No. 6350. PUBLIC TRUSTEE ACT 1958. · 2019. 5. 16. · 1958. Public Trustee. No. 6350 269 No. 6350. PUBLIC TRUSTEE ACT 1958. An Act to consolidate the Law relating to the Public Trustee

1958. Public Trustee. No. 6350 269

No. 6350.

PUBLIC TRUSTEE ACT 1958.

An Act to consolidate the Law relating to the Public Trustee.

[30th September, 1958.]

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):—

1. This Act may be cited as the Public Trustee Act 1958, shorttitie and shall come into operation on a day to be fixed by proclamation me'SS6" of the Governor in Council published in the Government Gazette, division-and is divided into Parts and Divisions as follows:—

Part I.—The Public Trustee ss. 4-7.

Division 1.—Capacities in which Public Trustee

Part II.—Powers and Duties may be appointed ss. of Public Trustee 8-27. ss. 8-54. Division 2.—Management

of Estates of Patients and Infirm Persons ss. 28-54.

Part III.—Financial ss. 55-64. Part IV.—General ss. 65-73.

270 1958. Public Trustee. No. 6350

Repeal. 2 . (1 ) The Acts mentioned in the First Schedule to the extent thereby expressed to be repealed are hereby repealed accordingly.

( 2 ) Except as in this Act expressly or by necessary implication provided—

(a) all persons things and circumstances appointed or created by or under any of the repealed Acts or existing or continuing under any of such Acts immediately before the commencement of this Act shall under and subject to this Act continue to have the same status operation and effect as they respectively would have had if such Acts had not been so repealed;

(b) in particular and without affecting the generality of the foregoing paragraph, such repeal shall not disturb the continuity of status operation or effect of any proclamation regulation order application grant election proceeding agreement determination decision recommendation direction certificate approval disapproval objection appointment delegation power notice fee liability or right made effected issued granted given filed presented passed exercised fixed accrued incurred or acquired or existing or continuing by or under any of such Acts before the commencement of this Act; nor shall the repeal of the Public Trustee Act 1939 affect the operation or effect of paragraphs (a) to (d) and (/) to (h) of sub-section (1) of section three of that Act.

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

" Administration " means with reference to the estate of a deceased person letters of administration whether general special or limited or with the will annexed or otherwise, and " administrator " has a corresponding interpretation.

" Court" means the Supreme Court of Victoria or a judge thereof.

" Division " means Division of a Part of this Act. " Estate " means real and personal estate. " Income " includes rents and profits. " Infirm person " means person—

(a) proved to the satisfaction of the Public Trustee to be by reason of senility disease illness or physical or mental infirmity incapable of managing his affairs; and

Interpretation No. 4654 s. 2; No. 4963 s . 2 ( 2 ) . No. 5523 8 . 2 ( 1 ) .

" Administration."

** Administrator."

' Court."

" Division."

" Estate."

" Income."

" Infirm person."


" Mental hospital."

" Next of kin."

' Part."

' Patient.'

(6) certified under this Act by the Public Trustee to be an infirm person and not subsequently certified under this Act by the Public Trustee not to be or to have ceased to be an infirm person.

" Intestate " includes a person who leaves a will but dies " Intestate."

intestate as to some beneficial interest in his estate. "Medical practitioner" means legally qualified medical -Medical

p r a c t i t i o n e r . practitioner."

" Mental hospital" means mental hospital under the Mental Hygiene Act 1958.

" Next of kin " with reference to a patient or infirm person means any person who would be entitled to the property of such patient or infirm person or to any share thereof under any law for the distribution of the property of intestates if such patient or infirm person were dead intestate.

" Part" means Part of this Act. " Patient" means any person under any Act relating to the

insane— (a) received into or detained in or ordered to be

received into or detained in any mental hospital hospital for the criminal insane receiving house receiving ward or private mental home;

(b) boarded out or established for patients;

(c) in any manner subject to be treated as or under control or supervision as insane or of unsound mind; or

(d) permitted to be absent on trial leave or parole—

and not discharged under any such Act, but does not include a person found lunatic by inquisition under any such Act:

Provided that no person shall by reason only of his being a voluntary boarder under any such Act and while he is a voluntary boarder be deemed to be a patient under this Act. " Prescribed" means prescribed by this Act or the " Prescrlbsd."

regulations. " Private mental home " means private mental home under •• Private

the Mental Hygiene Act 1958. £££•• " Probate " means probate of a will. " Probata."

placed in any cottage the reception of paying


" Property."

" Public Trustee."

" Registrar."

"Regulations."

" Schedule."

" Treasurer."

" WUL"

"Property" means real and personal property and any estate or interest therein, and includes a thing in action.

" Public Trustee " means the Public Trustee under this Act and includes the Acting Public Trustee.

"Registrar" means the registrar of probates and administrations of the court.

" Regulations" means regulations under this Act.

" Schedule " means Schedule to this Act.

" Treasurer " means Treasurer of Victoria.

" Will" includes codicil and every other testamentary instrument.

(2) Any reference in any Act regulation order or document to—

(a) the Curator of the estates of deceased persons; or (b) the Master-in-Equity in relation to the provisions of

Part V. of the Mental Hygiene Act 1928 (so far as relates to the care protection and management of estates of patients or of lunatics not being persons found lunatic by inquisition) and to Parts VI., VII., and IX. of the said A c t -

shall unless inconsistent with the context or subject-matter be deemed and taken to refer to the Public Trustee.

Appointment of Public Trustee. No. 4654 s. 4; No. 5286 s. Z

Public Trustee to vacate office at sixty-five years.

Saving of public service rights.

PART I.—THE PUBLIC TRUSTEE.

4. (1) The Governor in Council may from time to time appoint some fit person to be the Public Trustee and may remove any such person from such office.

(2) The Public Trustee shall not in respect of his office be subject to the provisions of the Public Service Act 1958 but for the purposes of section ten of the Special Funds Act 1910 shall be deemed to be an officer in the public service.

(3) No person shall be appointed to be Public Trustee or shall continue in office as Public Trustee after he attains the age of sixty-five years.

(4) If any person appointed to be Public Trustee was immediately before his appointment an officer of the public service he shall (while being or continuing to be or on ceasing to be Public Trustee) be eligible to be appointed to an office in the public service with a classification and emolument corresponding with or higher than that which he held in the public service


immediately before his appointment as Public Trustee as if the period of his service as Public Trustee had been service in the public service.

(5) If any person appointed to be Public Trustee was saving of immediately before his appointment an officer within the meaning Ration of the Superannuation Act 1958 or any corresponding previous rights-enactment he shall notwithstanding such appointment be deemed to continue subject to that Act to be an officer within the meaning of that Act.

(6) For the purposes of section sixty-three of the Public ^srl'0

>ugh>

Service Act 1958 the Public Trustee shall be deemed an officer in the public service and his service as Public Trustee shall be deemed service in the public service.

5. The Public Trustee and his successors in office shall be Public and continue to be a body corporate under the name of the 1^35? tobe

" Public Trustee " and shall by that name have perpetual succession «>rp°rate. and a common seal and be capable in law of suing and being sued. No. 4654 s. 5.

6. (1) The Governor in Council may appoint an Acting Public Trustee to discharge the duties of the Public Trustee during the absence of the Public Trustee through illness or other cause or during any vacancy in the office of Public Trustee.

(2) The Acting Public Trustee may during the period of his appointment act as Public Trustee and sign and execute all such documents as require signature or execution and do perform and discharge all other acts deeds and duties pertaining to the office of Public Trustee.

(3) The Governor in Council may from time to time appoint as many persons as the Governor in Council considers necessary to be Deputy Public Trustees, and the Governor in Council may at any time remove any Deputy Public Trustee.

(4) Every Deputy Public Trustee shall hold his office upon such terms and subject to such conditions as are prescribed or as the Governor in Council determines and shall not be subject to the provisions of the Public Service Act 1958, but for the purposes of section ten of the Special Funds Act 1910 shall be deemed to be an officer in the public service.

(5) No person shall be appointed to be a Deputy Public Trustee or shall continue in office as a Deputy Public Trustee after he attains the age of sixty-five years.

(6) If any person appointed to be a Deputy Public Trustee was immediately before his appointment an officer of the public service he shall (while being or continuing to be or on ceasing to be a Deputy Public Trustee) be eligible to be appointed to an office in the public service with a classification and emolument corresponding with or higher than that which he held in the public

Appointment of Acting Public Trustee to act during absence of Public Trustee or vacancy in that office. No. 4654 s. 6; No. 5286 s. 3

Appointment and removal of Deputy Public Trustees.

Conditions of office and non-application of Public Service Act.

Deputy Public Trustees to retire at sixty-five years.

Saving of public service and superannuation rights.


service immediately before his appointment as a Deputy Public Trustee as if the period of his service as a Deputy Public Trustee had been service in the public service.

(7 ) If any person appointed to be a Deputy Public Trustee was immediately before his appointment an officer within the meaning of the Superannuation Act 1958 or any corresponding previous enactment he shall notwithstanding such appointment be deemed to continue subject to that Act to be an officer within the meaning of that Act.

nirtough. (^) For the purposes of section sixty-three of the Public Service Act 1958 every Deputy Public Trustee shall be deemed an officer in the public service and his service as a Deputy Public Trustee shall be deemed service in the public service.

(9) Every Deputy Public Trustee shall, subject to the general direction and control of and to such restrictions and limitations as may be imposed by the Public Trustee or Acting Public Trustee, have full power and authority for and on behalf of the Public Trustee to sign and execute all such documents as require signature or execution and to do perform and discharge all other acts deeds and duties pertaining to the office of Public Trustee.

(10) No person dealing with any Deputy Public Trustee shall be concerned to see or inquire whether any restrictions or limitations have been imposed as aforesaid on the exercise of his powers, and every act or omission of any Deputy Public Trustee, so far as it affects any such person, shall have the same force and effect and all the same consequences as if it had been done or omitted by the Public Trustee.

Appointment 7. Subject to the Public Service Act 1958 there may be NO°4654S.7. appointed such officers clerks and persons as are necessary to

assist the Public Trustee in Ms duties.

PART I I . — P O W E R S AND D U T I E S OF P U B L I C T R U S T E E .

DIVISION 1. CAPACITIES IN WHICH PUBLIC TRUSTEE MAY BE APPOINTED.

8. (1 ) Where the Crown, the Governor in Council, a public officer, a court, a judge, a public or private corporate body or any person within or outside Victoria now or hereafter can appoint a trustee, executor, administrator, receiver, guardian, committee, agent or attorney, any of such appointments may be made of the Public Trustee, and the Public Trustee may accept any such appointment, and may consult with and give information to any person who contemplates so appointing him.

(2 ) Subject to this Act the powers duties and rights of the Public Trustee under any such appointment shall be the same as if the appointment had been of a private person.

Powers &c. of Deputy Public Public Trustees.

As to exercise of powers «c. by Deputy Public Trustees.

Appointment of Public Trustee in various capacities. No. 4654 3. 8; No. 4755 s. 5 (2), No. 5286 s. 4.


