succession3

Barrister-at-Law
The paragraph below is current to 28 July 2011
[395-4450] Personal representative can become trustee During the administration of the estate, all the legal and beneficial interests in the estate assets vest in the executor or administrator, and the beneficiaries do not have any interest in the assets themselves however,
what they do have is a chose in action (personal right) against the personal representative.1
The task of the personal representative is to administer the estate according to law, and once he or she has completed his or her duties of administration (apart from finally transferring the assets to beneficiaries or placing them in the hands of trustees) the personal representative holds the
assets concerned as constructive trustee for the beneficiaries2 and, depending on the terms of
the will, the equitable interests in the assets themselves vest in the beneficiaries.3
The crucial moment when the personal representative becomes constructive trustee and interests in the assets themselves vest in beneficiaries is defined by when the assets have been set aside for the beneficiary by the personal representative, or when the personal representative has assented to the trusts of the will, or when the personal representative has become trustee of the
estate assets.4 Payment of the estate debts, or the setting aside of assets for distribution to beneficiaries by a personal representative who has decided that the assets will not have to be
used for the payment of debts, usually defines when the task of administration is complete. 5
Once the personal representative has become constructive trustee by completing the tasks of administration, he or she can exercise only the powers of a trustee over the assets concerned,
not the powers of a personal representative.6
Notes
1 Commissioner of Stamp Duties (Qld) v Livingston (1964) 112 CLR 12; [1965] ALR 803; BC6400550 ; Eastbourne Mutual Building Society v Hastings Corp [1965] 1 All ER 779; [1965] 1 WLR 861 ; Cameron v Murdoch [1983] WAR 321 at 343 (upheld on appeal to the Privy Council: Cameron v Murdoch (1986) 63 ALR 575; 60 ALJR 280 ); Estate of Simmons (1990) 56 SASR 1 at 9-12 ; Official Receiver in Bankruptcy v Schultz (1990) 170 CLR 306; 96 ALR 327; 64 ALJR 651; BC9002922 ; Gonzales v Claridades (2003) 58 NSWLR 211 at [19]; [2003] NSWCA 227; BC200304834 ; Barns v Barns (2003) 214 CLR 169 at [50]; 196 ALR 65; [2003] HCA 9; BC200300694 ; Romano v Romano [2004] NSWSC 775; BC200405446 .2 Pagels v MacDonald (1936) 54 CLR 519 at 526; [1936] ALR 224; (1936) 10 ALJR 36a per Latham CJ ; McCaughey v Cmr of Stamp Duties (NSW) (1945) 46 SR (NSW) 192 at 209; 62 WN (NSW) 230
; Perpetual Trustee Co Ltd v Cmr of Stamp Duties [1960] NSWR 366; [1960] 61 SR (NSW) 333 at 343, 345 ; Taylor v DCT (Cth) (1969) 123 CLR 206; 43 ALJR 237; 1 ATR 97; BC6900680 (the executors had consented to transmission, and the transmission application had been signed by the devisee but not registered: held that the executors had distributed the asset); Lamb v Lamb [1976] 1 NZLR 501 ; Re Roberts (1983) 20 NTR 13; (1983) 70 FLR 158

; Re Whitchurch [1990] VR 719 ; In the Estate of Fryer; Stokes v Churchill (1994) NSW ConvR ¶55-694; BC9302342; Sawiak v The Public Trustee (unreported, WASC, Murray J, 3 September 1993, BC9301429).3 Pagels v MacDonald (1936) 54 CLR 519 at 526; [1936] ALR 224; (1936) 10 ALJR 36a per Latham CJ ; Commissioner of Stamp Duties (Qld) v Livingston (1964) 112 CLR 12; [1965] ALR 803; BC6400550 ; Estate of Just (No 2) (1974) 7 SASR 515 at 523-524 .4 Estate of Just (No 2) (1974) 7 SASR 515 .5 In the Estate of Fryer; Stokes v Churchill (1994) NSW ConvR ¶55-694; BC9302342; upheld in Romano v Romano [2004] NSWSC 775; BC200405446 ; Exception Holdings Pty Ltd (In Liq) v Albarran (2005) 223 ALR 487; 23 ACLC 1270; [2005] NSWSC 677; BC200504875 . 6 Hardiman v Beale (1956) 58 WALR 20 at 25 .
As to the full range of these powers generally see trusts [430-4335]-[430-5000].
To update legislation see ACL Legislation
For information on (CTH), (NSW), (QLD) and (VIC) Acts cited in this paragraph see Statutes Annotations
[395-4455] Powers exercisable during the performance of executorial duties Beneficiaries under a will or an estate do not attain any enforceable interest in any asset of the estate until the personal representative has finalised the executorial or administrative duties to the point where
the asset is, or can be, released for the purposes of the trusts directed for it.1 Accordingly during that period, each asset then being held free of those trusts, the personal representative has, and
is able to exercise, the same rights and powers as the deceased held in respect of it.2 As a result, the personal representative may permit a surviving spouse or family of the deceased, or a
beneficiary, to continue to reside in the family home on an interim basis,3 and the executor or
administrator’s right to exercise a power of sale for the purposes of administration4 is universally
recognised.5
Notes
1 As to personal representative and trustee roles see [395-4450]. See also trusts [430-50].2 As to the interest of the personal representative regarding devolved property see [395-4015].3 Burke v Dawes (1938) 59 CLR 1; [1938] ALR 135; (1938) 11 ALJ 524 (the beneficiary was, under the will, a life tenant of a house forming part of the estate; because the house had never been released from the executorial duties, the beneficiary’s occupation rights were those of a tenant at will, rather than those of an equitable life tenant). This power has been affirmed by statute in (TAS)

