testamentary protectorate and appointees

8/2/2019 Testamentary Protectorate and Appointees

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TESTAMENTARY PROTECTORATE AND APPOINTEES


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Trust Estates

Public Trust Act 2001 No 100 (as at 01 January 2011), Public Act

115 Evidence in respect of unclaimed property

In any case where the court or Public Trust is acting under this Part,o (a) they may accept and act upon and be satisfied with any evidence, whether or not it

is strictly legal evidence; ando (b) the court may make an order declaring, or Public Trust may acknowledge, a

claimant to be the owner or entitled to the possession of any property, despite theclaimant being unable to adduce evidence that would entitle him or her to judgment inan action of ejectment or a decree in an action for specific performance; and

o (c) they may have regard to the circumstances of each case in determining thecharacter and sufficiency of the evidence of title adduced.

Compare: 1957 No 36 s 90

Trust Estates Audit Regulations 1958 (SR 1958/71) (as at 03 September 2007)

Schedule

Prescribed forms

Form 1

Application for investigation of trust estate

Reg2(a)

Form 1 was amended, as from 1 March 2002, by section170(4)Public Trust Act 2001 (2001 No100) by substituting the words Public Trust for the words the Public Trustee wherever theyoccur. It was further amended by substituting the words Public Trust's for the words thePublic Trustee's. See clause2Public Trust Act Commencement Order 2002(SR 2002/11).

Form 2 Reg2(c)
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Appointment of auditor

Form 2 was amended, as from 1 March 2002, by section170(4)Public Trust Act 2001 (2001 No100) by substituting the words you are appointed for the words I hereby appoint you. Seeclause2Public Trust Act Commencement Order 2002(SR 2002/11).

The attestation part of form 2 was amended, as from 1 March 2002, by section170(4)PublicTrust Act 2001 (2001 No 100) by substituting the words for Public Trust for the words PublicTrustee. See clause2Public Trust Act Commencement Order 2002(SR 2002/11).

Form 3Notice of appointment of auditor

Reg2(c)

Form 3 was amended, as from 1 March 2002, by section170(4)Public Trust Act 2001 (2001 No100) by substituting the words by Public Trust for the words by me. See clause2Public TrustAct Commencement Order 2002(SR 2002/11).

The attestation part of form 3 was amended, as from 1 March 2002, by section170(4)PublicTrust Act 2001 (2001 No 100) by substituting the words for Public Trust for the words PublicTrustee. See clause2Public Trust Act Commencement Order 2002(SR 2002/11).

Trustee Act 1956 No 61 (as at 01 July 2011), Public Act

83A Examination of accounts of trust estates administered by trustee corporations

In the case of any trust estate administered by a trustee corporation, a solicitor or accountantauthorised in writing by a beneficiary shall be entitled as of right to examine at any reasonabletime the accounts of that estate, and for that purpose shall have access to the trusteecorporation's books and vouchers (but not the file) relating to that estate, and to the securitiesand documents of title held by the trustee corporation on account of that estate.Section 83A: inserted, on 18 October 1957 by section 10(1) of the Trustee Amendment Act 1957(1957 No 37).

83B Audit of other trust estates

(1) Subject to the provisions of any regulations made under this Act, and unless the Courtotherwise orders, the condition and accounts of any trust estate (being an estate which is notbeing administered by a trustee corporation) shall, on an application being made and noticethereof being given in the prescribed manner by or on behalf of any trustee or beneficiary in
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that estate, be investigated and audited by such solicitor or such chartered accountant (withinthe meaning ofsection 19of the New Zealand Institute of Chartered Accountants Act 1996) asmay be agreed on between the applicant trustee and his co-trustees and Public Trust, orbetween the applicant beneficiary and the trustees and Public Trust, as the case may be, or, indefault of any such agreement, by a solicitor or a chartered accountant (within the meaning ofsection 19of the New Zealand Institute of Chartered Accountants Act 1996) appointed by Public

Trust:provided that

o (a) except with the leave of the Court, such an investigation or audit shall not berequired within 12 months after any such previous investigation or audit; and

o (b) a beneficiary shall not be appointed under this section to make an investigation oraudit; and

o (c) Public Trust may require the applicant to deposit a sum of money covering the costsof the investigation and audit, as estimated by Public Trust, or to secure the same toPublic Trust's satisfaction before proceeding with the application.

