustee to act as executor, and to apply for 9 465and obtain probate, and to perform and to discharge allthe acts and duties of an executor as fully and effectuallyas any other executor.
9. Upon the death of any person, and until probate or penbaitneg
administration is granted in respect of his estate, the administrationreal and personal estate of such deceased person shall ,etasteedoto :est
be deemed to vest in the Public Trustee, but without any iTrttitbecharge being leviable therefor. Any estate or property M.Ajb s3022;at the commencement of this Act vested in the Chief 210915,Justice under the provisions of section twenty-twoof the Administration Act, 1903-1939, or any correspond-ing previous enactment, shall, by virtue of this Act, vestin the Public. Trustee.
10. (1) Where any person has heretofore died or here- Public Trustee
after dies, or is reasonably supposed to have died testate 774,TYr."or intestate in or out of Western Australia,
leaving arewaortipeeersense?
property in Western Au stralia, the Court may, on the on
application of the Public Trustee, grant to the Public Vavak. 9,Trustee an order to administer the estate of such S. 6.deceased person in any of the following cases :—
(a) where such person leaves no executor, widow,husband, beneficiary or next of kin residentwithin the jurisdiction and willing and capableof acting in execution of his or her will oradministration of his or her estate;
(b) where the executor renounces probate of thewill of the deceased and all the personsprimarily entitled to administration by writingfiled with the Master decline to apply foradministration ;
No. 26.] Public Trustee. [1941.
(c) where probate or administration is not appliedfor within six months after the death ofsuch person;
(d) where, after the expiration of sixty days fromsuch death, there appears to the Court to beno reasonable possibility of application beingmade within such period as aforesaid;
(e) where the estate or any portion thereof isunprotected or liable to waste and the executoror widow, husband or next of kin is absentfrom the locality of the estate or of such por-tion thereof or is not known or has not beenfound;
(f) where the estate or any substantial portionthereof is of a perishable nature or is in dangerof being lost or destroyed.
(g) in any other case where the Court considers itexpedient or proper.
(2) The Court may in any case require the PublicTrustee to give such notices or cite such persons or pro-duce such evidence as it may think fit before grantingthe order applied for, and may make the order subjectto restrictions or conditions, or, in cases coming withinthe provisions of paragraph (e) or (f) of subsection (1)of this section make a temporary order only, or onelimited to a portion of the estate.
(3) A grant under this section shall, subject to thisAct and to any restrictions which the Court may impose,give to the Public Trustee the same powers, rights andobligations in respect of the estate concerned as he wouldhave under letters of administration. Subject to theprovisions of this Act, all laws now or hereafter in forcein reference to the administration of estates of deceasedpersons shall apply to the administration of estates bythe Public Trustee and the estate of the deceased shallvest in the Public Trustee.
Public Trustee 11. The Public Trustee shall be entitled to a grant ofto be prole/ redto creditor as administration of the estate of a deceased person in pre-adm
ceirntiasitnrat"' ference to any creditor applying in that capacity for ad-
eases.Vie., 1939, ministration thereof, unless the creditor proves to theNo. 4654, satisfaction of the Court or the Master that it will be mores. 12.
beneficial to the estate that it should be administered bysuch creditor.
1941.] Public Trustee. [No. 26.
12. (1) Any person or the majority of the persons riluabyuebeztaupstee
entitled to obtain administration (with the will of any Ey.; netxeedeuttoona c
testator annexed) of the estate of such testator, may 7rnadorasibuinis-
authorise the Public Trustee to apply to the Court for N.z., 1903,. No.
and obtain administration (with the will annexed) of Pat 3934;No. 61, s. 15 ;the estate. QId., 1915,s. 29.
(2) Any person or a majority of the persons namedexpressly or by implication as executor in any will may,unless expressly prohibited by the will, authorise thePublic Trustee to apply to the Court for administration(with the will annexed) of the estate.
(3) Any person or a majority of the persons entitledto obtain administration of the estate of any intestatemay authorise the Public Trustee to apply to the Courtfor administration of the estate.
(4) Any executor who has obtained probate, or any Tamentrtra°!
administrator who has obtained letters of administration,notwithstanding that he has acted in the administration N.S.W. 1918i8
of the deceased's estate may, with the consent of thePublic Trustee, and after an account of all receipts anddisbursements made by such executor or administratorin relation to the estate of the deceased up to the dateof such application has been filed and passed by theMaster, apply to the Court for an order transferringsuch estate to the Public Trustee for administration.
(5) Administration under any of the preceding sub-sections may be granted, upon application to the Courtby the Public Trustee.
(6) Where there are more executors or administra-tors than one, all, or the majority of such executors oradministrators, may apply to the Court or a judge thereofto have the Public Trustee appointed sole executor oradministrator on the grounds that the interests of theestate would be benefited by such appointment.
(7) All applications to the Court, or a judge thereof,under this section may be brought in such manner asmay be prescribed by rules made under this Act, andthe court or judge may, and is hereby given jurisdictionto make such order as it or he thinks fit.
(8) Where to the appointment of any executor oradministrator the consent of any person is required, andany such person refuses to consent to the Public Trustee
being appointed, or where the person to consent is an in-fant, idiot, or lunatic, or of unsound mind or absentfrom Western Australia, or has any other disability, thenthe appointment of the Public Trustee may be madewithout such consent, if a judge of the Supreme Court soorders.
Applications under this section shall be grounded uponaffidavit stating any circumstances from which it appearsthat it would be beneficial to any person who is or maybe interested in such estate, or that the due and properadministration of the estate requires that the executoror administrator should be removed, and that such estateshould be administered by the Public Trustee.
(2) Upon the making of any order under the pre-ceding subsection the Court may order that any admin-istration bond entered into by the administrator shallbe assigned to the Public Trustee ; and the PublicTrustee shall thereupon be entitled to sue on thesaid bond in his own name as if the same had been origin-ally given to him, and shall be entitled to recover thereonas trustee for all persons interested in the full amountrecoverable in respect of any breach of the condition ofthe said bond.
(3) Where the Public Trustee is appointed executoror administrator under this or the last preceding sectionthe property, rights, powers, authorities, functions, anddiscretions vested in and the liabilities properly incurredin the due administration of the estate by the originalexecutor or administrator, as the case may be, shall uponsuch appointment and without any conveyance, transfer,or assignment become and be vested in and transferredto the Public Trustee, who shall have the same privileges,rights, powers, duties, discretions, and liabilities as ifprobate or administration had been granted to himoriginally.
Application 13. (1) In any case in which probate or administra-tor removalonfd meIeicsu. tor or Lion of the estate of any deceased person has been grantedter= of dan ffor to any person, the Public Trustee, or any personadministra- interested, may apply to the Court for an order for thelion by thePublicTrustee. removal of such executor or administrator, and for admin-(41d. 1915, istration by the Public Trustee of the land or goods ors. 35 ;vie., 1939, estate left unadministered.No. 4654,s. 13.
1941.] Public Trustee. [No. 26.
