Trustee Act 1936 (SA)

In South Australia a Trustee can apply to the Court for its opinion, advice or direction pursuant to Section 91 of the Trustee Act 1936 (SA).

Section 91 makes reference to Section 69 and Section 70 of the Administration and Probate Act 1919 (SA).

The summons for judicial advice does not usually join a defendant although all persons interested such as beneficiaries are bound by the opinion.

In contrast a summons for construction of the trust instrument stems from the inherent jurisdiction. It is a partial administration proceeding.

While a trustee may be a plaintiff in such proceedings they may also be initiated by a beneficiary or a creditor. The beneficiaries may be represented by one person representing each class.

The objective of Section 91 is to enable trustees to be advised as to the nature or extent of their powers and duties of the administration of the Trust.

Where a question of construction arises a more suitable procedure is to proceed by summons joining the defendants and supported by affidavit rather than by way of a summons for judicial advice.

The Court may appoint new trustees by the exercise of either the Courts inherent jurisdiction or under its statutory powers pursuant to Section 36 of the Trustee Act 1936 (SA).

Where a beneficiaries seek other relief in addition to the appointment of a new trustee, the Court may order accordingly{ In the will of Tunstall [1921] VLR 559}

An application for the appointment of a new trustee is made by summons supported by affidavit evidence. A vesting order is also usually required since the trust property does not vest in a new trustee automatically.

The Court has the power to excuse breaches of trust where the trustee is deemed to have acted honestly and reasonably under Section 56 of the Trustee Act 1936 (SA).

The Trustee Act of South Australia also prescribes what documents a Trustee must disclose to a person with a beneficial interest in a particular trust pursuant to Section 84B of the Trustee Act 1936 (SA) and the Trustee Regulation 2011.

Section 35B of the Trustee Act 1936 (SA) applies to employee benefit trusts established in the State of South Australia.


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