(2) The person making the investigation or audit (in this section called the auditor) shall havea right of access to the books, accounts and vouchers of the trustees, and to any securities anddocuments of title held by them on account of the estate, and may require from them such

information and explanations as may be necessary for the performance of his duties.(3) Upon the completion of the investigation and audit, the auditor shall forward to theapplicant, and to every trustee, and to Public Trust, a copy of the accounts of the estate,together with a report thereon, and a certificate signed by him to the effect that the accountscorrectly show the state of the affairs of the estate, and that he has had the securities of thetrust fund investments (if any) produced to and verified by him, or (as the case may be) thatsuch accounts are deficient in such respects as may be specified in that certificate.(4) Every beneficiary shall, subject to the provisions of any regulations made under this section,be entitled at all reasonable times to inspect and take copies of the accounts, report, andcertificate, and, at his own expense, to be furnished with copies thereof or extracts therefrom.(5) The auditor may be removed by order of the Court; and if any auditor is removed, orresigns, or dies, or becomes bankrupt or incapable of acting before the investigation and audit

are completed, a new auditor may be appointed in his place in like manner as the originalauditor was appointed.(6) The remuneration of the auditor and the other expenses of the investigation and audit(including Public Trust's charges) shall be such as may be prescribed by regulations under thissection or (in the absence of any such prescription) as may be determined by the Court, andshall, unless the Court otherwise orders, be borne by the estate; and, in the event of the Courtso ordering, such expenses shall be borne by the trustees personally or any of them, or by theapplicant, or be apportioned between them or any of them, or between them and any of themand the estate, in such proportions as the Court thinks just.(7) If any person having the custody of any books, accounts, vouchers, securities, or documentsto which the auditor has a right of access under this section fails or refuses to allow him to haveaccess thereto, or in anywise obstructs the investigation or audit, the auditor may apply to the

Court, and thereupon the Court shall make such order as it thinks just.(8) Subject to any rules of Court, applications under or for the purposes of this section to theCourt shall be made to a Judge in Chambers.(9) If any person in any statement of accounts, report, or certificate required for the purposes ofthis section wilfully makes a statement that is false in any material particular, he shall be liableon conviction on indictment to imprisonment for a term not exceeding 2 years, or on summaryconviction to imprisonment for a term not exceeding 6 months, and in either case to a fine notexceeding $200 instead of or in addition to that imprisonment.(10) Public Trust shall not be liable for any expenses or costs under this section.(11) All expenses and costs for which the estate is liable under this section shall be a charge onthe assets of the estate, and that charge may be enforced in such manner as the Court directs.(12) The Governor-General may from time to time, by Order in Council, make all suchregulations as may in his opinion be necessary or expedient for specifying the procedure andregulating the remuneration, expenses, charges, and other matters in regard to theinvestigation and audit of trust estates.
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(13) All regulations made under this section shall be laid before Parliament within 28 days afterthe date of the making thereof if Parliament is then in session and, if not, shall be laid beforeParliament within 28 days after the date of the commencement of the next ensuing session.Compare: 1913 No 19 s 11Section 83B: inserted, on 18 October 1957 by section 10(1) of the Trustee Amendment Act 1957(1957 No 37).

Section 83B(1): amended, on 7 July 2010, bysection 10of the New Zealand Institute of CharteredAccountants Amendment Act 2010 (2010 No 74).Section 83B(1): amended, on 1 March 2002, bysection 170(1)of the Public Trust Act 2001 (2001No 100).Section 83B(1): amended, on 1 October 1996, bysection 23of the Institute of CharteredAccountants of New Zealand Act 1996 (1996 No 39).Section 83B(1)(c): amended, on 1 March 2002, bysection 170(1)of the Public Trust Act 2001(2001 No 100).Section 83B(3): amended, on 1 March 2002, bysection 170(1)of the Public Trust Act 2001 (2001No 100).Section 83B(6): amended, on 1 March 2002, bysection 170(1)of the Public Trust Act 2001 (2001No 100).

Section 83B(10): amended, on 1 March 2002, bysection 170(1)of the Public Trust Act 2001 (2001No 100).Section 83B(12): amended, on 1 March 2002, bysection 170(1)of the Public Trust Act 2001 (2001No 100).