14. (1) Where any person has heretofore died or Nerueftittrr
hereafter dies intestate, in or out of Western Australia, ceseterungtea
leaving property in Western Australia the gross value two itatiVrislie7.
of which as estimated by the Public Trustee does not at Tas., 1930,
the time of the election hereinafter mentioned exceed five g%Alr:hundred pounds and no person within three months of it 19' s'the death of the deceased has taken out administration inWestern Australia, the Public Trustee may, in all caseswhere he is entitled to, apply for an order to administer,in lieu of obtaining such order, file in the office of thecourt an election in writing setting forth the name, resi-dence, and occupation (so far as then known to him) ofthe intestate, and the value of the property of theintestate as then known, and electing to administer.
(2) On such election being filed the Public Trusteeshall be deemed to be administrator of the whole propertyof the deceased person in all respects as if a grant ofletters of administration had been regularly granted tohim.
(3) He shall publish in the Gazette a notice that hehas made such election, and such notice shall be con-clusive evidence that he is rightfully entitled to adminis-ter.
(4) If after filing such election the gross value of theproperty to be administered is found to exceed the sum offive hundred pounds, the Public Trustee shall, as soon aspracticable thereafter, file in the office of the court amemorandum under his hand stating the fact, and pro-ceed in the ordinary manner to obtain an order for theadministration of the estate.
(5) If after filing such election the Public Trusteefinds that the deceased person who was supposed to havedied intestate has died testate the Public Trustee shall,as soon as practicable, file in the office of the court amemorandum under his hand stating the facts and revok-ing such election; whereupon such election shall bedeemed to have been revoked accordingly, and the PublicTrustee shall file with the Master his accounts of alltransactions in the matter of the estate of such deceasedperson.
Public Trustee
15. Where the Public Trustee obtains a grant of oluede-ceased forpro
bate or administration under this Act, he shall be
deemed to be the successor of the deceased for thepur_ pwtuposele9.18,
pose of the Licensing Act, 1911-1934, and may in a proper M . 9' s.
No. 26.] Public Trustee. [1941.
case, with the consent of the Licensing Court, enter byhimself or his agent on and become the licensee of anylicensed premises of which the deceased was licensee orthe Public Trustee is owner within the meaning of thatAct.
Power toPublic Trusteeto pay overbalance toproper officerof deceased'sdomicile.of. W.A.1918, No. 9,ss. 18 and 19.
16. (1) (a) When the Public Trustee has been grantedprobate of the will or administration of the estate inWestern Australia of any person who was at the time ofhis death domiciled in a State or Territory of the Com-monwealth of Australia other than Western Australia,or in the Dominion of New Zealand, and whose estate insuch State, Territory, or Dominion is being administeredby executor or executors or administrator or administra-tors, or the proper officer of such State, Territory, orDominion, the Public Trustee may pay or cause to bepaid to such executor or executors or administrator oradministrators, or proper officer the balance of the estate,after payment of creditors and the fees and chargesprovided for in this Act without seeing to the applica-tion of such balance and without incurring any liabilityin regard to such payment to such executor or executorsor administrator or administrators, or proper officer.
(b) Where any moneys or personal chattels are pay-able or deliverable by the Public Trustee to the subjectof any country out of His Majesty's jurisdiction, the Min-ister may authorise the Public Trustee to pay or deliverthe same to the proper officer of that country or to thechief consular officer for that country in Western Aus-tralia on behalf of the person entitled and the receiptof such proper officer or consular officer shall be a suffi-cient discharge therefor to the Public Trustee who shallnot be further concerned to see to the application thereof.
Where de- (2) (a) When the proper officer of any State or Terri-ceased domi-ciled in tory of the Commonwealth of Australia, other than Wes-Western AF-trans power tern Australia, or of the Dominion of New Zealand, is into PublicTrustee to re . such State, Territory, or Dominion administering thefro
balancefrom proper estate of any deceased person, and the Public Trusteeofficer of an-other State, has been granted probate of the will or administrationete.
of the estate in Western Australia of such deceased per-son, if the deceased at the time of his death was domi-ciled in Western Australia, the Public Trustee mayreceive from such proper officer the balance of the estateof the deceased in such State, Territory, or Dominion.
1941.] Public Trustee. [No. 26.
(b) Such balance shall, when so received, form part ofthe estate of the deceased and shall be dealt with accord-ing to the law of Western Australia.
(3) In this section— Interpretation.
"Proper officer" includes Public Trustee or Public "Properofficer:"Curator or other officer discharging dutiescorresponding to those discharged in WesternAustralia by the Public Trustee.
"Territory" includes mandated territory adminis- "Territory."tered by the Commonwealth of Australia.
17. If it appears that any property vested in the Eres%TetaPublic Trustee has escheated to the Crown, the Public to
shall report the facts to the Crown Solicitor, whomay then make all necessary applications provided forin the Escheat (Procedure) Act, 1940.
18. Where the net amount payable to any infant out Puna,,F,ittthof the residue of any intestate estate of which administra- ditibu:.oftion has been granted to the Public Trustee is under oneinthundred pounds, he may pay or cause to be paid the awheree:ict
distributive share, to which such infant is entitled, to the under £100widow, or to any person having the care or custody of lz..115990,3'such infant, without seeing to the application thereof, 5cile2.,31939,and without incurring any liability in respect of suchpayment.
19. (1) Every estate in respect of which probate or Duty
administration is granted to the Public Trustee shall be nYlbstearmin-liable to pay the same duty as would be payable in re- itebrrieed,gistes.spect of such estate under the Administration Act ifprobate or administration in respect thereof were grantedto a person other than the Public Trustee.
(2) The provisions of sections 64 (3) and 116 of theAdministration Act, 1903-1939, shall not apply to estatesadministered by the Public Trustee.
Division (3)—Public Trustee as Trustee.
20. Notwithstanding anything in ally Act, or the aPsuluiestTeletustee
terms of any trust, as to the number of trustees, the I ae. 1939,kePublic Trustee may unless expressly prohibited by the s. '20;N.S.W. 1913,terms of the trust, be appointed or become trustee. No. 19 s. 13.
21. (1) In the administration of any trust estate astrustee thereof the Public Trustee may act with an ad-visory trustee or advisory trustees to the extent hereinprovided.
(2) An advisory trustee or advisory trustees may beappointed
(a) by order of the court made on the applicationof any beneficiary or of any person on whoseapplication the court would have power toappoint a new trustee;
(b) by the trust instrument ; or
(c) by any person having power to appoint newtrustees.
(3) No such advisory trustee shall be liable as suchfor any act or thing done by the Public Trustee, whetherwith or without the advice of any such advisory trustee.
(4) Where the Public Trustee acts with advisorytrustees the trust property shall be vested in the PublicTrustee, and he shall have the sole management and ad-ministration of the estate and its trusts as fully andeffectually as if he were the sole trustee :
Provided that
(a) the Public Trustee may consult the advisorytrustees on any matter relating to the trustsor the estate; and
(b) the advisory trustees may advise the PublicTrustee on any matter relating to the trustsor the estate.