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Barrister-at-Law
[395-4450] Personal representative can become trusteeDuring the administration of the estate, all the legal and beneficial interests in the estate assets vest in the executor or administrator, and the beneficiaries do not have any interest in the assets themselves however,
what they do have is a chose in action (personal right) against the personal representative.1
The task of the personal representative is to administer the estate according to law, and once he or she has completed his or her duties of administration (apart from finally transferring the assets to beneficiaries or placing them in the hands of trustees) the personal representative holds the
assets concerned as constructive trustee for the beneficiaries2 and, depending on the terms of
the will, the equitable interests in the assets themselves vest in the beneficiaries.3
The crucial moment when the personal representative becomes constructive trustee and interests in the assets themselves vest in beneficiaries is defined by when the assets have been set aside for the beneficiary by the personal representative, or when the personal representative has assented to the trusts of the will, or when the personal representative has become trustee of the
estate assets.4 Payment of the estate debts, or the setting aside of assets for distribution to beneficiaries by a personal representative who has decided that the assets will not have to be
used for the payment of debts, usually defines when the task of administration is complete. 5
Once the personal representative has become constructive trustee by completing the tasks of administration, he or she can exercise only the powers of a trustee over the assets concerned,
not the powers of a personal representative.6
Notes

; Perpetual Trustee Co Ltd v Cmr of Stamp Duties [1960] NSWR 366; [1960] 61 SR (NSW) 333 at 343, 345 ; Taylor v DCT (Cth) (1969) 123 CLR 206; 43 ALJR 237; 1 ATR 97; BC6900680 (the executors had consented to transmission, and the transmission application had been signed by the devisee but not registered: held that the executors had distributed the asset); Lamb v Lamb [1976] 1 NZLR 501 ; Re Roberts (1983) 20 NTR 13; (1983) 70 FLR 158
; Re Whitchurch [1990] VR 719 ; In the Estate of Fryer; Stokes v Churchill (1994) NSW ConvR ¶55-694; BC9302342; Sawiak v The Public Trustee (unreported, WASC, Murray J, 3 September 1993, BC9301429).3 Pagels v MacDonald (1936) 54 CLR 519 at 526; [1936] ALR 224; (1936) 10 ALJR 36a per Latham CJ ; Commissioner of Stamp Duties (Qld) v Livingston (1964) 112 CLR 12; [1965] ALR 803; BC6400550 ; Estate of Just (No 2) (1974) 7 SASR 515 at 523-524 .4 Estate of Just (No 2) (1974) 7 SASR 515 .5 In the Estate of Fryer; Stokes v Churchill (1994) NSW ConvR ¶55-694; BC9302342; upheld in Romano v Romano [2004] NSWSC 775; BC200405446 ; Exception Holdings Pty Ltd (In Liq) v Albarran (2005) 223 ALR 487; 23 ACLC 1270; [2005] NSWSC 677; BC200504875 . 6 Hardiman v Beale (1956) 58 WALR 20 at 25 .
As to the full range of these powers generally see trusts [430-4335]-[430-5000].
[395-4455] Powers exercisable during the performance of executorial duties Beneficiaries under a will or an estate do not attain any enforceable interest in any asset of the estate until the personal representative has finalised the executorial or administrative duties to the point where
the asset is, or can be, released for the purposes of the trusts directed for it.1 Accordingly during that period, each asset then being held free of those trusts, the personal representative has, and
is able to exercise, the same rights and powers as the deceased held in respect of it.2 As a result, the personal representative may permit a surviving spouse or family of the deceased, or a
beneficiary, to continue to reside in the family home on an interim basis,3 and the executor or
administrator’s right to exercise a power of sale for the purposes of administration4 is universally
recognised.5
Notes
1 As to personal representative and trustee roles see [395-4450]. See also trusts [430-50].2 As to the interest of the personal representative regarding devolved property see [395-4015].3 Burke v Dawes (1938) 59 CLR 1; [1938] ALR 135; (1938) 11 ALJ 524 (the beneficiary was, under the will, a life tenant of a house forming part of the estate; because the house had never been released from the executorial duties, the beneficiary’s occupation rights were those of a tenant at will, rather than those of an equitable life tenant). This power has been affirmed by statute in (TAS)