84 Costs and testamentary expenses to be payable out of capital of settled residuary estate ofdeceased

(1) Where, under the provisions of the will of a person dying after the commencement of thisAct (in this section referred to as the deceased) any real or personal property included either byspecific or general description in a residuary gift is settled by way of succession, no part of theincome of that property shall be applicable in or towards the payment of the funeral,testamentary, and administration expenses, death duties, debts, legacies, and liabilities, or of

the interest (if any) thereon up to the date of the death of the deceased:provided that this subsection shall not apply to any commission which is payable to the trusteein respect of any such income or to any testamentary or administration expense which, apartfrom this subsection, would be payable wholly out of income.(2) The income of the settled property shall be applicable in priority to any other assets inpayment of the interest (if any) accruing due on the funeral, testamentary, and administrationexpenses,, debts, legacies, and liabilities, after the date of the death of the deceased and up tothe payment thereof, and the balance of that income shall be payable to the person for the timebeing entitled to the income of the property.(3) Where, after the death of the deceased, income of assets comprised in the settled propertywhich are ultimately applied in or towards payment of the funeral, testamentary, andadministration expenses, death duties, debts, legacies, and liabilities arises pending that

application, that income shall, for the purposes of this section, be deemed income of theresiduary estate of the deceased.(4) This section shall only affect the rights of beneficiaries under the will as betweenthemselves, and shall not affect the rights of creditors of the deceased or limit any other powersof the trustee.(5) The provisions of this section shall apply if and so far only as a contrary intention is notexpressed in the will, and shall have effect subject to the terms of the will and of any Act as tocharges on property of the deceased.(6) Nothing in this section shall apply to any annuity which is payable out of the estate of thedeceased.Compare: Conveyancing (Amendment) Act 1930, s 43 (NSW)Section 84(2): amended, on 24 May 1999, bysection 17of the Estate Duty Repeal Act 1999 (1999

No 64).Section 84(6): inserted, on 25 October 1960, by section 14 of the Trustee Amendment Act 1960(1960 No 101).
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85 Application of income of settled property pending conversion

(1) Subject to the provisions of this section, where under the will of any person any real orpersonal property included (either by specific or general description) in a residuary gift issettled by way of succession, then, notwithstanding that the property may be of a wasting,speculative, or reversionary nature,

o (a) pending any sale, calling in, or conversion of the settled property, the whole of thenet income of property actually producing income shall be applied as income and nopart thereof shall be appropriated to capital; and

o (b) on any such sale, calling in, or conversion, or on the falling in of any reversionaryproperty, no part of the proceeds of the sale, calling in, conversion, or falling in, shallbe applied as past income.

(2) This section shall apply only in respect of the wills ofo (a) persons who die after the date of the commencement of this Act:o (b) other persons so far as their estates were administered by the Public Trustee at the

date of the commencement of this Act and were subject to corresponding provisionsimmediately prior thereto.

(3) The provisions of this section shall apply if and so far only as a contrary intention is notexpressed in the will of the deceased, and shall have effect subject to the terms of that will.

Compare: 1921-22 No 48 s 20(3)

86 Fees and commission deemed a testamentary expense

The fees, commission, remuneration, and other charges payable to a trustee in respect of theadministration of the estate of a deceased person shall be deemed to be testamentary expenses.Compare: 1921-22 No 48 s 74

87 Costs of inquiring regarding beneficiaries

The costs, expenses, and charges of the trustee of any property in respect of any inquiries madeby him to ascertain the existence and identity of any person or persons entitled to any legacy,money, or distributive share in the property or otherwise incurred in relation thereto shall beborne by and paid out of the legacy, money, or distributive share of the person or persons in

respect of whom the inquiries were made.Compare: 1921-22 No 48 s 94

88 Life tenant to have powers of a trustee in certain cases

In any case where there is no trustee of any land, but the land is for the time being lawfullyvested in any person entitled to the possession thereof or to the receipt of the rents and profitstherefrom for an estate for life, or for a term of years determinable with his life, or for anygreater estate, that person may exercise all the powers conferred on a trustee by this Act, andthe Court may confer on that person all the powers which it could confer on a trustee underthis Act; and anything done by any such person in exercise of any such power shall have thesame force and effect as if it had been done by a trustee:provided that nothing in this section shall authorise any such person to sell any such land, or to

raise any capital money by a mortgage thereof or other dealing therewith, unless the moneypaid on the sale or the capital money so raised is paid to a trustee who is duly appointed andentitled to receive it.

testamentary protectorate and appointees

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