(3) The Public Trustee may decline either absolutely or Puerto except upon conditions to accept any trust or to act in any capacity Trustee to (other than those trusts and capacities which devolve or are ^ lmetrusts

imposed upon him specifically by law), but shall not so decline on the ground only of the small value of the estate or trust property concerned.

Public Trustee as Executor or Administrator. 9. If any person by his will whether before or after the Appointment

. < . . • * . . < » . . . * « . o t r u b l i c

commencement of this Act appoints the Public Trustee or the Trustee as Curator of the estates of deceased persons as executor or to NO.C4654S.9. administer his estate the Public Trustee may apply for probate of the will and may be granted probate thereof.

10. (1) Any person to whom a grant of administration with the will annexed of the estate of a deceased person might be made may, instead of himself applying therefor, authorize the Public Trustee to apply therefor, and administration with the will annexed may be granted to the Public Trustee upon his own application when so authorized.

(2) Any person to whom a grant of administration of the estate of any intestate might be made may, instead of himself applying therefor, authorize the Public Trustee to apply therefor, and administration of the estate of the intestate may be granted to the Public Trustee upon his own application when so authorized.

11. (1) Any person or persons named expressly or by implication as executor or executors who would be entitled to obtain a grant of probate of the will of any testator without reserving leave to any other person to apply for a grant of probate may, notwithstanding any law or custom to the contrary, instead of himself or themselves applying therefor, authorize the Public Trustee to apply for a grant of probate of such will in the same manner as if the Public Trustee had originally been named in such will in the place of the person or persons authorizing such application, and probate of such will may be granted to the Public Trustee upon his own application when so authorized unless the testator by his will has expressed his desire that the office of executor should not be delegated or that the Public Trustee should not act in the trusts of his will.

(2) Any person or persons named expressly or by implication as executor or executors who would be entitled to obtain a grant of probate of the will of any testator jointly with any other person or persons may, notwithstanding any law or custom to the contrary, instead of himself or themselves applying therefor, authorize the Public Trustee to apply for a grant of probate of such will, either alone with leave reserved to any other person or persons to come in and prove or jointly with any other person or persons entitled to apply for a grant of probate, in the same manner as if the

Power to person entitled to administration with the will annexed to authorize Public Trustee to obtain same &c. No. 4755 s. 2

Power to person entitled to administration to authorize Public Trustee to obtain same &c.

Power to persons entitled to probate alone to authorize Public Trustee to obtain same &c. No. 4755 s. 3.

Power to persons entitled to probate jointly with others to authorize Public Trustee to obtain same &c.


Public Trustee had originally been named in such will in the place of the person or persons authorizing such application, and such application may be granted unless the testator has by his will expressed his desire that the office of executor should not be delegated or that the Public Trustee should not act in the trusts of his will.(a)

Power to executor administrator or trustee to appoint Public Trustee to act in his stead &c. No. 4755 s. 4.

12. Any executor administrator or trustee may appoint the Public Trustee to act as executor administrator or trustee in his stead, and the Public Trustee if so appointed by power of attorney under seal filed in accordance with any law now or hereafter in force providing for the filing of powers of attorney may act within the scope of the authority conferred upon him 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, and after the filing of any such power as aforesaid and before the registration of the death of the principal or of the revocation of the authority given by him in accordance with the law now or hereafter in force in that behalf every act of the Public Trustee within the scope of the authority conferred shall in favour of any person who deals with the Public Trustee in good faith and without notice of the death of the principal or of his revocation of the authority be valid and effectual notwithstanding such death or revocation.(fl)

Administration of estate of deceased person. No. 4654 s. 11; No. 4755 s. 2(3), No. 4895 S. 2.

13. (1) The Public Trustee may apply for administration of the estate of any person who has died whether before or after the commencement of this Act either within Victoria or elsewhere possessed of or entitled to property within Victoria.

(2) No such administration shall be granted unless the court or registrar is satisfied that no grant of probate or of administration relating to the estate within Victoria of such deceased person has been made to any person capable or entitled at the date of such application of acting or to act as executor or administrator (as the case may be) and that no person entitled and within Victoria is capable of taking and ready to take such grant. This sub-section shall not apply where the Public Trustee has been authorized under section ten of this Act to apply for administration of the estate.

Public Trustee to be preferred to creditor as administrator in certain c»K3. No. 4654 s. 12.

14. The Public Trustee shall be entitled to a grant of administration of the estate of a deceased person in preference to any creditor applying in that capacity for administration thereof unless the creditor proves to the satisfaction of the court or the registrar that it will be more beneficial to the estate that it should be administered by such creditor.

(a) See Trustee Act 1958, section 47.


15. (1) In any case in which administration of the land or goods or estate of any deceased person has whether before or after the commencement of this Act been granted to any person as a creditor of the deceased the Public Trustee may, upon affidavit stating any circumstances from which it appears that it would be beneficial to any person who is or may be interested in such estate that such administrator should be removed and that such estate should be administered by the Public Trustee, apply to the court for the removal of such administrator and for administration of the land or goods or estate left unadministered of such deceased person.

(2) If any creditor who whether before or after the commencement of this Act has taken out administration in that capacity of the land or goods or estate of any deceased person has land vested in him or goods or other property in his hands foi at least twelve months after payment of creditors or for at least three years after the grant of administration whether creditors have been paid or not, the Public Trustee may apply to the court for the removal of such administrator and for administration of the land or goods or estate left unadministered of such deceased person.

(3) The court may grant or refuse any such application or may adjourn the hearing thereof for the purpose of receiving further evidence orally or by affidavit on behalf of the administrator or of the Public Trustee, and may make such order as to payment of costs by the parties to such application personally or out of the land goods or estate to be administered as to the court seems fit.

(4) Before making any such application the Public Trustee shall give seven days' notice thereof to the administrator, unless by reason of the absence of such administrator from Victoria or for other reasons disclosed upon affidavit the court thinks fit to hear or deal with such application although no such notice has been given.

(5) Upon any such application (and whether administration is granted or refused to the Public Trustee) or upon motion without notice the court may order that the administration bond entered into by the administrator shall be assigned to the Public Trustee; and the Public Trustee shall thereupon be entitled to sue on the said bond in his own name as if the same had been originally given to him, and shall be entitled to recover thereon as trustee for all persons interested the full amount recoverable in respect of any breach of the condition of the said bond.

(6) An administrator removed under this section shall from the date of such removal cease to be liable as such for acts and things done after that date.

(7) Upon the grant to the Public Trustee of administration under this section the property and rights vested in and the liabilities properly incurred in the due administration of the

Application for administration of estate unadministered by creditor. No. 4654 s 13.

Application for administration where assets unclaimed.

Grant or refusal of application.

Notice of application to be given to administrator.

Assignment of administration bond to Public Trustee.

Effect of grant of application.


estate by the administrator removed shall become and be vested in and transferred to the Public Trustee who shall have the same privileges rights powers duties discretions and liabilities as if administration had been granted to him originally.

Power to executor administrator trustee receiver or guardian to appoint Public Trustee to discharge duties &c. No. 4755 s. 5.

16. Any executor administrator trustee or receiver or the guardian of any infant may with the consent of the court appoint the Public Trustee to perform and discharge all the acts and duties of such executor administrator trustee receiver or guardian (as the case may be) and the Public Trustee shall have power to perform and discharge all such acts and duties accordingly and in every such case the executor administrator trustee receiver or guardian so appointing the Public Trustee shall be released from liability in respect of all acts done by or omitted to be done by the Public Trustee acting under such appointment.

Election by Public Trustee to administer intestate's estate under £1,000 in value. No. 4755 s. 6; No. 5286 s. 8, No. 5523 s . 3 ( l ) , No. 5753 s. 2.

Election by Public Trustee to adminster estate of person leaving will of estate under £1.000 in value.

17. (1) Where any person has heretofore died or hereafter dies intestate whether in Victoria or elsewhere leaving property in Victoria the gross value of which as estimated by the Public Trustee does not at the time of the election hereinafter mentioned exceed One thousand pounds, and no grant of administration has been made to any person, the Public Trustee may, in any case where he is entitled to a grant of administration (including any case in which an authority has been given to him under section ten of this Act), in lieu of applying therefor, file in the office of the Master of the Supreme Court an election in writing—

(a) setting forth— (i) the full name residence and occupation

(so far as then known to him) of the intestate at the date of his death;

(ii) the particulars of the property of the intestate so far as then known to him; and

(iii) the date of the death; and

(b) electing to administer the estate of the intestate.

(2) Where any person has heretofore died or hereafter dies whether in Victoria or elsewhere leaving by will property in Victoria the gross value of which as estimated by the Public Trustee does not at the time of the election hereinafter mentioned exceed One thousand pounds and no grant of probate of such will or of administration with such will annexed has been made to any person the Public Trustee may, in any case where he is entitled to a grant of probate of such will or of administration with such will annexed (including any case in which an authority has been given to him under section ten or sub-section (1) of section


eleven of this Act) in lieu of applying therefor, file in the office of the Master of the Supreme Court an election under his hand and seal—

(a) setting forth— (i) the full name residence and occupation (so

far as then known to him) of the testator at the date of his death;

(ii) the particulars of the property of the testator so far as then known to •him; and

(iii) the date of the death; (b) stating—

(i) that after due inquiry he believes that the document annexed to such election is the testator's last will; and

(ii) that such will has been validly executed according to the law governing the execution of wills; and

(c) electing to administer the estate of the testator according to the provisions of such will.

(3) No election shall be filed pursuant to either of the last two preceding sub-sections until—

(a) the expiration of a period of one month after the date of death; and

(b) the expiration of a period of fourteen days after the publication in a daily newspaper circulating in the neighbourhood of the last place of residence of the deceased of a notice of intention to file such election—

unless the consent in writing of every person who may be entitled to a grant of probate or administration has first been lodged with the Public Trustee.

(4) No election shall be filed pursuant to either of the said sub-sections in any case in which a caveat against any application for probate or administration has been lodged with the registrar of probates and administrations and has not expired or been withdrawn.

(5) Upon the filing of such election as aforesaid the Public Trustee shall be deemed to be administrator of the estate or executor of the will of the deceased in all respects as if administration or probate had been granted to him in the ordinary way, and the filing of the election shall be deemed the grant of administration or probate (as the case requires) and any revocation of the election shall be deemed the revocation of administration or probate (as the case requires).

(6) Within one month after the filing of any such election as aforesaid the Public Trustee shall cause to be published in the Government Gazette a notice to the effect that he has made such election and such notice shall be conclusive evidence that he is entitled to administer the estate to which the election relates.

Time for filing election.

Election not to be filed where caveat lodged.

Election to administer estate or will deemed grant of administration or probate.

Publication of notice of election.


Grant of probate or administration to supersede election.

Application for grant of probate or administration where estate proves to be over £1,400 in value.

Revocation of election &c. in certain cases.

Power to Public Trustee to pay over balance to proper officer of deceased's domicile. No. 4654 s. 14

(7) Notwithstanding the filing of any such election any person may apply to the Court for a grant of probate or administration (as the case may be) and such application may be granted upon such terms and conditions as the court thinks fit, and thereupon such election shall be deemed to be revoked and superseded by such grant.