(5) In cases of difference between the Public Trusteeand the advisory trustees, either the Public Trustee orthe advisory trustees may submit the matter in disputein a summary manner to a judge of the court in chambers,whose decision thereon shall be final, and shall bind boththe Public Trustee and the advisory trustees.
(6) No person dealing with the Public Trustee shallbe concerned to inquire as to the concurrence or otherwiseof the advisory trustees, or be affected by notice of thefact that the advisory trustees have not concurred.
(7) The power of appointing a new advisory trustee,when exercisable by the continuing advisory trustees,
1941.] Public Trustee. [No. 26.
shall be exercised by them alone, but the Public Trusteeshall have the same power of applying to the court forthe appointment of a new advisory trustee as is pos-sessed by any other person.
(8) The regulations may provide for the remunera-tion subject to the provisions of the trust instrument(if any), of advisory trustees out of the estate.
22. (1) The Public Trustee may , whether or not the ?,„"stgl."number of trustees has been reduced below the original sQ% 1915•
number, be appointed to be custodian trustee of any T s, '190No. 61, s
,. 23
trust— Vic., 1939,No. 4654,
(a) by order of the court made on the application s. 22.
of any beneficiary or of any person on whoseapplication the court may order the appoint-ment of a new trustee;
(b) by the trust instrument; or(c) by any person having the power to appoint new
trustees.
(2) Upon such appointment(a) the trust property shall be transferred to the
custodian trustee as if he were sole trustee,and for that purpose vesting orders may,where necessary, be made by the court;
(b) the management of the trust property and theexercise of any power or discretion exercis-able by the trustees under the trust shall re-main vested in the trustees other than thecustodian trustee (which trustees are herein-after referred to as the managing trustees);
(c) as between the custodian trustee and the manag-ing trustees, and subject, and without pre-judice to the rights of any other persons, thecustodian trustee shall have the custody ofall securities and documents of title relatingto the trust property, but the managingtrustees shall have free access thereto and beentitled to take copies thereof or extractstherefrom;
(d) the custodian trustee shall concur in and per-form all acts necessary to enable the managing
No. 26.] Public Trustee. [1941.
trustees to exercise their powers of manage-ment, or any other power or discretion vestedin them (including the power to pay moneyor securities into court), unless the matterin which he is requested to concur is a breachof trust or involves a personal liability uponhim in respect of calls or otherwise, but, unlesshe so concurs, the custodian trustee shall notbe liable for any act or default on the part ofthe managing trustees or any of them;
(e) all sums payable to or out of the income or capi-tal of the trust property shall be paid to orby the custodian trustee : Provided that thecustodian trustee may allow the dividends andother income derived from the trust propertyto be paid to the managing trustees, or to suchperson as they direct, or into such bank to thecredit of such person as they direct, and insuch case shall be exonerated from seeing tothe application thereof and shall not beanswerable for any loss or misapplicationthereof ;
(f) the power+ of appointing new trustees, whenexercisable by the trustees, shall be exercis-able by the managing trustees alone, but thecustodian trustee shall have the same powerof applying to the court for the appointmentof a new trustee as any other trustee ;
(g) the custodian trustee, if he acts in good faith,shall not be liable for accepting as correct andacting upon the faith of any written statementby the managing trustees as to any birth,death, marriage or ether matter of pedigreeor relationship or other matter of fact uponwhich the title to the trust property or anypart thereof may depend, nor for acting uponany legal advice obtained by the managingtrustees independently of the custodiantrustee ;
(h) the court, on the application of either the custo-dian trustee or of any of the managingtrustees, or of any beneficiary, to terminatethe custodian trusteeship, and on proof to its
1941.] Public Trustee. [No. 26.
satisfaction that it is the general wish of thebeneficiaries or that on other grounds it isexpedient that the custodian trusteeshipshould be terminated, may make an order forthat purpose, and the court may thereuponmake such vesting orders and give such direc-tions as under the circumstances seem to thecourt to be necessary or expedient;
(i) in cases of difference between the custodiantrustee and the managing trustees, either thecustodian trustee or the managing trusteesmay submit the matter in dispute in a sum-mary manner to a judge of the court in cham-bers, whose decision thereon shall be final andshall bind both the custodian trustee and themanaging trustees.
23. In addition to any other powers conferred by thisAct, the Public Trustee shall have and may exercise allrights, powers, and authorities conferred upon, and mayavail himself of all defences open to, trustees under theprovisions of the Trustee Act, 1900, the Trustees' PowersAct, 1931, or of any other Act.
Public Trusteemay exercisepowers underTrustee Act.
Division (4)—Powers and Duties of Public Trustee, withrespect to Estates of Insane Patients and Incapable
Persons.
24. (1) The Public Trustee shall have the manage-;Public Trusteement and care of theproperty of every insane patient, r,,,Ithestraetserotf
and shall have allpowers and ditties necessary and pilot:Ls and
incident to such management and care, incapablepersons.W.A., 1903,
(2) The Public Trustee may, if he consents to the appli- c's1..kr,18621rcation, be appointed under the provisions of section one Nand Rules3.s
hundred and eleven of the Lunacy Act to undertake themanagement and care of the property of any incapableperson as defined in this Act.
(3) The Public Trustee shall manage and care forany property in accordance with the provisions of thisAct.
(4) This section shall not apply in the case of anyinsane patient or incapable person
(a) of whose estate a committee has been appointedunder the Lunacy Act or for the managementof whose property a person has been appointedunder section one hundred and eleven of thesaid Act; or
(b) whose property is vested in a Curator orCurators under or by virtue of chapter[AVM., section six hundred and eighty-four,of the Criminal Code.
25. Where any person has, on the trial of any in-formation, been acquitted on the ground of insanity, orhas, upon arraignment upon a criminal charge, beenfound to be insane, the sheriff shall report the fact tothe Public Trustee, who shall thereupon make inquiryrespecting the property of such person, and the courtmay on application by the Public Trustee, on being satis-fied of the continued insanity of such person and of hisbeing still in confinement, make any orders with respectto the property of such person, and the applicationthereof, for the payment of his debts or for his mainten-ance or benefit, or that of his family, or for carrying onhis trade or business.
W.A., 1 903,No. 15, an insane patient or incapable person at the time of the135 (2). dealing, although he is not, in fact, then an insane
patient or incapable person; and a purchaser or mort-gagee from the Public Trustee of any real or personalproperty of an insane patient or incapable person shallnot be bound to inquire as to the Public Trustee's powersso to deal with that property, or as to the application ofthe purchase money.
11,12,mreets.iner 27. If any insane patient is permitted to be absentcharge in from a hospital for the insane or licensed house uponcertain cases.
WA., 1903, trial or otherwise under the provisions of the LunacyN o. 15,s. 141. Act, the Public Trustee may in his discretion pay over
to the insane patient or to any person on his behalf whogives satisfactory security to the Public Trustee forthe proper management and disposal thereof, the wholeor any part of the money standing to the credit of the
Title of pur- 26. Persons dealing with the Public Trustee in respectchaser fromPublic of any estate over which he has assumed control shallTrustee. be as fully protected as if the owner of the estate were
1941.] Public Trustee. [No. 26.
patient, and may hand over to him or to the personaforesaid all other property forming part of his estate.