(8) If after filing any such election as aforesaid the gross value of the property to be administered is found to exceed the sum of One thousand four hundred pounds the Public Trustee shall as soon as practicable file in the office of the Master of the Supreme Court a memorandum under his hand stating the fact and shall then apply in the ordinary manner for a grant of probate or administration (as the case requires).

(9) If after filing any such election as aforesaid the Public Trustee finds—

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

(b) that the document annexed to such election as the testator's last will is not such last will but has been superseded by a later will which is believed to be the testator's last will;

(c) that the deceased who was believed to have died leaving a will has died intestate and that the document annexed to such election as the. testator's last will has no testamentary validity or effect; or

(d) that for any reason it is undesirable that the Public Trustee should continue to administer such estate—

the Public Trustee shall as soon as practicable file in the office of the Master of the Supreme Court a memorandum under his hand stating the facts and revoking such election, whereupon such election shall be deemed to be revoked accordingly; and the Public Trustee shall, subject to this section, be at liberty to file another election in accordance with the facts aforesaid and the provisions of this section shall apply to such other election as if it had been the election which had originally been filed hereunder.

18. (1) When the Public Trustee has been granted probate of the will or administration of the estate in Victoria of any person who was at the time of his death domiciled in a State or Territory of the Commonwealth of Australia other than Victoria or in the Dominion of New Zealand and whose estate in such State Territory or Dominion is being administered by the proper officer of such State Territory or Dominion, the Public Trustee may pay or cause to be paid to such proper officer the balance of the estate after payment of creditors and the fees and charges provided for in this Act without seeing to the application of such balance and without incurring any liability in regard to such payment to such proper officer.


(2) (a) When the proper officer of any State or Territory of the Commonwealth of Australia other than Victoria or of the Dominion of New Zealand is in such State Territory or Dominion administering the estate of any deceased person and the Public Trustee has been granted probate of the will or administration of the estate in Victoria of such deceased person, if the deceased at the time of his death was domiciled in Victoria the Public Trustee may receive from such proper officer the balance of the estate of the deceased in such State Territory or Dominion after payment of creditors and all fees and charges provided for under the law of such State Territory or Dominion.

(b) Such balance shall when so received form part of the estate of the deceased and shall be dealt with according to the law of Victoria, but no fee shall be charged pursuant to this Act in relation to such balance unless the Governor in Council so directs in any special case.

(3) In this section— includes Public Trustee or Public other officer discharging duties to those discharged in Victoria by

Where deceased domiciled in Victoria power to Public Trustee to receive balance from proper officer of another State &c.

Proper officer" Curator or corresponding

Interpretation.

" Proper officer."

the Public Trustee. " Territory" includes any territory governed by the *• Territory.-

Commonwealth of Australia under a Trusteeship agreement.<a)

19. (1) Where the Public Trustee obtains administration of Distribution „ , . . . . . . . . . . . of estate of

the estate of any deceased illegitimate person who died intestate jjf"^^ l e a v i n g intestate.

(a) a widow or widower but no mother child or other N0-46549-16,

lineal descendant; or (b) no widow widower mother child or other lineal

descendant— if there are any net proceeds of such estate after providing for the amount to which the widow or widower (if any) is by law entitled the Public Trustee shall report the facts to the Treasurer.

(2) The Treasurer shall thereupon obtain an order from the Governor in Council directing how such net proceeds shall be appropriated and stating the persons to whom the same shall be paid and the amounts or proportions so payable and what (if any) amount or proportion shall be paid into the Consolidated Revenue.

20. (1) Every estate in respect of which probate or Duties payable on

administration is granted to the Public Trustee shall be liable to SfmSstered pay the same duty as would be payable in respect of such estate ^J1^1'0

under Part V. of the Administration and Probate Act 1958 if NaS46S4s.i8. probate or administration in respect thereof were granted to a person other than the Public Trustee.

(a) See Commonwealth Acts Interpretation Act 1901-50 section 17.


(2) Such duty shall within one year after the grant of the probate or administration to the Public Trustee be passed to the credit of the Consolidated Revenue on an account to be certified by him, and shall be calculated upon the balance to the credit of such estate after the satisfaction of all debts of which he at that time has notice.

(3) If probate of any will or administration of the estate of any deceased person upon whose estate such duty has been paid by the Public Trustee is at any time afterwards granted no further duty shall be payable thereon.

(4) Save as aforesaid, nothing in the said Part V. except section one hundred and thirty of the said Act shall be deemed to apply to the Public Trustee or to any estates administered by him.

Oram of probate or administration notwithstanding appointment of Public Trustee. No. 4654 s. 19.

On such grant Public Trustee's duties and liabilities to cease.

21. (1) Notwithstanding any grant to the Public Trustee of probate of the will or of administration of the estate of any person, probate of the will or administration of the estate of such person may in such manner and subject to such limitations or conditions as the court thinks fit be granted to any person who applies therefor.

(2) No such application shall be made until seven days after notice in writing of intention so to apply has been left at the office of the Public Trustee.

(3) Immediately on any grant of probate or administration under this section—

(a) all the interest powers rights and duties of the Public Trustee in regard to the estate and all liabilities of the Public Trustee under any contract or agreement entered into by him in relation to the estate oi any part thereof shall cease; and

(b) (subject to and on the allowance and payment of the necessary outlay disbursements costs fees charges and expenses of the Public Trustee in relation to such estate, including all costs of appearing on the application for probate or administration and consequent thereon) such portion of the estate as is left unadministered by the Public Trustee shall vest in the executor or administrator obtaining such grant.

Public Trustee as sole trustee. No. 46S4 s. 20.

Public Trustee as Trustee. 22. Notwithstanding anything in any Act or the terms of

any trust as to the number of trufees the Public Trustee may unless expressly prohibited by the terms of the trust be appointed or become sole trustee.


23. (1) In the administration of any trust estate as trustee Adwaoor thereof the Public Trustee may act with an advisory trustee or NO. 4654 s. 21. advisory trustees to the extent herein provided.

(2) An advisory trustee or advisory trustees may be appointed—

(a) by order of the court made on the application of any beneficiary or of any person on whose application the court would have power to appoint a new trustee;

(b) by the trust instrument; or (c) by any person having power to appoint new trustees.

(3) No such advisory trustee shall be liable as such for any act or thing done by the Public Trustee whether with or without the advice of any such advisory trustee.

(4) Where the Public Trustee acts with advisory trustees the trust property shall be vested in the Public Trustee, and he shall have the sole management and administration of the estate and its trusts as fully and effectually as if he were the sole trustee:

Provided that— (a) the Public Trustee may consult the advisory trustees

on any matter relating to the trusts or the estate; and

(b) the advisory trustees may advise the Public Trustee on any matter relating to the trusts or the estate.

(5) In cases of difference between the Public Trustee and the advisory trustees either the Public Trustee or the advisory trustees may submit the matter in dispute in a summary manner to a judge of the court in chambers whose decision thereon shall be final and shall bind both the Public Trustee and the advisory trustees.

(6) No person dealing with the Public Trustee shall be concerned to inquire as to the concurrence or otherwise of the advisory trustees or be affected by notice of the fact that the advisory trustees have not concurred.

(7) The power of appointing a new advisory trustee when exercisable by the continuing advisory trustees shall be exercised by them alone, but the Public Trustee shall have the same power of applying to the court for the appointment of a new advisory trustee as is possessed by any other person.

(8) The regulations may provide for the remuneration, subject to the provisions of the trust instrument (if any), of advisory trustees out of the estate.

1958. Public Trustee. No. 6350

24. (1) The Public Trustee may, whether or not the number of trustees has been reduced below the original number, be appointed to be custodian trustee of any trust—

(a) by order of the court made on the application of any beneficiary or of any person on whose application the court may order the appointment of a new trustee;

(b) by the trust instrument; or (c) by any person having power to appoint new trustees.

(2) Upon such appointment if the Public Trustee consents to act—

(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 the exercise of any power or discretion exercisable by the trustees under the trust shall remain vested in the trustees other than the custodian trustee (which trustees are hereinafter referred to as the managing trustees);

(c) as between the custodian trustee and the managing trustees, and subject and without prejudice to the rights of any other persons, the custodian trustee shall have the custody of all securities and documents of title relating to the trust property, but the managing trustees shall have free access thereto and be entitled to take copies thereof or extracts therefrom;

(d) the custodian trustee shall concur in and perform all acts necessary to enable the managing trustees to exercise their powers of management or any other power or discretion vested in them (including the power to pay money or securities into court) unless the matter in which he is requested to concur is a breach of trust or involves a personal liability upon him in respect of calls or otherwise, but unless he so concurs the custodian trustee shall not be liable for any act or default on the part of the managing trustees or any of them;

(e) all sums payable to or out of the income or capital of the trust property shall be paid to or by the custodian trustee: Provided that the custodian trustee may allow the dividends and other income derived from the trust property to be paid to the managing trustees or to such person as they direct or into such bank to the credit of such person as


they direct, and in such case shall be exonerated from seeing to the application thereof and shall not be answerable for any loss or misapplication thereof;

(/) the power of appointing new trustees, when exercisable by the trustees, shall be exercisable by the managing trustees alone, but the custodian trustee shall have the same power of applying to the court for the appointment of 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 and acting upon the faith of any written statement by the managing trustees as to any birth death marriage or other matter of pedigree or relationship or other matter of fact upon which the title to the trust property or any part thereof may depend, nor for acting upon any legal advice obtained by the managing trustees independently of the • custodian trustee;

(h) the court, on the application of either the custodian trustee or of any of the managing trustees or of any beneficiary to terminate the custodian trusteeship, and oon proof to its satisfaction that it is the general wish of the beneficiaries or that on other grounds it is expedient that the custodian trusteeship should be terminated, may make an order for that purpose, and the court may thereupon make such vesting orders and give such directions as under the circumstances seem to the court to be necessary or expedient;

(i) in cases of difference between the custodian trustee and the managing trustees either the custodian trustee or the managing trustees may submit the matter in dispute in a summary manner to a judge of the court in chambers whose decision thereon shall be final and shall bind both the custodian trustee and the managing trustees.

Uncared-for Property.