(2) The receipt of the patient, or the person aforesaid,shall be an absolute discharge to the Public Trustee,notwithstanding any informality in or about the grantingof such permission as aforesaid.
28. (1) If any real or personal property of an insanepatient or incapable person is wrongfully held, detained,converted, or injured, or if any sum of money is dueand owing to such patient or incapable person by anyperson, the Public Trustee may, as such Public Trustee,claim and recover possession of such property ordamages for the conversion or injury thereof, orpayment of the said sum by summary proceeding oncomplaint before a judge, who is hereby authorised,on proof to his satisfaction of the said cause ofcomplaint, to make an order requiring the defendantto give up possession of such property, or to pay reason-able damages, to be fixed by the said order, for the con-version or injury thereof, or to pay the sum so due asaforesaid, and, in default of compliance by the defendantwith the said order, to order in and by the same or anysubsequent order that the defendant be committed toprison for any period not exceeding six months.
(2) Such judge may, on any complaint under this sec-tion, make such order as to costs as he thinks fit, andevery order under this section shall have the same effect,and may be enforced in like manner as any judgment,decree, or order of the Supreme Court in its ordinaryjurisdiction.
(a) any person within one month before becoming culii—y be set g
an insane patient; or aside.W.A., 1903,
(b) any insane patient, before his discharge No. 15, s. 142.
has made or executed any transfer, sale, alienation,charge, or lease of any property, real or personal, thecourt may, on application being made by the PublicTrustee and on notice to such persons as the court maydirect, set aside the said transfer, sale, alienation, charge,or lease, and may make such order as may be just.
For the purposes of the application the patient shall
No. 26.] Public Trustee. [1941.
be prima facie deemed to have been insane at the timewhen he made or executed the transfer, sale, alienation,charge, or lease.
Payment to 30. (1) After the discharge or death of an insanedischargedPatients and patient or incapable person, the Public Trustee may payto represen-tatives of over to him, in the case of his discharge, or to his legaldeceasedpatients. representative, in the case of his death, all moneys stand-W.A., 1903, lug to the credit of that insane patient or incapableNo. 15, s. 143.
person, and may hand over to him or to his legal repre-sentative (as the case may be) all other property formingpart of his estate.
(2) The receipt of the said insane patient or incapableperson or his legal personal representative shall be anabsolute release to the Public Trustee, notwithstandingany informality in the discharge, or in the mode ofobtaining the same.
(3) The Public Trustee may, in the exercise of hisdiscretion, require a discharged insane patient or incap-able person claiming money or property as aforesaid,to obtain the order of the court.
Payment ofsum, not ex- (4) Where no debt has been proved with respect toceeding £100,to represen- the property of an insane patient or incapable person,tatives orlegatees, or no debt remains unsatisfied and the amount of any
money standing to the credit of the insane patient orincapable person, and the value of any other propertyforming the estate, does not exceed in the whole one hun-dred pounds, the Public Trustee may, in his discretion,after the death of the insane patient or incapable person,pay and hand over such money and property to anyperson claiming as entitled in the distribution of hisestate, or as a legatee under his will, notwithstandingletters of administration have not been obtained or thewill proved, and notwithstanding legal proof is not givenof the right or title of the person claiming as aforesaid.
mPuabyliacalrustee 31. (1) Notwithstanding the discharge or death of aA
tvi s nhero-notice patient, the Public Trustee may continue to perform the
discharge ofdeath or duties and exercise the powers conferred upon him withof
patient. respect to the estate of that patient until he receivesLA.15110145 notice of such discharge or death as aforesaid.
(2) On the discharge or death of a patient, he or hislegal personal representatives, as the case may be, shallbe bound by and may take advantage of an act lawfully
1941.] Public Trustee. [No. 26.
done by the Public Trustee on behalf of the patient, as ifthe said act had been done by the patient himself whilesane.
32. When any application is made to the court or a itatoonfroP;r iginingnietneeo tjudge under the Lunacy Act to appoint any person other a
than the Public Trustee to undertake the care and or pjyrseonntoto
management of the property of an incapable person, Pubsltece.
notice of the application shall be given to the PublicTrustee by the person making the same.
33. The powers, duties, and functions ofTrustee under this Act shall cease
the Public Cessation ofpowers ofPublicTrustee.
(a) when the insane patient or incapable persondies;
(b) when the court declares that the insane patientor incapable person has recovered his sanityand/or is capable of managing his affairs.
(c) upon notice from the Inspector General of theInsane that the person being a patient hasbeen discharged.
34. On the death of any insane patient or incapableperson whose estate is subject to the control of the PublicTrustee, or on the supersession or rescission of the re-lative declaration or order made under the Lunacy Act,or on the cessation of the Public Trustee's powers overthe estate of any such person, the Public Trustee maydirect and authorise the payment, transfer, or deliveryof any funds in his custody or under his control belong-ing to the insane patient or incapable person, or anydocuments or effects relating to or forming part of hisestate deposited in the Office of the Public Trustee forsafe custody, to the person entitled thereto.
35. The Public Trustee may, on being satisfied of thedeath of an insane patient or incapable person, open andread any document deposited with him purporting oralleged to contain any testamentary disposition made bysuch person, or for the purpose of ascertaining who istherein nominated executor thereof, and whether anydirection is contained therein concerning the funeral orplace of interment of such person, and shall then deliverthe document to the executor or one of the executorstherein named, or some other person, to be dealt withaccording to law
Delivery outof funds,documents,and effects.
The PublicTrustee mayopen and de-liver out will.
Personaleffects of in-sane or incap-able personsmay be sold.
W,A., 1903,No. 15, s. 144.
No. 26.] Public Trustee. [1941.
36. All personal effects which come to the hands ofthe Public Trustee belonging to any insane patient orincapable person whose estate is subject to the controlof the Public Trustee may be sold by the Public Trustee,if not claimed within two years from the date of the dis-charge or death of the person concerned. The proceedsof any such sale shall be paid into consolidated revenue,as unclaimed moneys.
Division (5)—Powers and Duties of Public Trustee withrespect to Persons under Disability, and others, incertain Cases.
Investment ofmoneys undercontrol orsubject toorder of theSupremeCourt,
37. (1) The investments of moneys under the controlstaff. subject to any order of the Supreme Court shall bemade by the Public Trustee.
(2) All moneys or damages so received or awardedby or to the Public Trustee shall, subject to any specificor general directions of the appropriate court, beheld and applied by him in such manner as he thinks fitfor the maintenance and education or otherwise for thebenefit of the persons entitled thereto.
Qld., 1915, (3) (a) All moneys ordered by a magistrate of a locals. 50.court to be invested under the provisions of the Workers'Compensation Act, 1912-1939, shall be paid to the PublicTrustee, and the receipt of the Public Trustee, or of anyone authorised by him in that behalf, shall be a completedischarge to the magistrate and all other persons con-cerned.
(b) The Public Trustee shall thereupon hold the saidmoneys for the person or persons entitled thereto.