25. (1) In any case where— (o) the owner of any real or personal property in Victoria Power to

is absent from Victoria and has no agent or authorize attorney in Victoria with authority to take »exerdsT'* possession of and administer such property; or taeres£ecpt°oTrs

(ft) it is not known who is the owner of any such property**, property; or NO-MMS.*

1958. Public Trustee. No. 6350

(c) it is not known where the owner of any such property is; or

(d) it is not known whether the owner of any such property is alive or dead; or

(e) the owner of any such property is dead and has left executors or administrators whose whereabouts are unknown—

the court or a judge of the court in chambers may, on the application ex parte of the Public Trustee and on being satisfied that the exercise of the powers hereinafter mentioned is advisable in the interests of the owner of the property or in the interests of any other person, make an order, on such terms and conditions as the court or judge thinks fit, authorizing the Public Trustee to exercise all or any of the following powers (that is to say):—

(i) To take possession of the said property; (ii) To bring any action or other proceeding relating to

the said property and to defend compromise confess or submit to judgment in any or all actions claims demands and proceedings touching the said property;

(iii) To sell call in convert into money dispose of or otherwise deal with the said property or any part thereof;

(iv) To lease the said property or any part thereof for a term not exceeding seven years;

(v) To receive sue for and recover any moneys owed to the owner of the said property;

(vi) To insure any buildings or other property of the said owner against loss by fire or other cause;

(vii) To pay rates taxes and other outgoings payable in respect of the said property and to borrow money on the security of the said property for that purpose;

(viii) To maintain and repair the said property and to borrow money on the security of the said property for that purpose;

(ix) To borrow money on the security of the said property in order to comply with any law order or requirement of a competent authority touching the said property;

(x) To invest moneys comprising the said property or received by him in *he exercise of any of the foregoing powers in any manner in which trust moneys may be invested;

(xi) To pay out of moneys received by him in the exercise of any of the foregoing powers any debts owing by the owner of the said property;


(xii) To apply moneys received by him in the exercise of any of the foregoing powers in the maintenance education or advancement of the wife husband children parents brothers sisters or other dependants of the owner of the said property or in the payment of the reasonable medical or funeral expenses of any of those persons;

(xiii) To complete and carry out in such manner as he thinks fit any valid subsisting contract affecting the said property or discharge any obligation attached thereto at the time the said property comes into his possession or under his control;

(xiv) To execute for and on behalf of the said owner and where he thinks fit, in the name of the said owner all deeds and other instruments and documents which may be necessary for any of the purposes aforesaid; and

(xv) To do such other acts matters and things in relation to the property or affairs of the owner of the property as the court or judge thinks proper.

(2) As soon as practicable after the making of any order Public under sub-section (1) of this section the Public Trustee shall advertise cause to be published in the Government Gazette and in some ™d«e&cl newspaper generally circulating in the district in which the property in question is situated a notification of the making of the order and of his intention to exercise the powers conferred on him thereby.

(3) All expenses incurred by the Public Trustee in the Expenses to exercise of the powers conferred on him by or pursuant to this ot property, section shall be a charge upon the property of the said owner and shall bear interest at the rate of Five per centum per annum from the date at which they are incurred until recovered by the Public Trustee, and the said charge shall rank next in order of priority after any mortgage or charge to which the property was subject when it came into the possession or under the control of the Public Trustee.

(4) All moneys received by the Public Trustee in the exercise Moneys to be of the powers conferred on him by or under this section shall for owner, after payment thereout of all moneys authorized to be expended by him be held by him in trust for the owner of or person beneficially entitled to the property in question.

(5) In respect of any sale lease or other disposition of any Astosaie real or personal property made by the Public Trustee in the property, exercise of any power conferred on him by or under this section the Public Trustee shall have all the same powers as if he were the owner of the said property and all deeds and other instruments


Rescission of order on application of owner &c

Oi iler &c. not allccled by mistake of fact. .

and documents executed by him in the exercise of any of the said powers shall be registered and shall have effect in all respects as if executed by the owner of the said property.

(6) The owner of any property in respect of which any order has been made under sub-section (1) of this section or any person having any interest in the said property or in any part thereof may, at any time after the making of the order, after giving fourteen days notice to the Public Trustee, make application to the court or a judge of the court in chambers to rescind the said order in whole or in part and the same may thereupon be rescinded in whole or in part accordingly on such terms as the court or judge thinks fit, but no such rescission shall affect any charge acquired by the Public Trustee under this section or the validity of any act matter or thing done by the Public Trustee during the continuance of the said order and in pursuance thereof.

(7) No order made under this section and no act matter or thing done in pursuance of any such order shall be or become invalid or inoperative by reason only that the order was made or the act matter or thing done under a mistake of fact or that the owner of the property was dead at the time when the order was made or has died since the making thereof or because of any disposition of the said property made by the owner thereof during the subsistence of the order.

Power to Public Trustee to distribute assets without reuard to claims of creditors after notice and failure of creditors to take proceedings. No. 4654 s. 23.

Distribution after Notice in certain Cases.

26o (1) Whenever Public Trustees refuses to recognize in whole or in part the claim of any person who claims to be a creditor against the estate of any deceased person he may give notice in writing of such refusal to the person so claiming.

(2) If such person does not within three months after the receipt of such notice institute any proceedings to enforce such claim it shall be lawful for the Public Trustee to distribute the assets of such deceased person without regard to the claim or to so much thereof as the Public Trustee has by the said notice refused to recognize, and thereupon the right of such person to recover the amount of the claim or the part thereof which the Public Trustee has by the said notice refused to recognize shall be absolutely barred.

(3) For the purposes of this section a notice may be served on any such person by posting it to him in a registered letter addressed to the address given in the claim, and every such notice shall be deemed to have been received by such person in the ordinary course of post unless the Public Trustee has notice to the contrary before the distribution of the assets.


27. (1) Where the Public Trustee has been granted probate Power to of a will or administration of an estate and has been informed of Trustee to the existence at any time of a person who if he had survived the Si^'here testator or intestate would have been entitled to a legacy under S ^ , , the will or to the whole or a distributive share of the estate and ^fnSS! such person has not nor has any person claiming through him NO.4654S.25. or as one of his issue made a claim in respect of such legacy estate or share within three years after the grant of probate or of administration the Public Trustee after advertising as in this section directed may, without being under any liability to such person or to any person claiming through him or to his issue, distribute the estate as if such first-mentioned person had predeceased the testator or intestate without issue.

(2) The Public Trustee shall before making any such Advert Ise-distribution make a report to a judge of the court setting out the Inems' material facts relating to the matter and obtain a direction from the judge as to the form and number of the advertisements to be inserted and the places in which they are to be published and fixing i time after the insertion of the last of such advertisements at the expiration of which such distribution may be made.

(3) Nothing in this section shall prejudice the right of any savini. person to follow the assets or any part thereof into the hands of the person or persons who have received the same.

(4) This section shall not be construed as in derogation secn<>n.noi in from the provisions of section thirty-three of the Trustee Act 1958. tmmrnZee

DIVISION 2.—MANAGEMENT OF ESTATES OF PATIENTS AND INFIRM PERSONS.

Certification of Infirm Persons.

28. (1) If it is proved to the satisfaction of the Public certification Trustee that any person is by reason of senility disease illness persons.

or physical or mental infirmity incapable of managing his affairs H";^^ ' 2 6 ' the Public Trustee may sign and seal a certificate in the form in s.s<'n. the Second Schedule or to the like effect that such person is an § °jj;JIe infirm person for the purposes of this Act.

(2) The Public Trustee shall not sign and seal any such certificate with respect to any person unless not more than fourteen clear days before such signing and sealing two medical practitioners have examined such person apart from each other and separately signed a certificate with respect to such person in the form in the Third Schedule or to the like effect and such Jhird^ certificates have been produced to the Public Trustee.

(3) The Public Trustee shall not be precluded from signing Afsu>|roundt and sealing a certificate under this section nor shall any such certificate o* certificate be deemed invalid by reason only that the certificates lncaPaclt»-

VOL. VII.—10

http://no.4654s.25

.290 1958. Public Trustee. No. 6350

Certification that person is not an infirm person.

Fifth Schedule.

signed by the medical practitioners and produced to the Public Trustee purport to certify that the person is incapable of managing his affairs for different reasons or on different grounds.

(4) The Public Trustee may if he thinks fit examine such person and take such other evidence either orally or by statutory declaration as he thinks fit.

(5) Any person with respect to whom the Public Trustee has signed and sealed a certificate as aforesaid or one of the next of kin of such person may within three months after such certificate has been so signed and sealed apply to a judge of the court in chambers in a summary manner for an order directing the Public Trustee to sign and seal a certificate in the form in the Fifth Schedule certifying that such person is not an infirm person for the purposes of this Act and the judge may make or refuse to make such an order or may make such other order in the matter as he thinks fit.

Certification. that person has ceased lo be an infirm person. No. 4654 s. 27.

Fourth Schedule.

Fifth Schedule.

Fourth Schedule.

Fifth Schedule.

Fifth Schedule.

29. (1) If a medical practitioner signs a certificate in the form in the Fourth Schedule or to the like effect and such certificate is produced to the Public Trustee the Public Trustee shall make such inquiries and take such evidence (whether orally or by statutory declaration) as he thinks fit, and if the Public Trustee is of opinion that the infirm person referred to in such certificate is no longer incapable of managing his affairs as aforesaid the Public Trustee shall sign and seal a certificate in the form in the Fifth Schedule or to the like effect that such person has ceased to be an infirm person for the purposes of this Act.

(2) If the Public Trustee on the production to him of a certificate in the form in the Fourth Schedule or to the like effect signed by a medical practitioner refuses or fails within a reasonable time to sign and seal a certificate in the form in the Fifth Schedule or to the like effect the infirm person concerned or one of his next of kin may apply to a judge of the court in chambers in a summary way for an order directing the Public Trustee to sign and seal a certificate in the form in the Fifth Schedule and the judge may make or refuse to make such an order or may make such other order in the matter as he thinks fit.

(3) When the Public Trustee pursuant to this Act signs and seals a certificate in the form in the Fifth Schedule or to the like effect that a person is not or has ceased to be an infirm person such person shall thereupon cease to be an infirm person for the purposes of this Act.

Medical certificate founded only on facts communicated by others insufficient. No. 46S4 a. 28.

30. (1) No person shall be certified by the Public Trustee as being an infirm person or as having ceased to be an infirm person on the production of any certificate of a medical practitioner which purports to be founded only upon facts communicated to the medical practitioner by others.


(2) A medical practitioner shall not sign a certificate under Persons or for the purposes of this Division if he is— From'siLing

, v , . , . „ , medical

(a) a relative or guardian of such person; or certificate. (b) a partner principal assistant or relative of any other

medical practitioner signing a corresponding certificate.

31. (1) Every medical practitioner who signs any certificate offences as to under or for the purposes of this Division— certificates.

(a) contrary to the provisions of this Division; or No.46Ms.29. (b) without having seen and personally examined the

person to whom it relates, at the time and in the manner specified in such certificate, for the purpose of ascertaining the condition of such person to the best of his knowledge and power—

shall be liable to a penalty of not more than One hundred pounds.

(2) Every medical practitioner who falsely states or certifies anything in any certificate or statement under or for the purposes of this Division and any person who signs any certificate under or for the purposes of this Division in which he describes himself as a medical practitioner not being such shall be liable to a penalty of not more than One hundred pounds.

Estates of Patients and Infirm Persons. 32. (1) Subject to and in accordance with this Act and the General

regulations and the general orders of the court and any special powers of

order or direction of the court, the Public Trustee shall undertake the general care protection and management of the estates of all patients and infirm persons in Victoria.

(2) It shall be the duty of the Public Trustee subject to this Act to take possession and care of recover collect preserve and administer the property and estates of all patients and infirm persons in Victoria.

PO Public Trustee as to estates of

fiatients and nfirm persons.

No. 4654 8. 30.

3 3 . (1) Subject to and in accordance with this Act and the regulations and the general orders of the court and any special order or direction of the court, the Public Trustee shall undertake the general care protection and management of the estates of aJl persons receiving treatment under section two hundred and seven of the Mental Hygiene Act 1958.

(2) For the purposes of this section the powers authorities and duties vested in and imposed upon the Public Trustee by or under this or any other Act with respect to the estates of patients are hereby vested in and imposed upon the Public Trustee with respect to the estates of persons receiving treatment under the said

Powers and duties of Public Trustee with respect to estates of persons receiving treatment undei Mental Hygiene Act.

No. 4654 s. 31; No. 4963 8 . 2 ( 2 ) .

http://No.46Ms.29


section two hundred and seven, and the provisions of this and any other Act with respect to the Public Trustee and the estates of patients shall so far as applicable and with such adaptations as are necessary extend and apply accordingly.

Poê„7Lasf to 34. In addition to any other powers and duties conferred or properly of . . . J . ,r

P0firrnt5and imposed on him by or under this or any other Act the Public i£rwns. Trustee may subject to this Act with respect to the estates of NO. 4654 s. 32. patients and infirm persons—

(a) collect receive and recover income of and moneys due or which become due to and any compensation or damages for injury to the estate or person of any such patient or infirm person;

(b) invest any moneys in any security in which trustees may by law invest;

(c) demise land at such rent and on such conditions as the Public Trustee thinks fit for any term not exceeding five years or, with the consent of the court, for any longer term;

(d) exercise to such extent and in such manner as the Public Trustee thinks proper any power of leasing vested in any such patient or infirm person;

(e) surrender any lease, accept any lease, accept the surrender of any lease or renew any lease;

(/) bring land under the provisions of the Transfer of Land Act 1958;

(g) sell exchange partition or convert into money any property;

(h) mortgage or charge any property;

(/) pay any debts and settle adjust or compromise any demand made by or against the estate and discharge any encumbrance on the estate;

(/) carry on so far as appears desirable any trade profession or business which any such patient or infirm person carried on;

(k) agree to any alteration of the conditions of any partnership into which any such patient or infirm person has entered or to a dissolution and distribution of the assets thereof;

(/) bring and defend actions and other legal proceedings in the name of any such patient or infirm person;


(m) on behalf of any such patient or infirm person and, if he thinks fit, in his name execute and sign deeds instruments and other documents;

(n) complete any contract for the performance of which any such patient or infirm person was liable, or enter into any agreement terminating liability thereunder;

(o) pay such sum or sums for the maintenance of any such patient or infirm person (and, in the event of his death, for funeral expenses) and for the maintenance of his wife or any child parent or other person dependent upon him and for the maintenance and education of his children as to the Public Trustee seems expedient and reasonable;

(p) generally, do all acts and exercise all powers with respect to the estate as effectually and in the same manner as the patient or infirm person himself might have done while sane or not infirm; and

(q) do all matters necessary or incidental to the performance of any of the above-mentioned matters and apply any moneys from the estate which it is necessary to apply for the purposes of this Act.

35. A patient or infirm person and his heirs executors administrators next of kin devisees legatees and assigns shall have the same interest in any moneys or other property arising from or received in respect of any sale mortgage exchange partition or other disposition under the powers of Division two of Part II. of this Act which have not been applied under such powers as he or they would have had in the property the subject of the sale mortgage exchange partition or disposition if no sale mortgage exchange partition or disposition had been made.

For the purposes of this section moneys arising from the compulsory acquisition resumption or purchase under any Act of property of a patient or infirm person shall be deemed to be moneys arising from the sale of that property under the powers of the said Division.

Interest of patient or infirm person &c. in property not to he altered bv sale or oilier disposition of. property. No. SS23 s. 4.

36. Notwithstanding anything in this or any other Act the Realization of Public Trustee so far as is consistent with the due performance patients in

of his duties shall not, unless with the previous approval in hocuesesno8r

writing of a law officer given in each particular case, realize any wards!"8

portion of the estate of any patient (other than an infirm person) NO.46M«.3J. received into or detained in or ordered to be received into or detained in any receiving house or receiving ward under the Mental Hygiene Act 1958 unless such person is transferred to a mental hospital.


37. (1) Every sum of money and other consideration paid under this Division by the Public Trustee in the nature of or as a fine or premium upon renewal of a lease and all reasonable charges incident thereto may be paid out of the estate of the patient or infirm person concerned or may with interest be a charge upon the leasehold premises.

(2) Every lease renewed under this Division shall be subject to the same trusts charges incumbrances and dispositions as the lease surrendered was subject to or would have been subject to if the surrender had not been made.

(3) All fines premiums sums of money and other consideration payable under this Division to the Public Trustee upon renewal of a lease shall after deduction of all necessary incidental charges and expenses be paid to the Public Trustee and be applied for the benefit of the patient or infirm person concerned as the Public Trustee thinks fit; but upon the death of the patient or infirm person all such moneys as have arisen by such fines premiums sums of money or other consideration, or so much thereof as then remains unapplied for his benefit, shall as between the representatives of his real and personal estate be considered as real estate unless the patient or infirm person is tenant for life only and then the same shall be considered as personal estate.

38. (1) Where a power is vested in a patient or infirm person for his own benefit or the consent of a patient or infirm person is necessary to the exercise of a power, and such power or consent is in the nature of a beneficial interest in the patient or infirm person and it appears to the Public Trustee to be for the benefit of the patient or infirm person and also to be expedient that the power should be exercised or the consent given (as the case may be), the Public Trustee may on behalf of the patient or infirm person and in his name, if the Public Trustee thinks fit, exercise the power or give the consent (as the case may be) in such manner as the Public Trustee thinks fit.

(2) Where a power is vested in a patient or infirm person in the character of a trustee or guardian, or the consent of a patient or infirm person to the exercise of a power is necessary in the like character or as a check upon the undue exercise of the power, and it appears to the Public Trustee to be fit and expedient that the power should be exercised or the consent given (as the case may be), the Public Trustee may on behalf of the patient or infirm person and in his name, if the Public Trustee thinks fit, exercise the power or give the consent (as the case may be) in such manner as the Public Trustee thinks fit.

As to renewals of leases. No. 46S4 s. 34.

Exercise of power vested in patient or infirm person for his own benefit &c No. 4654 s. 35.

Exercise of power in character of trustee or guardian.


39. (1) Where under this Division the Public Trustee A^?wntrnent

exercises on behalf of a patient or infirm person a power of trustees under appointing new trustees vested in the patient or infirm person £ ave eiTect of

the person or persons who after and in consequence of the bycom?81" exercise of the power is or are the trustee or trustees shall have No. 4654 s. 36. all the same rights and powers as he or they would have had if the order had been made by the court under any law now or hereafter in force relating to trusts or if he or they had been appointed by a decree of the court in a suit duly instituted.

( 2 ) The court may in any such case, where it seems to it to be for the benefit of the patient or infirm person and also expedient, m a k e any and every such order respecting the trust property as might have been m a d e in the same case under the provisions of any law now or hereafter in force relating to trusts on the appointment thereunder of a new trustee or new trustees.

40. (1) The Public Trustee shall not under this Division public Trustee sell any freehold or leasehold lands exceeding One thousand "and over pounds in value forming part of the estate of any patient or vaiu wfthont infirm person except with the leave of a judge of the court to be 2ourf.of obtained on an application in chambers in a summary way. NO. 4654 s. 37.

(2) The Public Trustee shall give not less than seven days' Notice to .

notice of his intention to apply for leave to sell to all adult next nex,ofWa-of kin of the patient or infirm person in Victoria whose addresses are known to him by posting such a notice to each of them at their respective addresses.

(3) (a) On the hearing of the application any of the next of *£%£$£* kin of the patient or infirm person may appear.

(b) If it is shown to the judge by affidavit or otherwise that in the interests of the patient or infirm person or of his next of kin it is undesirable that the land mentioned in the notice should then be sold leave to sell shall not then be given.

(c) If no sufficient cause is shown as aforesaid the judge if satisfied that the notice hereinbefore required has been given may give leave to sell.

4 1 . Every superintendent of a mental hospital or private Reports ana mental home or receiving house or receiving ward under the super-Mental Hygiene Act 1958 sha l l— SSSS™0101.

hospitals Ac.

(a) forward to the Public Trustee without unnecessary $°; "• -,8:

delay after the reception of any patient into such s.2<2). hospital home house or ward the name of such patient and a copy of any request ( in the form in


the Ninth Schedule to the Mental Hygiene Act 1958 to receive such patient;

(b) without any unnecessary delay report to the Public Trustee the death, discharge, removal on trial leave, return or recapture of any such patient; and

(c) assist the Public Trustee in the management of the estate of any patient by communicating to him any information he may possess as to any such estate.

Investment securities oilier thun trustee securities. No. 4654 9.

In

39.

Power to retain invi'slmcnts

42c (1) In addition to any other power of investment the Public Trustee may, with the leave of a judge of the court to be obtained on application in chambers in a summary way, invest any moneys coming to his hands under this Division in respect of any estate in any security not being a security in which a trustee is authorized by statute to invest trust funds or in the purchase of land if such investment or purchase appears to the judge to be desirable for the benefit of the patient or infirm person or his estate, and the judge on hearing the application may deal with the same ex parte or require notice to be served on any person who in the opinion of the judge may be interested.

(2) The Public Trustee may— (a) for such period as he thinks fit allow any part of the

estate of a patient or infirm person to remain invested in the manner in which it has been invested by the patient or infirm person;

(b) in the case of money deposited in a bank re-deposit it after it becomes payable;

(c) apply for and hold any new issue of shares in a company for which the patient or infirm person may become entitled to apply as the holder of shares in such company; and

(d) on behalf of the patient or infirm person concur in any scheme of compromise affecting or any reconstruction of a company.

43. (1) If any patient is allowed out on trial leave under the provisions of section ninety-eight of the Mental Hygiene Act 1958 or is boarded out under the provisions of that Act the Public

NO.46M 8.40; j r u s t e e m a v j n n;s discretion pay or cause to be paid to him the whole or any part of the moneys standing to his credit in the hands of the Public Trustee and deliver to him all or any property forming part of his estate and any documents relating thereto.

Payment of moneys &c. to patient before tliscliarice.

s.2(2) .

1958. Public Trustee. No . 6350 297

( 2 ) The receipt of such patient shall be an absolute discharge to the Public Trustee therefor notwithstanding any informality in the granting of such trial leave or in such boarding out or in anything appertaining thereto.

44 . Until a patient has obtained his discharge under the Paiiemor Mental Hygiene Act 1958 or (as the case may be) until an infirm iwforeperso:i

person has been certified by the Public Trustee not to be or to lo be deemed have ceased to be an infirm person such patient or infirm person Sna«blwim shall be deemed incapable of dealing with or transferring or „n%Ps?£!iiiy

alienating or charging his moneys or property or any part thereof g™"™ of

without the order of the court or the written consent of the Public T0ru*l

teeor

Trustee, except as to moneys or property which have been paid No.46S4s.4i; or delivered to the patient by the Public Trustee in the exercise J ^ u " of the discretion vested in him by the last preceding section.