(4) Any such sum shall be disbursed by the PublicTrustee in accordance with the order of the magistratewho shall determine the manner in which such sum shallbe applied: Provided that the investment of any suchsum shall be in the sole discretion of the Public Trustee.
(5) A certificate under the hand and seal of the PublicTrustee, showing the receipt of the said money, shall inany court or proceedings whatsoever be sufficient evi-dence of the facts therein stated without any furtherproof.
1941.] Public Trustee. [No. 26.
(6) Nothing in this section shall prejudice the lien ofa solicitor for any costs which have been allowed by theMaster or clerk of the local court as solicitor and clientcosts. No costs other than those allowed in such taxa-tion shall be payable to any solicitor.
PART iii.-FINANCIAL.38. (1) There shall be charged, in respect of the
prey tx;preduties and services of the Public Trustee, such fees, s becrid.
whether by way of percentage or otherwise, as shall be 6l 4. 1915'prescribed and such fees shall be collected and accountedfor by such persons and in such manner as may be pre-scribed, and shaRbe paid into the Consolidated RevenueFund. In time of war reduced fees may be prescribedwith respect to the trusts and estates of members of theForces.
(2) Such fees shall not exceed (in addition to allmoneys properly expended in respect of the estate) twoand a half per centum of the corpus of any estate andfive pounds per centum of income received by the PublicTrustee, in respect of any such estate.
(3) The incidence of fees and expenses under this sec-tion, as between corpus and income, shall be determinedby the Public Trustee.
39. (1) In addition to any charges otherwise pre-scribed, all expenses incurred by or on behalf of the PublicTrustee in respect to the maintenance of an insanepatient or incapable person or the control, management,or administration of any trust estate or property, shallbe charged against and payable out of that trust estateor property.
(2) All expenses incurred by or on behalf of the PublicTrustee in carrying into execution any of the provisionsof this or any other Act and not chargeable to or recover-able from any estate or property shall be defrayed andpaid out of such moneys as Parliament appropriates forthat purpose.
40. (1) Subject to this Act, all capital moneys, how-ever arising, vested in the Public Trustee, shall unlessdirected to be otherwise invested, become one commonfund (herein called the "Public Trustee Common Fund")to be kept at the Treasury, to be invested by the PublicTrustee.
Payment ofexpensesincurred byPublicTrustee.
Commonfund and itsinvestments.QId. 1915,s. 18;N.Z., 1908,No. 159,s. 32 ;Ta p. 1930,No. 61, s. 38.
Investments made from the common fund shall not bemade on account of or belong to any particular trust orestate.
Subject to this Act, interest earned by such invest-ments shall be paid into the common fund.
(2) The Public Trustee may invest in any of the in-vestments in which, under the Trustee Act, 1900, or anyAct amending the same, or any other Act, trustees areauthorised to invest trust funds.
(3) lie may invest or retain invested money belongingto any trust or estate and coming to his hands in anyinvestment authorised by the -trust instrument or (saveas otherwise provided by that instrument) authorisedby law, and may (save as so provided) retain any invest-ment existing at the date of the commencement of thetrust, or (where the trust arises on an intestacy) at thedate of the death of the intestate.
(4) The income belonging to the respective trusts orestates, the moneys of which form the common fund, shallbe credited to the respective trusts or estates quarterly,as prescribed, on the first days of January, April, July,and October in each year.
(5) Provided that moneys expressly directed to be in-vested otherwise than in the common fund shall not formpart of the common fund, and the Public Trustee mayinvest such moneys in accordance with such direction.But any loss or deficiency in respect of any such invest-ments, or of the money received therefrom or realisedthereby, shall be borne by the trust or estate to whichsuch moneys belong, or, if received or realised, wouldbelong.
41. (1) In order to admit of the moneys in the com-mon fund being kept closely invested, or to providemoneys wherewith to make advances in connection withestates, the Public Trustee may, with the approval of theMinister in each case, obtain advances from theTreasurer by hypothecating securities held by him inrespect of investments of the common fund.
(2) Every such advance shall be for such period, notexceeding four months, and at such rates of interest asare approved by the Treasurer.
1941.] Public Trustee. [No. 26.
Provided that, on the expiration of the said period,the advance may be renewed for the same or any shorterperiod, and so on from time to time.
42. If the common fund is insufficient to meet the Deficiency in
lawful claims thereon, the Treasurer shall, without fur- Q/d., 1/.fund.
ther appropriation than this Act, pay such sums out of fiZ2.,° ;1908,the consolidated revenue fund as are necessary to meet Na. 159'
s. 35.
the deficiency.
43. Moneys in or payable into the Public Trustee's nibcelefaraccount by the Public Trustee or any officer, servant, or ptoobpeeretryown
person acting or presuming to act under the authority N.2., 1908,No. 159. s. 36.of this Act shall be deemed to be property of His Majesty
for the purposes of this Act, and shall be recoverable inlike manner as money due to the Crown is recoverable.
44. (1) The Public Trustee may make advances out of „A=moneys standing to the credit of the common fund for fguatsrthe purposes of any trust or estate in course of adminis- shares'Ql d., 1915,tration or about to be administered by him. s. 21.
(2) Where an estate is under administration by him,and there is no money or not sufficient money availableto make payments required to be made on account of suchestate, whether to the persons entitled thereto or to ashare or interest therein or otherwise, he may advanceand pay for or on account of such estate any sum ofmoney (not exceeding in the whole one-half the totalvalue of the property) which he is authorised or requiredto pay.
(3) Where an estate is under administration by him,and any person entitled to a share of that estate desiresan advance against his share, he may make advances tothat person not exceeding in the whole one-half of thevalue of the share as estimated by the Public Trustee.
(4) All sums so advanced, with all interest thereon,shall be a first charge upon all the property of the estate,or the share advanced against, as the case may be, andshall bear interest at the rate fixed by the Public Trustee,but not exceeding five pounds per centum per annum,except with the approval of the Minister.
(5) All interest received under this provision shall bepaid into the common fund.
No. 26.]
Public Trustee. [1941.
(6) A certificate under the hand and seal of the PublicTrustee, stating the amount owing for advances and in-terest on any specified date, by the estate or person towhom the advances were made, and the share, if any,against which they were made, shall be sufficient evidenceof the facts until the contrary is proved.
QM., 1A 10
915,9. estate under administration by him for a term of six years
next preceding and in respect whereof the Public Trusteehas caused an advertisement to be published at leasttwice at intervals of fourteen days in a newspaper circu-lating in Perth and the Public Trustee has no informationor knowledge of the existence of any person entitled indistribution, or claiming so to be, to be paid to theTreasury for the public service. Provided that thePublic, Trustee may, with the approval of the Minister,retain to the credit of any estate such amount as he mayconsider likely to be required to answer payment to bemade out of such estate.
Inspectionand audit ofbooks of Pub.lie Trustee.W.A., 1918,No, 9, s. 23
1915,s. 22.
46. (1) The Minister, and any officer of his depart-ment authorised by him, shall have at all times accessto all the books, accounts, documents, and papers in thePublic Trustee's Office, and the Public Trustee shall atall times furnish to the Minister all such information asthe Minister requires.