45. Except as in the last preceding section provided every other. dealing transfer alienation or charge by any patient before his of property by discharge or by any infirm person before he has been certified ffim'person by the Public Trustee not to be or to have ceased to be an infirm !"?be™l<L ..„

No 4654 S 42. person shall be void and of no effect, and the moneys or property the subject of such dealing transfer alienation or charge shall be recoverable by the Public Trustee on application to a judge of the court in chambers in a summary way, and such judge shall have jurisdiction to make such order in the matter and as to costs as in his discretion he deems just:

Provided that nothing in this or the last preceding section shall render invalid void or of no effect any dealing transfer alienation or charge by any such patient or infirm person made for adequate consideration with to or in favour of any other person who proves that he has acted in good faith and was unaware that such patient or infirm person was a patient or infirm person.

46 . (1 ) After any patient has obtained his discharge or died Retransfer of

or any infirm person has been certified by the Public Trustee not discharge,

to be or to have ceased to be an infirm person or has died the N " 8 ' ] ^ ' 43. Public Trustee shall pay or cause to be paid to him or (as the No.s«i9S' ' case requires) to his personal representatives all moneys standing s;2<5)(a)-to his credit in the hands of the Public Trustee, and shall deliver to him or (as the case requires) to his personal representatives all property forming part of his estate and any documents relating thereto.

( 2 ) The receipt of such patient or infirm person or of such personal representatives shall be an absolute discharge to the Public Trustee therefor notwithstanding any informality in the discharge or certification or in the mode of obtaining the same.

http://No.46S4s.4i


Patient or infirm person after dischirge &c. entitled to inspection of accounts. No. 4654 s. 44; No. 4963 s . 2 ( 2 ) .

47. Any patient who has obtained his discharge under the Mental Hygiene Act 1958 or been allowed out on trial leave under section ninety-eight of that Act and any infirm person who has been certified by the Public Trustee not to be or to have ceased to be an infirm person and the legal personal representatives of any deceased patient or infirm person shall be entitled, before or after obtaining the restoration of all or any part of his estate from the Public Trustee—

(a) to examine and inspect or cause to be examined and inspected by a solicitor or other authorized agent all books accounts notices and other documents in the custody of the Public Trustee relating to the estate and to make or cause to be made copies thereof or extracts therefrom;

(6) to have supplied to him or his solicitor or other authorized agent copies of or extracts from any such book account notice or document; and

(c) to have given to him or his solicitor or other authorized agent such information respecting the estate as is reasonably requested and can be given by the Public Trustee.

Power to Public Trustee to act until he receives notice of death, discharge &c. No. 4654 s. 45.

48. The Public Trustee may exercise all or any of his powers under this Division with respect to any estate until he has received due notice of the death of the patient or of his having obtained his discharge or of the death of the infirm person or until he certifies that the infirm person is not or has ceased to be an infirm person; and thereupon the patient or infirm person or his legal personal representatives (as the case may be) shall be bound by and may take advantage of any act done on behalf of the patient or infirm person by the Public Trustee within the powers conferred by this Division as if it had been done by the patient or infirm person himself while sane or not infirm.

Sale of personal effects if unclaimed within two years from date of discharge &*(. No. 4654 s. 46.

49. All personal effects of any patient or infirm person in the possession of the Public Trustee which are not claimed within the space of two years from the date of his death discharge or ceasir.g to be an infirm person may after public notice be sold by order of the Public Trustee and the proceeds thereof shall be paid into the Consolidated Revenue.

Agreement by Public Trustee with relative &c. for maintenance of patient. No. 4654 s. 47; No 5819 «. 2 (5) (6 ) .

50. (1) It shall be lawful for the Public Trustee to enter into an agreement in writing with any relative guardian or friend of any patient detained in any private mental home with respect to his maintenance while detained therein, and such relative guardian or friend shall be entitled to be reimbursed all necessary sums expended in such maintenance and interest thereon out of the estate of the patient.


s. 11 (2).

(2) Where any payments agreed upon under this section have not been duly made and arrears have accumulated, it shall be lawful for the Public Trustee in his discretion to agree to forgo altogether the payment of such arrears or to accept a smaller sum in satisfaction thereof or to make such other agreement in writing with the person liable therefor as to him seems just and reasonable.

(3) The Public Trustee may enforce any agreement under this section notwithstanding that mere is no consideration therefor and that it is not under seal.

51. The Public Trustee may, either before or after the death Power to open of a patient or infirm person, open and read without order any NO.4654S.4& paper or writing deposited with the Public Trustee and purporting or alleged to be the will of such patient or person.

52. Upon the application of the Public Trustee or of any Appointment relation of a patient or infirm person the court may from time to guacrduinsof ».:_,- person or l i m e estate of

(a) make orders for the appointment of a guardian O r infirm persons

otherwise for the protection care and management £0.4654 s. 49; of the person or of the estate or of the person and NO.4%3 estate of the patient or of the estate of the infirm No. 329 person (and such guardian shall according to the nature of his appointment have the same powers and authorities and be subject to the same control and liabilities as a committee of the person or estate or of the person and estate of a person found lunatic by inquisition under any Aot relating to the insane now has);

(b) make orders for the appointment of a receiver or otherwise for the protection care and management of the estate of the patient or infirm person (and such receiver shall have the same powers and authorities and be subject to the same control and liabilities as a receiver of the estate of a person found lunatic by inquisition xmder any Act relating to the insane now has);

(c) make orders for the application of the income of the patient or infirm person or a sufficient part thereof for his maintenance and support and in payment of the costs charges and expenses attending the-protection care and management of the person or estate of the patient or infirm person and of or in connexion with the obtaining of the said orders by the court, and also as to the investment or other application for the purpose of accumulation or otherwise of the overplus (if any) of such income

300 1958. Public Trustee. No . 6350

for the use of the patient or infirm person and his wife or children as to the court from time to time in each case seems fit;

(d) if the court thinks fit direct the Master of the Supreme Court to personally examine the patient or infirm person and to take such evidence and to call for such information as to the said Master seems necessary to satisfy him whether such person is a lunatic or infirm person and to report thereon to the court;

(e) either before or after directing such examination and whether the said Master has made a report as aforesaid or not—

(i) order an inquisition or inquiry under Pait IV. of the Mental Hygiene Act 1958 as to the state of mind of the patient;

Firth ( i i ) order the Public Trustee to sign and seal a Scl,cdu,e- certificate in the form in the Fifth

Schedule that the infirm person has ceased to be an infirm person for the purposes of this Act; or

(iii) leave or remit the care protection and management of the property of the patient or infirm person to the Public Trustee.

power to 53. ( l ) Where— apply v '

persons^ ° (a) any person on the trial of any indictment presentment "heg'roundof or information has been acquitted on the ground S S . of insanity; or NO. 4654 s. so. ^ under section three hundred and ninety-three of the

Crimes Act 1958 any person upon arraignment or upon his trial or upon being brought before any court to be discharged for want of prosecution is found by a jury to be insane—

the sheriff shall report the fact to the Public Trustee who shall thereupon make inquiry respecting the property of such person; and the court, on being satisfied by the report of the Public Trustee or by affidavit or otherwise of the continued insanity of such person and of his being still in confinement, may make any such order with respect to the estate or property of such person as to the court seems fit.

Applications ( 2 ) All applications under this section shall be made before Inchumbera0 a judge of the court in chambers in a summary way, and every suhiect'to3 be Judge of the court shall have full jurisdiction to dispose of all Ippeai. ° such applications and to make such orders therein and as to

costs as in the discretion of such judge seems just, and all such

1958. Public Trustee. No . 6350 301

orders shall when so declared by the judge be final, and when so declared by the judge to be final shall not be subject to appeal or review either in the Full Court or in any court whatever.

5 4 . Nothing in this Division shall extend, save as therein savins as to , °, . , , , . . r- liability of

expressed, to subject any part of the property of a patient or infirm propeny for person to the debts or demands of his creditors further than or Nobl4654». si. otherwise than as the same is subject thereto apart from this Division.

P A R T I I I . — F I N A N C I A L .

5 5 . ( 1 ) The Public Trustee may establish and keep in such Jfcacn0kunt8 of

bank or banks (including the State Savings Bank of Victoria) as P^;=e the Governor in Council approves a general account in the name NCU4M*S.52: of the Public Trustee and as many special and trust accounts in ^""f.6

the name of the Public Trustee as he considers necessary for the purpose of the exercise of his powers duties and functions under this or any other Act.

(2) Any such account established in any bank in the name of saying of the Public Trustee before the commencement of the Public Trustee accounts. Act 1948 shall be deemed to be an account established under the provisions of the last preceding sub-section.

(3) All moneys paid to or collected or recovered by or Moneys paid otherwise coming into the hands of the Public Trustee after the Public commencement of the Public Trustee Act 1948 (and whether K " S under this or any other Act) shall be forthwith paid into such one lccoSSt!ate

of the said accounts as the case requires.

(4) The Public Trustee shall in such manner as the Governor Payments by

in Council appoints and at such intervals as the Treasurer directs f0ubUcTrustt8

pay into the Consolidated Revenue out of the appropriate account R?v,Mue.ated

in each case—

(a) all moneys paid to or collected or recovered by or otherwise coming into his hands for or on account of or properly applicable to the maintenance of any patient;

(b) the amount of the fees paid to or collected or recovered by or otherwise coming into his hands pursuant to the provisions of section sixty of this Act; and

(c) all other amounts payable by the Public Trustee into the Consolidated Revenue under this or any other Act.


Power to Public Trustee to invest moneys separately or in Common Fund. No. 4654 s. 53; No. 3286 s . 7 ( l ) .

Authorized investments for moneys in hands of Public Trustee.

Investments in Common Fund.

Investment of moneys in Common Fund on advances to estates for administration purposes.

Investment cf moneys in Common Fund on advances to beneficiaries against shares in estates.

56. (1) The Public Trustee may in his discretion invest any moneys in his hands either—

(a) on the separate account of the estate trust property or person to which or whom the moneys belong; or

(b) (if the moneys are not directed to be invested in some other specified manner and investment in the Common Fund is not specifically prohibited by the terms of the trust governing the said moneys) as part of a fund to be called the " Common Fund " to be established and kept in the books of the Public Trustee.

(2) Moneys in the hands of the Public Trustee (whether forming part of the Common Fund or not) may be invested—

(a) in any manner in which trust moneys may be invested by a trustee under the Trustee Act 1958 or any other Act or by the Public Trustee under this Act or any other Act; or

(b) on deposit with the State Savings Bank of Victoria. (3) Investments made from moneys forming part of the

Common Fund shall not be made on account of or belong to any particular estate trust property or person, but the Public Trustee shall cause to be kept in the books of the Public Trustee an account showing at all times the current amount at credit in the Common Fund on account of each estate trust property or person.

(4) (a) The Public Trustee may make advances from the Common Fund for any purpose of or relating to any estate or trust property in course of administration by him.

(b) Any sum so advanced shall be deemed an investment of moneys forming part of the Common Fund and shall bear interest at a rate fixed by the Public Trustee (but not exceeding Five per centum per annum except with the consent of the Treasurer of Victoria) and the sum advanced and the interest thereon shall be a charge on the assets of the estate or trust property.