(2) The accounts of all estates and properties con-trolled or managed by the Public Trustee shall beaudited by the Auditor General, who shall have allthe powers in respect of such accounts as are or maybe conferred upon him by any Act now or hereafter inforce relating to the collection and audit of public moneysand accounts.
Accounts to 47. (1) The Public Trustee shall make or cause to bebe kept.Old., 1915, made an inventory of all estates in course of administra-W.A.,
2.W.A., 1918, tion by him, and shall retain the same in his office, andNo. 9, a. 22, shall keep an account of all his receipts, payments, and
dealings in every such estate, and shall retain all letters
Unoneclaimed
tobe 45. The Public Trustee shall, on or before the thirty-mysPaid into first day of March in each year, cause all sums of moneyconsolidatedrevenue. winch on the first day of that month have been in theW.A., 1918,No. 9, S. 24 : hands of the Public Trustee to the credit of any trust or
1941.] Public Trustee. [No. 26.
received and copies of all letters written by him, and alldeeds, papers, and writings of and relating to every suchestate.
(2) Upon an application in writing by or with theauthority of any person interested in any such estate,the Public Trustee shall
(a) permit the applicant or his solicitor or otherauthorised agent to inspect and take copiesof any entry in any register relating to theestate, and (so far as the interest of the appli-cant is or may be affected thereby) of anyaccount, notice, or other document in the cus-tody of the Public Trustee; and
(b) at the expense of the applicant, supply him orhis solicitor or other authorised agent witha copy of any such entry, account, or docu-ment as aforesaid, or of any extract there-from; and
(c) give to such applicant or his solicitor or otherauthorised agent such information respectingthe estate and the trust property as is reason-ably requested in the application and is withinthe power of the Public Trustee.
(3) Subject as aforesaid, the Public Trustee, hisofficers and agents, shall observe strict secrecy in respectof every trust or estate in course of administration byhim.
48. The Public Trustee shall in every year, not later PublicTrustee's
than the thirtieth day of November, transmit to the accounts andbalance sheet.
Minister, to be laid before Parliament, a report covering Q1d., 1915,s.the operations of his office during the previous twelve 25.
months ended on the thirtieth June next preceding.
PART W.-GENERAL.49. (1) The Public Trustee, for any of tl e purposes of
this Act, unless expressly prohibited by or under aninstrument or order of the court may, at his discretionand in addition to and not in restriction of any otherpowers under this or any other Act, exercise the follow-ing powers :—
(a) collect, receive, and recover any moneys, rents,incomes and profits due or which become due to
Generalpowers ofPublicTrustee.WA., 1903,No. 15, ss.133, 13S, 148;Tas., 1930,No. 61, s. 32;N.S.W., 1913,No. 19, s. 35;N.Z., 1908,No. 159,s. 29:QUI., 1915,
58.
No. 26.] Public Trustee. [1941.
or any compensation or damages for injuryto any estate or person;
(b) lease land or premises for a term not exceedingthree years, at such rent and on such condi-tions as lie may think fit;
(c) surrender any lease, accept any lease, accept thesurrender of any lease, or renew any lease;
(d) exercise to such extent and in such manner asthe Public Trustee thinks proper any powerof leasing vested in any person;
(e) sell, exchange, realise, mortgage or charge anyproperty. The Public Trustee when actingunder this paragraph as executor or adminis-trator shall be subject to the AdministrationAct, 1903-1939;
(f) bring land under the Transfer of Land Act,1893-1939;
(g) pay any debts, and settle, adjust, or compromiseany demand made by or against any estate orperson, and discharge any encumbrance onthe estate;
(h) carry on, so far as appears desirable, any trade,profession, or business carried on prior to hisappointment;
(i) agree to any alteration of the conditions of anypartnership or to a dissolution and distribu-tion of the assets thereof ;
(j) bring and defend actions, suits, and other legalproceedings, and suffer judgment to go bydefault, or consent to any judgment or orderin such action or proceeding, upon such termsas he thinks fit ;
(k) execute and sign all deeds, instruments, andother documents;
(1) complete any contract entered into prior to hisappointment, or enter into any agreement ter-minating such contract, or any liability there-under ;
(m) take proceedings to cause a person to be adjudi-cated a bankrupt or a company to be placed inliquidation, and vote and act, either personallyor by proxy, at meetings of creditors or share-holders, whether the company be in liquida-tion or not ;
1941.] Public Trustee. [No. 26
(n) pay such sum or sums for the maintenance ofany person (and, in the event of death, forfuneral expenses), and for the maintenanceof his wife or any child, parent or other persondependent on him, and for the education ofhis children, as to the Public Trustee seemsexpedient and reasonable;
(o) exercise powers of appointment and give con-sents as fully and effectually as the person herepresents could have exercised or given;
(p) insure against fire, accident, loss or damageany property; (Where he holds any life policy,and there are not sufficient funds to keep thesame on foot, he may surrender such policyand accept in lieu thereof a fully paid-uppolicy.)
(q) expend money for the repair, maintenance, up-keep or renovation of any property ;
(r) generally do all acts and exercise all powerswith respect to the estate or person as effec-tually and in the same manner as the personwhom he represents himself might have done.
(s) do all matters necessary or incidental to the per-formance of any of the abovementioned mat-ters, and apply any moneys which it is neces-sary to apply.
(2) Provided that, unless under the express authorityof this Act or of any instrument or an order of the Court,or except when acting as executor or administrator forthe purpose of administration, the Public Trustee shallnot under paragraph (e) aforesaid-
(i) sell real property of a greater value than onethousand pounds;
(ii) exchange real property of a greater value thantwo hundred and fifty pounds, or join in apartition in which the interest of any personentitled thereunder exceeds two hundred andfifty pounds;
(iii) borrow money to an amount exceeding onethousand pounds.
(3) In the event of the execution or signature by thePublic Trustee of any deeds, instruments (including in-struments under the Transfer of Land Act, 1893-1939),
No. 26.] Public Trustee. [1941.
transfers of shares, receipts, releases, and other docu-ments, they shall be as effectual as if executed or signedby the person whom lie represents and shall be acted uponby the Registrar of Titles and all other persons withoutany obligation to inquire as to the authority or powersof the Public Trustee.
Appointmentand duties ofagent.
50. (1) The Public Trustee may appoint any personto act as his agent. At the request of the Public Trusteeany clerk of courts, and any other officer of theState, shall act as such agent within his district, andwith, under and subject to such powers, conditions, andlimitations as are contained in such appointment.
(2) Every such agent, not being a clerk of courts, orother officer of the State shall, if required by the PublicTrustee, give such security for the due performance ofhis duties as the Public Trustee thinks proper andsufficient.
No bond by 51. No bond or other security shall be required fromPublicTrustee. the Public Trustee in relation to his appointment to orQld., 1915,s. 13 ; acting in any office or capacity pursuant to this Act.WA., 1903,No. 13, 9s.
8,26 ; Notwithstanding any Act, rule, or practice to the con-W.A., 11
No. 9, s. 25 ; trary it shall not be necessary for the Public Trustee toN.Z., 1908,No. 159, s. file any accounts in the Registry of the Court.45.