(c) Where any sum so advanced is applied in or towards the discharge of any debt or liability the charge shall rank in the same order of priority as that debt or liability.

(d) The aggregate amount of the liability of any estate or trust property to the Common Fund on account of advances under this sub-section shall not at any one time exceed one half of the net value of the estate or trust property as estimated by the Public Trustee.

(5) (a) Where an estate or trust property is under administration by the Public Trustee and any person beneficially entitled in that estate or trust property makes written application to the Public Trustee for an advance against his beneficial interest the Public Trustee may if he thinks fit make an advance or advances


from the Common Fund to that person of an amount not exceeding in the aggregate one half of the value of the beneficial interest of that person as estimated by the Public Trustee.

(b) Any sum or sums so advanced shall be deemed an investment of moneys forming part of the Common Fund and shall bear interest at a rate to be fixed by the Public Trustee (but not exceeding Five per centum per annum except with the consent of the Treasurer of Victoria), and each sum so advanced and the interest thereon shall be a first charge against the beneficial interest of the person to whom the sum was advanced subject only to any prior charges upon the beneficial interest of which the Public Trustee had received notice in writing before the sum was so advanced.

(6) The Public Trustee may sell investments belonging to saieot the Common Fund and may withdraw any of the moneys belonging iiTco'mmo'n to the C o m m o n F u n d for any purpose of or relating to the exercise Fund-

and discharge of his powers authorities duties and functions under this or any other Act .

(7) The Public Trustee may in his discretion at any time withdrawal withdraw from the Common Fund any amount at credit in the from Common

C o m m o n F u n d on the account of any estate trust property or Fund' person and may invest such amount on the separate account of that estate trust property or person.

(8) Amounts so withdrawn from the Common Fund shall as from the date of such withdrawal cease to have any claim for interest or otherwise from the Common Fund.

(9) No capital appreciation or depreciation in the value of Amounts at any investments made from the C o m m o n F u n d shall be deemed Common

or taken to increase or diminish the amount at credit in the affected by

C o m m o n F u n d on the account of any estate trust property or ap?rMiation person, and on the withdrawal from the C o m m o n F u n d of any depreciation amount invested therein the estate trust proper ty or person in ? n

fv e s t m e m s -

question shall be entitled to be credited with the actual amount which was so invested without regard to any such appreciation or depreciat ion.

5 7 . ( 1 ) Interest received from the investment of the moneys Allocation of forming par t of the C o m m o n F u n d 3hall be paid into an account recewedon to be called the " Interest Suspense A c c o u n t " a n d shall b e allocated made'hom* therefrom as hereinafter provided. STSfT*

No. 5286 s. 7 ( 1 ) , No. 5686 s. 2.

( 2 ) O n each amount at credit in the C o m m o n F u n d interest powertonx at the appropria te rate fixed from time to time by the Public di!l"oftial

Trustee shall at such times and intervals as the Public Trustee f^reston determines be allocated and paid out of the Interest Suspense j ; °™ d

m o n

Account to the credit of the estate trust proper ty or person entitled

304, 1958. Public Trustee. No. 6350

Fslales <iii;iruntee unil Reserve Account Jnd application thereof.

for the time being to the interest on the said amount; and the Public Trustee may fix different rates of interest according to the source and nature of the different amounts invested in the Common Fund, the periods for which they are so invested and such other factors as the Public Trustee considers relevant.

(3) No estate trust property or person shall be entitled in respect of any amount at credit in the Common Fund to any further or other interest than the interest allocated and paid as provided in the last preceding sub-section.

(4) At such time or times in each year as the Public Trustee determines such amount of the moneys at credit in the Interest Suspense Account as the Public Trustee deems necessary shall, after providing for all interest payable to the credit of estates trust properties and persons as aforesaid and all interest payable on advances made to the Common Fund under sub-section (2) of section fifty-eight of this Act, be carried to the credit of an account to be called the " Estates Guarantee and Reserve Account".

(5) All capital profit made upon the realization of investments from the Common Fund shall also be carried to the credit of the Estates Guarantee and Reserve Account.

(6) Moneys standing to the credit of the Estates Guarantee and Reserve Account may be applied for all or any of the following purposes:—

(a) Payment to the Common Fund of an amount equivalent to any capital loss incurred upon realization of any investment made from the Common Fund;

(b) Payment of any costs and expenses incurred in protecting investments made from the Common Fund;

(c) Payment of such other costs expenses and charges incurred in respect of the Common Fund or investments made therefrom as in the opinion of the Public Trustee are properly chargeable against the Estates Guarantee and Reserve Account;

(d) Payment of any legal costs expenses and charges not ordered by the court to be charged against a particular estate or trust property and not otherwise properly chargeable against a particular estate or trust property;

(e) Payment of any legal costs expenses and charges not ordered by the court to be charged against a particular estate or trust property but otherwise


properly :hargeable against a particular estate or trust property where the funds in the particular estate or trust property are insufficient to meet such costs expenses and charges; and

(/) Payment of any costs expenses and charges incurred by the Public Trustee in obtaining legal advice or in legal proceedings to which the Public Trustee is or is made a party where such costs expenses and charges are such that, by reason of general interest and importance of the subject-matter of the advice or proceedings, they should not in the opinion of the Public Trustee be charged against a particular estate or trust property.

(7) Any moneys standing to the credit of the Estates Guarantee investment or and Reserve Account which are not for the time being required Guarantee

for any of the purposes referred to in the last preceding sub-section AccoRum!rve

may be invested—

(a) in any manner in which trust moneys may be invested by a trustee under the Trustee Act 1958 or any other Act or by the Public Trustee under this Act or any other Act; or

(b) on deposit with the State Savings Bank of Victoria—

and all interest received from any such investment shall be paid into the Estates Guarantee and Reserve Account.

(8) Where after payment from the Interest Suspense Account surplus in of all amounts payable therefrom pursuant to the foregoing Suspense

provisions of this section any balance remains in that account at palaTo"'to ^ the end of any financial year, that balance shall forthwith be paid Rûe.3 '*1

into the Consolidated Revenue towards the cost of the administration of this Act .

5 8 . ( 1 ) If at any time the C o m m o n F u n d is insufficient to Provision for meet any proper claim thereon the amount of that claim, so far ?S™?rom as it cannot be met from the C o m m o n Fund , shall be paid out of Revenue

the Consolidated Revenue (which is hereby to the necessary ^nrdeCommon

extent appropriated accordingly) . NoU*sMns'«-No! 5286 S' "' ' s . 7 ( 1 ) .

( 2 ) In order to admit of the moneys in the C o m m o n F u n d Advances to

being kept closely invested and to provide moneys for the purpose FuTdmb°yn

of making advances from the C o m m o n F u n d as hereinbefore bank!ureror

provided, the Public Trustee may obtain advances to the C o m m o n F u n d from the Treasurer or, with the approval of the Treasurer in each case, from any b a n k by the deposit by way of equitable mortgage of any securities held by the Publ ic Trustee in respect of investments from the C o m m o n F u n d .


(3) Any advance made by the Treasurer under the last preceding sub-section shall be made from the Consolidated Revenue (which is hereby to the necessary extent appropriated accordingly).

(4) Every advance made by the Treasurer or by any bank as aforesaid shall be made for such period not exceeding four months as the Treasurer determines or approves and shall bear interest at a rate determined by the Treasurer:

Provided that on the expiration of the period for which any such advance is made the advance may with the approval of the Treasurer be renewed for any further period not exceeding four months and so on from time to time.

(5) The aggregate amount of advances made to the Common Fund as aforesaid and outstanding at any one time shall not exceed Fifty thousand pounds.

59. (1) The Public Trustee shall— (a) make or cause to be made alphabetical inventories

or lists of all the estates and trust properties under his management or control; and

(b) keep a separate account of all his receipts payments and dealings in every such estate and trust property.

inspection (2) Upon an application in writing by or with the authority accouns Q J a n y p e r s o n (herein referred to as "the applicant") interested

in the estate of any deceased person or in any trust property the Public Trustee shall—

(a) permit the applicant or his solicitor or other authorized agent to inspect and take copies of or extracts from any book account notice or other document in the custody of the Public Trustee relating to the estate or property;

(b) supply the applicant or his solicitor or other authorized agent with copies of or extracts from any such book account notice or document; and

(c) give to such applicant or his solicitor or other authorized agent such information respecting the estate or property as is reasonably requested in the application and can be given by the Public Trustee.

(3) Subject as aforesaid, the Public Trustee and all officers and agents of the Public Trustee shall so far as is consistent with the due carrying out of their respective powers and duties observe strict secrecy in respect of every trust or estate under the management or control of the Public Trustee.

Public Trustee to keep list of estates and accounts. No 4634 s. 56.


60. (1) (a) There shall be charged and payable in respect of the duties and services of the Public Trustee such fees by way of percentage or otherwise as are prescribed.

(6) Whenever the prescribed scale of fees and charges to be made by the Public Trustee is increased the Public Trustee shall forthwith cause details of such increase to be published in the Government Gazette and in two daily newspapers generally circulating throughout Victoria.

(2) Such fees shall be collected and accounted for in the manner prescribed and the payment thereof shall be enforced in the manner prescribed.

(3) Such fees when collected shall be paid into the Consolidated Revenue.

(4) The fees aforesaid or a proper proportional part thereof (as the case requires) shall be charged upon the estate of a patient or infirm person and be payable thereout although before payment thereof he dies; but in any such case the Public Trustee may if he sees fit remit or reduce the amount of the fees to be paid.

(5) Notwithstanding anything in this Act no fees shall be charged or paid under this Act in relation to moneys received by or paid to or coming under the control of the Public Trustee for or on behalf of any person receiving treatment under section two hundred and seven of the Mental Hygiene Act 1958 or in relation to his estate.

61. (1) All expenses incurred by or on behalf of the Public Trustee in the control or management of any estate or property shall be charged against and shall be paid out of and recoverable from such estate or property.

(2) All expenses incurred by or on behalf of the Public Trustee in carrying into execution any of the provisions of this or any other Act and not chargeable to any estate or property, and the expenses (if any) of the audit of the accounts of and of the estates and properties controlled or managed by the Public Trustee shall be defrayed and paid out of such moneys as Parliament appropriates for that purpose.

62. (1) The accounts of all estates and properties controlled or managed by the Public Trustee shall be subject to inspection by the Auditor-General, who shall have all the powers in respect of such accounts as are or may be conferred upon him by any Act now or hereafter in force relating to the collection and audit of public moneys and accounts.

Fees for services of Public Trustee. No. 4654 s. 57; No. 4963 s. 2 (2) . No. 5523 s. 5.

Fees to be charged on estate of patient or infirm person notwithstanding death before payment.

Fees not to be charged on estates of persons receiving treatment under Mental Hygiene Act.

Payment of expenses incurred by Public Trustee. No. 4654 s. 58.

Accounts to be open to inspection of Auditor-General. No. 4654 s. 59; No. 5329 s. 11 (2) .


(2) The Auditor-General may from time to time refer the whole or any part of the accounts of any such estate or property to the Master of the Supreme Court who is hereby authorized and required to examine and report upon the same for the information of the Auditor-General.