Public Trustee 52. Notwithstanding any rule of law or practice tomay sue him-
selfin d icer- the contrary, the Public Trustee, acting in one capacity,ent capacities.N.Z., 1921.22: may commence proceedings in his corporate name againstNo. 48, s, 79.
himself acting in another capacity : Provided that in everysuch case the Public Trustee shall obtain the directionsof the court as to how the opposing interests are to berepresented.
Employment 53. (1) The Public Trustee may, as hereinafter pro-of solicitors,etc. vided, employ such solicitors, counsel, bankers, account-Q1d., 1915,s. 15 ants, and brokers or other persons as he considersN.S.W.,1913,No. 19, a. 57 ; necessary.Vie., 1939,No. 4,s. 66
654. In determining the persons to be so employed in rela-
tion to any trust, he shall have regard to the interestsof the trust, but subject to this shall, whenever practic-able, take into consideration the wishes of the creator ofthe trust and of the other trustees (if any), and of the
1941.] Public Trustee. [No. 26.
beneficiaries, either expressed or as implied by the prac-tice of the creator of the trust, or in the previous manage-ment of the trust.
(2) The Public Trustee shall be guided by the follow-ing principles in regard to the employment of solicitorsto conduct legal business arising in connection with theperformance of Ids duties, including applications forprobate or administration
(a) if there is a named solicitor, the Public Trusteeshall employ such solicitor;
(b) if a solicitor's name is indorsed on the documentfrom which the Public Trustee derives hisauthority to act, the Public Trustee shall, sub-ject to the provision of the next succeedingparagraph, employ such solicitor;
(c) if the Public Trustee is satisfied that thetestator, settlor, or other person signing thewill, deed of settlement, or other documentfrom which the Public Trustee derives hisauthority to act had a usual solicitor, thePublic Trustee shall employ such solicitor,and if such will, deed, or other document isindorsed with the name of another solicitor,the Public Trustee may employ such usualsolicitor in preference to the solicitor whosename is so indorsed;
(d) when the Public Trustee is administering theaffairs of an insane patient or incapableperson the Public Trustee shall, as far aspracticable, employ the usual solicitor, if any,of such insane patient or incapable person.
In this subsection"Named solicitor" means a solicitor as to
whom the testator, settlor, or otherperson signing a will, deed of settle-ment, or other document from whichthe Public Trustee derives his authorityto act has in such document expresseda desire that such solicitor should beemployed to conduct any legal businessarising in connection with the estate orsubject matter of such document.
No. 26.] Public Trustee. [1941.
"Usual solicitor" means a solicitor as towhom the Public Trustee is satisfiedthat the testator, settlor, or other per-son signing a will, deed of settlement,or other document from which thePublic Trustee derives his authority toact habitually employed such solicitorto conduct legal business for him.
(a) a solicitor entitled to be employed by the PublicTrustee may, upon cause shown, be removedby order of the Court, upon the applicationof the Public Trustee or of any personinterested in the estate or property; and
(b) with regard to any particular piece of legalbusiness the Public Trustee, if he considersthat it would be unreasonable to employ a soli-citor to conduct such piece of business, neednot employ a solicitor to conduct such pieceof business.
54. (1) Any testator may deposit his will in theOffice of the Public Trustee for safe custody or for ac-ceptance or rejection after death.
(2) Any person who has in his custody or control anytestamentary paper of any insane patient, insane person,or incapable person, may deposit the same in the Officeof the Public Trustee upon oath, as he may direct, thereto remain for safe custody.
(3) If the will is deposited for safe custody then, afterthe death of the testator, the Public Trustee shall deliverthe same to such person as the testator may have directedin writing or, in the absence of such direction to suchperson, as the Public Trustee thinks entitled thereto.
(4) Any person may deposit any trust instrument,debenture or other interest bearing security or documentsof title to property.
Inquiries as 55. (1) The Public Trustee shall be entitled to re-to property.N.z., 1921-22, quire all persons to deliver, convey, transfer, or assignNo. 48, a. 96.
to him all property to which he is entitled.
1941.] Public Trustee. [No. 26.
(2) For the purpose of ascertaining whether anyperson is possessed of or entitled to any property whichshould be so delivered, conveyed, transferred, orassigned, the Public Trustee may institute such inquiriesas he thinks proper, and may, by summons under hishand, require any person to appear before him andanswer all questions that he may put to such personwith reference to any property.
(3) If any person fails to so deliver, convey, or trans-fer all property as aforesaid, or if the procedure in thelast preceding subsection provided fails to elicit the par-ticulars required, the Public Trustee may take out asummons requiring such person, or any person who maybe supposed to be in possession of information relevantto the matter under investigation, to appear before thecourt for the purpose of being examined touching suchmatters, and to produce any documents.
(4) If the court is of the opinion that any such personis possessed of or entitled to any property that shouldbe so delivered, conveyed, transferred, or assigned asaforesaid, the court may make an order requiring suchperson to deliver, convey, transfer, or assign all suchproperty within such time as the court may fix. Suchorder may be made in the absence of the person sum-moned, if the summons has been duly served upon him,or the court is satisfied that reasonable efforts have beenmade to serve the same.
(5) The court may order such person to pay all ex-penses of and incidental to such summons and any ex-amination consequent thereon; and if the court does notso order, then such expenses shall be paid out of thegeneral funds of the estate concerned in priority to allother claims, or if the court so orders, out of any par-ticular portion of such funds.
(6) Any person who, without valid excuse, fails toattend pursuant to such summons, or who, upon attendingrefuses to be sworn or neglects to answer any relevantquestion put to him by or on behalf of the Public Trustee,or who, having been summoned to produce any docu-ments, fails to produce the same without valid excuse,or, if so required by the court, to hand such documentsover to the Public Trustee, or who disobeys any order
No. 26.] Public Trustee. [1941.
made by the court upon the hearing of such summons,shall be guilty of contempt of court; and the court maymake an order for the arrest of such person and his im-prisonment, either for such period as the court thinks fitor until he has purged his contempt to the satisfaction ofthe court. The court may also order such person to paythe expenses of such proceedings.
(7) Any such person wilfully neglecting to complywith this section shall be liable to a penalty not exceedingtwo hundred pounds, to be recoverable by civil action,at the suit of the Public Trustee.
(8) In this section the term "documents" includesbooks, papers, deeds, documents, and any writings what-soever.
Remedyagainst PublicTrustee.Qld., 1915,s. 81.
56. (1) Subject to this Act, where any person, by actor thing done or omitted by the Public Trustee, or byany person acting or bona Me assuming to act for him.sustains any injury which would have entitled such personto a remedy in respect thereof, if such act or thing hadbeen done or omitted by a private person, then suchperson shall be entitled to the same remedy against thePublic Trustee in his corporate capacity as he would beentitled to against a private person and shall be entitledto be indemnified under this Act.
Provided that, where the injury is one to which neitherthe Public Trustee nor any of his officers or agents hasin any way contributed, and which neither he nor any ofthem could by the exercise of reasonable diligence haveaverted, the Public Trustee shall not be subject to anyliability.
(2) Consolidated Revenue or such other fund as maybe prescribed, shall be liable to make good all sums re-quired to discharge any liability of the Public Trustee inhis corporate capacity.
Public Trustee 57. Neither the Public Trustee nor any officer orand officersnot personalty servant acting or bona fide assuming to act under any ofliable exceptfor fraud or the authorities contained in or conferred by this Act,crime.g.Z., 1908, shall be personally liable for any act or thing done orgo. 159, s. 60. omitted, unless the liability arises from actual fraud or
crime.
1941.] Public Trustee. [No. 26.
58. The Public Trustee may, ex parte, take the opinionor obtain the direction of the Supreme Court upon anyquestion, whether of law or of fact, arising under thisAct, or in the course of his duties, or with respect to theexercise of ally of the powers over persons or estates.conferred upon him by this Act.
Any such question shall be submitted to a judge in suchmanner and at such times as he may direct and shall beaccompanied by such statement of facts, documents, andother information as he may require ; and the PublicTrustee or any one authorised by him shall, if the judgeso desires, attend upon him at such time and place as thejudge may appoint. The judge may, before giving hisopinion or direction, require the attendance of or com-munication with any person interested in the estate,but no such person shall have a right to be heard unlessthe judge otherwise directs.
The judge shall give his opinion or direction to thePublic Trustee, who shall thereupon act in accordancewith such opinion or direction, and shall, upon the requestin writing of any such interested person, communicateto him the effect of such opinion or direction.
59. A certificate under the hand of the Public Trustee,and sealed with his seal, certifying the nature of hisappointment or authority in relation to any trust orestate in course of administration, and any facts on thehappening of which such appointment or authority wasmade or granted, shall be accepted by all courts, officers,and other persons, whether acting under any Act or not,as sufficient evidence of all the facts therein set forth,without production of any other proof whatever.
60. All documents held by the Public Trustee shallbe kept in safe custody, ill such manner as he directs,and may be produced or parted with by his authority asand when he thinks proper in the conduct of the businessof his office.
61. (1) The Registrar of Titles shall register trans-mission of any real property to the Public Trustee, whenduly appointed, and register all transfers and other in-struments executed by the Public Trustee in the samemanner as transmission is now entered up and transfersand other instruments registered.
Public Trustedmay takeopinion ofcourt.WA., 1918,No. 9, s. 13.
(2) Whenever in any case the title of the PublicTrustee is defective through the non-existence or non-issue of any instrument of title which ought to be issued,then the Public Trustee may require the same to beissued to him and the proper officer shall, upon applica-tion, issue the same to him accordingly.
(3) The Registrar of Titles, Under Secretary forLands, Registrar of Companies and Firms, Under Secre-tary for Mines, every officer of the Supreme Court, andall public officers entrusted with the keeping of public re-cords, shall permit the Public Trustee and any officerauthorised by him in that behalf, free of charge, to makesearches of and to make copies of or extracts from anydocument of title or records in the department or registryrelating to any property or estate in which the PublicTrustee is or may he interested.
Regulations.
62. The fees and commissions charged by the PublicTrustee shall be deemed to be a testamentary expense.
63. Where the Public Trustee pays any premiums inrespect of any policy of insurance, he shall have a lieuon the policy moneys for the amount of the premium sopaid, together with interest thereon.
64. The Governor in Council may from time to timemake regulations with respect to all or any of the follow-ing matters :-
(a) The conduct of the business of the PublicTrustee Office.
(b) Determining the powers and duties of theofficers, servants, and persons employedtherein.
(c) The custody of all the property placed thereinand the trust instruments and the instrumentsof title relating thereto; the establishment ofa public safe deposit.
(d) The receipt and payment of moneys under thisAct.
(e) Establishing, keeping, rendering, and auditing ofaccounts under this Act.
(f) Transfers of property to and from the PublicTrustee under this Act.
Fees andcommissionsdeemedtestamentaryexpenses.
Public Trusteeto have lienan policymoneys forpremiums.
1941.] Public Trustee. [No. 26.
(g) The forms of mortgages, leases, certificates, andother official instruments and documents to beused in the conduct of the business of thePublic Trustee.
(h) Fixing scales of fees, commissions, and chargesto be made by the Public Trustee under tinsAct.
(i) Specifying the matters or services for whichcharges may be made by the Public Trusteeor in respect of which remuneration shall bepayable to him and fixing by scale or other-wise the amounts thereof or empowering thePublic Trustee so to do.
(j) The payment of profits or other moneys to con-solidated revenue or other accounts.
(k) Any other matter which by this Act is expressedto be prescribed, or any matter, object, or pur-pose which may be deemed necessary for giv-ing full effect to this Act or to the administra-tion of the Public Trustee Office.
65. The Court may from time to time make all suchrules of court as appear to be necessary or proper withrespect to applications, orders, and matters and other-wise for regulating practice, procedure, costs, and feesso as to give full effect to this Act.
Rules ofCourt.
No. 26.] Public Trustee. [1941.
SCHEDULE.
Title of Act. Extent of Amendment or Repeal.Number of Act.
8 Geo. V., 23...
12 Geo. V., 8 ...
3 Edw. VII., 15
18 Geo. V., 13 ...
7 Geo. V., 29...
3 Edw. VII., 13
3 Geo. V, c 50 ...
Curator of IntestateEstates Act, 1918(No. 9)
Official Trustee Act,1921 (No. 8)
Lunacy Act, 1903-1920(No. 15)
The whole repealed.
The whole repealed.
In s. 123 :—Par. (1) Delete thewords " and patients " in linethree ; par. (3) delete the whole.
In s. 124 :—Delete the words " orpatient " in line four.
In s. 125 :—Delete the words " orpatient " in lines four, eight, andeleven ; delete the words"whether such patient has beendischarged or not" in lines tenand eleven.
In s. 126 :—Delete the words "andinsane patient " in lines three andfour ; delete the words " andpatients " in. line seven ; deletethe words " or the insane patientdies or is discharged from thehospital or other place in whichhe is detained " in lines nine andten.
In s. 127 :—Delete the words " orpatient " in lines ten and eleven.
In s. 129 :—Delete the words " orpatients " in line six.
Sections 131, 132, 133, 134, 135,136, 137, 138, 139, 140, 141, 142,143, 144, 145, and 146 are re-pealed.
In s. 183 :—Insert in subsection (1)par. (a) the words " and to thePublic Trustee" after the word" Master " in the first line.
In s. 6 :—Delete the words " theOfficial Trustee Act, 1921 " inlines five and six and substitute" The Public Trustee Act, 1941 "
In s. 3 :—Insert the words " andthe Public Trustee Act, 1941,"after the words " Lunacy Act,1903," in line seven ; delete thewords " that Act " in line eightand substitute the words " thoseActs." Repeal the whole ofsubsection (2).
Section 22 is repealed.
In First Schedule, Clause 5:—De-lete the words " be invested,"in line five, and substitute " beordered to be invested."