Public Trustee to be a collector of imposts under Audit Act. No. 4654 s. 60; No. 5286 8 . 7 ( 2 ) . No. 6111 s. 2.

Consolidated Revenue liable for proper ad-ministration of estates by Public trustee. No. 4634 s. 61.

63. The Public Trustee shall without further or other appointment than this Act be a collector of imposts under any Act now or hereafter in force relating to the collection and audit of public moneys and accounts.

64. The Consolidated Revenue is to be liable to make good all sums required to discharge any liability which the Public Trustee, if he were a private trustee, would be personally liable to discharge.

Protection of persons dealing with Public Trustee. No. 4654 s. 62.

PART IV.—GENERAL.

65. (1) No person shall be concerned to see or inquire whether any acts dealings or transactions by or with the Public Trustee or any officer or agent of the Public Trustee are or are not within the powers of the Public Trustee.

(2) All persons dealing with the Public Trustee as to any estate or property of which he has assumed management or control shall notwithstanding that the Public Trustee assumed the management or control of such estate or property otherwise than in accordance with this or any other Act be as fully protected as if the Public Trustee had assumed the management or control of such estate or property in accordance with the provisions of this or such other Act.

Supervision of Public Trustee by court. No. 4654 s. 63.

Indemnity to Public Trustee acting on order or advice of court.

66. (1) The court shall have jurisdiction to approve or disapprove of any act done or proposed to be done by the Public Trustee in relation to any estate or property controlled or managed by him.

(2) The Public Trustee may report to and apply for the order or advice of the court upon any matter arising out of the control or management of any estate or property.

(3) The court may require notice of any such application to be served on such persons as the court thinks proper.

(4) Where the Public Trustee acts on any order or advice of the court made or given under this section he shall be indemnified in respect of all acts or things done or omitted thereunder unless in representing the facts to the court he has been guilty of fraud or wilful concealment or misrepresentation.


67. (1) Any person interested as a creditor, beneficiary, next of kin or otherwise in any estate or property controlled or managed by the Public Trustee may apply to a judge of the court in chambers in a summary way upon any matter arising out of the control or management of such estate by the Public Trustee.

(2) At least seven days' notice of any such application shall be given to the Public Trustee.

(3) Upon the hearing of any such application the judge may receive proof of any matters orally or by affidavit, and may make such order thereon as the circumstances of the case may require and as to payment of costs by the applicant or by the Public Trustee or from the estate or property as in the discretion of the judge seems just.

Applications by creditors, relations ic. concerning management of estates oy Public Trustee. No. 4654 8. 64.

68. (1) Where any estate or property is being managed or summary controlled by the Public Trustee and such estate or property or For protecfton any part thereof is wrongfully detained converted or injured or any Ho'Sata'a. sum of money is due and owing in respect of such estate or property, the Public Trustee may claim and recover possession of such estate or property or part thereof or damages for the detention conversion or injury thereof or payment of the said sum by summary proceedings on complaint before a judge of the court, who is hereby authorized and required on proof to his satisfaction of the said cause of complaint to make an order requiring the defendant to give up possession of such property or to pay reasonable damages to be fixed by the said order for the conversion or injury thereof, or to pay the sum so due as aforesaid.

(2) In default of compliance by the defendant with the said order the judge may in and by the same or any subsequent order order that the defendant be committed to prison for a term of not more than six months.

(3) The judge may in any complaint under this section make such order as to costs as he thinks fit.

69. (1) In this section— Interpretation. No. 4654 s. 66.

"Named solicitor" means a solicitor as to whom the -Named testator settlor or other person signing a will deed of so""""-" settlement or other document from which the Public Trustee derives his authority to act has in such document expressed a desire that such solicitor should be employed to conduct any legal business arising in connexion with the estate or subject-matter of such document.

310 1958. Public Trustee. N o . 6350

" usual (> " Usual solicitor " means a solicitor as to whom the Public 6Olct0r' Trustee is satisfied that the testator settlor or other

persons signing a will deed of settlement or other document from which the Public Trustee derives his authority to act habitually employed such solicitor to conduct legal business for him.

Employment (2) The Public Trustee shall be guided by the following

bylpubuc™ principles in regard to the employment of solicitors to conduct Trustee. legal business arising in connexion with the performance of his

duties including applications for probate or administration:— (a) If there is a named solicitor the Public Trustee shall

employ such solicitor; (b) Ifa solicitor's name is endorsed on the document from

which the Public Trustee derives his authority to act, the Public Trustee shall subject to the provision of the next succeeding paragraph employ such solicitor;

(c) If the Public Trustee is satisfied that the testator settlor or other person signing the will deed of settlement or other document from which the Public Trustee derives his authority to act had a usual solicitor the Public Trustee shall employ such solicitor and if such will deed or other document is endorsed with the name of another solicitor the Public Trustee may employ such usual solicitor in preference to the solicitor whose name is so endorsed;

(d) When the Public Trustee is administering the affairs of a patient or infirm person the Public Trustee shall as far as practicable employ the usual solicitor, if any, of such patient or infirm person.

(3) Notwithstanding anything hereinbefore contained— (a) a solicitor entitled to be employed by the Public

Trustee may upon cause shown be removed by order of the court upon the application of the Public Trustee or of any person interested in the estate or property; and

(b) with regard to any particular piece of legal business the Public Trustee if he considers that it would be unreasonable to employ a solicitor to conduct such piece of business need not employ a solicitor to conduct such piece of business.

Powers of 7 0 . Nothing in this Act shall be deemed to deprive the Public under this Trustee of or to limit or restrict any powers or authorities vested ^wwon to1 in or exercisable by him in his capacity as executor or administrator Slide?oth« or trustee or otherwise by or under any other Act or law; and all Acts- powers and authorities conferred by this Act on the Public Trustee NO. 4654 s. 67. ^^ b g êeme^ t 0 j j e j n addition to and not in limitatioa or


restriction of other powers or authorities vested in or exercisable by him in his capacity as executor or administrator or trustee or otherwise by or under any other Act or law.

71. If any person makes and subscribes any declaration False required by this Act to be made and subscribed knowing the same punKo""!* to be false, he shall incur the same penalties as are incurred by Deriury-persons guilty of wilful and corrupt perjury.

perjury. No. 4654 S. 68.

72. The judges of the court may make rules for or with respect Rules of tO No. 4654 s. 69.

(a) applications to be made to the court under this Act;

(b) the form and mode of proceedings before the court; and

(c) generally, regulating the conduct and despatch of all business matters and things to be done by or before the court in relation to this Act.

73. (1) The Governor in Council may make regulations for Regulations, or with respect to— NO. 4654 s. 70.

(a) prescribing the administrative powers and duties of the Public Trustee;

(b) authorizing the appointment of agents by the Public Trustee and prescribing the powers and duties of and the remuneration payable to such agents;

(c) fixing scales of fees and other charges to be made by the Public Trustee under this Act;

(d) notices for the purposes of this Act and the manner in which such notices shall be given;

(e) forms for the purposes of this Act (and all such forms , or forms to the like effect shall be sufficient in law); and

(/) generally, prescribing all things which are permitted or required by this Act to be prescribed or which are necessary or expedient to be prescribed for carrying out and giving effect to the purposes of this Act.

(2) All such regulations shall be published in the Government Publication. Gazette and shall be laid before both Houses of Parliament within fourteen days after the making thereof if Parliament is then sitting and if Parliament is not then sitting within fourteen days after the next meeting of Parliament; and a copy of all such regulations shall be posted to each member of Parliament.


SCHEDULES.

FIRST SCHEDULE.

Number of Aci.' Title of Act. Extent of Repeal.

4654 . . Public Trustee Act 1939 So nvi"h as is not already or otherwise repealed.

4755 . . Public Trustee Act 1940 So mu-h as is not otherwise repealed.

4895 . . Public Trustee Act 1942 The whole. 4963 . . Mental Hygiene (Mode of Citation) Act Clause 11 (a), (b)

1943 of Schedule. 5286 . . Public Trustee Act 1948 So mu-h as is not

already or otherwise repealed.

5329 . . Master of the Supreme Court Act 1948 Clause 4 of Part B of Schedule.

5523 . . Public Trustee Act 1950 The whole. 5686 . . Public Trustee {Common Fund) Act 1953 The whole. 5753 . . Statute Law Revision Act 1953 Item in Schedule

referring to Public Trustee Act 1940.

5819 . . Mental Hygiene {Maintenance) Act 1954 Section 2 (5) {a), {b).

Section 28. No. 5286 s. 5 (2) .

SECOND SCHEDULE. I, the Public Trustee, being satisfied. by the production of certificates

in the form in the Third Schedule to the Public Trustee Act 1958 signed respectively by of and of legally qualified medical practitioners [and by a personal examination of A.B. and by other evidence I have taken] that [the said] A.B. is incapable of managing his affairs, hereby certify that the said A.B. is an infirm person for the purposes of the Public Trustee Act 1958.

Dated this day of 19 Public Trustee.

at (L.S.)

section 28. THIRD SCHEDULE, I, the undersigned, being a legally qualified medical practitioner hereby

certify that on the day of 19 at I separately from any other medical practitioner personally examined A.B. of and that the said A.B. is by reason of senility [or disease or illness or physical infirmity or mental infirmity] incapable of managing his affairs and that I have formed this opinion upon the following grounds, viz.:—

1. Facts observed by myself [here state the facts]. 2. Other facts, (if any) communicated to me by others [here state the

information and from whom].

Dated this day of 19 at

Signature Qualifications Place of abode or professional address


FOURTH SCHEDULE. Sec l lon 29

I, the undersigned, being a legally qualified medical practitioner, hereby certify that on the day of 19 at I personally examined A.B. of who is an infirm person within the meaning of the Public Trustee Act 1958 and that the said A.B. is no longer incapable by reason of senility [or disease or illness or physical infirmity or mental infirmity] of managing his affairs and that I have formed this opinion upon the following grounds, viz.:—

1. Facts observed by myself [here state the facts]. 2. Other facts (if any) communicated to me by others [here state

the information and from whom].


Signature

Qualifications

Place of abode or professional address

FIFTH SCHEDULE. Sections 28, 29. 52.

I, the Public Trustee, being satisfied by the production of a certificate in the form in the Fourth Schedule to the Public Trustee Act 1958 signed by of a legally qualified medical practitioner [and having made such inquiries and taken such evidence as I thought fit] that A.B. who is an infirm person within the meaning of the Public Trustee Act 1958 is no longer incapable by reason of senility \or disease or illness or physical infirmity or mental infirmity] of managing his affairs [or having been ordered on the day of 1 *> by a judge of the Supreme Court of Victoria to certify that the said A.B. is not (or has ceased to be) an infirm person for the purposes of the Public Trustee Act 1958] hereby certify that •he said A.B. is not [or has ceased to be] an infirm person for the purposes of the Public Trustee Act 1958.


Public Trustee. (L.S.)

Documents

No. 6350. PUBLIC TRUSTEE ACT 1958. · 2019. 5. 16. · 1958. Public Trustee. No. 6350 269 No. 6350. PUBLIC TRUSTEE ACT 1958. An Act to consolidate the Law relating to the Public Trustee