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[395-4465] Personal representative’s duty in equity In common with all trustees, a personal representative has a general duty at equity to make the estate productive for the benefit of the
beneficiaries,1 and may be held personally liable for any loss to the estate arising from breach of
that duty.2 It has been suggested that (subject to the terms of the trust instrument) trust money
should not be left uninvested for more than six months.3 ‘Invest’, in the context of the power held by a trustee, means ‘to apply money in the purchase of some property from which profit or interest is expected, and which property is purchased in order to be held for the sake of the income which it
will yield’.4 Unless expressly excused by the will, investments must carry interest5 and be made on
the security of property of adequate value.6 ‘Due diligence’ obligations imposed upon trustees by
statute do not modify these principles.7
Notes
1 As to the duty to make the estate productive see [395-4195]. See also trusts [430-4490].2 As to the duty to make the estate productive see [395-4195].3 Cann v Cann (1884) 51 LT 770; 33 WR 40.4 Re Wragg; Wragg v Palmer [1919] 2 Ch 58; [1918-19] All ER Rep 233 . See also Estate of Graham (decd),Re (2009) 105 SASR 95; (2009) 265 LSJS 191; [2009] SASC 278; BC200908138 . See generally trusts [430-4510] note 1.5 Khoo Tek Keong v Ch’ng Joo Tuan Neoh (dec’d) [1934] AC 529; (1934) 152 LT 53 .6 Khoo Tek Keong v Ch’ng Joo Tuan Neoh (dec’d) [1934] AC 529; (1934) 152 LT 53 . It is not to the point that the testator was in the habit of making unsecured loans: Khoo Tek Keong v Ch’ng Joo Tuan Neoh (dec’d) [1934] AC 529 at 535-6; (1934) 152 LT 53 .7 (ACT) Trustee Act 1925 s 14B
(NT) Trustee Act 1893 s 7(1)
(NSW) Trustee Act 1925 s 14B(1)
(QLD) Trusts Act 1973 s 23
(SA) Trustee Act 1936 s 8(1)
(TAS) Trustee Act 1898 s 9(1)
(VIC) Trustee Act 1958 s 7(1)
(WA) Trustees Act 1962 s 19(1).

[395-4470] Powers pursuant to statuteAll jurisdictions have enacted comprehensive
legislation dealing with the powers of trustees1 to invest trust property. With certain exceptions
and qualifications, trustees have a discretionary power to invest in any class of investment,2
subject to a ‘due diligence’ obligation.3 The trustee becomes personally liable for losses arising
from a breach of that obligation.4 All investments must be reviewed at least annually,5 and may be
varied at any time.6
Tasmania also makes specific provision authorising investment of the residue of the estate of a person who dies wholly or partly intestate, pending completion of administration, or during the
minority of any beneficiary or the subsistence of any life interest.7
Notes
1 The legislation of each jurisdiction includes personal representatives of deceased persons in the definition of ‘trustee’ for this purpose see [395-4450].2 (ACT) Trustee Act 1925 s 14
(NT) Trustee Act 1893 s 5.
(NSW) Trustee Act 1925 ss 14-14F.
(SA) Trustee Act 1936 s 6
(TAS) Trustee Act 1898 s 6. As to the investment of the residuary estate of an intestate see also (TAS) Administration and Probate Act 1935 s 33(3).
(VIC) Trustee Act 1958 s 5. As to the investment of the residuary estate of an intestate see also (VIC) Administration and Probate Act 1958 s 38(3).
(QLD) Trusts Act 1973 s 21 (unless expressly forbidden by the instrument creating the trust). For matters to which a trustee must have regard in exercising power of investment: ibid s 24(1).
(WA) Trustees Act 1962 s 17
As to the detail, nature and effect of this legislation and the qualifications and exceptions which pertain to it see trusts [430-4520], [430-4525], [430-4545]-[430-4640].

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[395-4475] Power of sale of estate property Executors are invested with a power to sell the
estate’s personal property1 and real property2 for the purpose3 of raising sufficient funds to meet the obligations of administration, that is, to pay all debts, funeral and testamentary expenses and
to meet pecuniary legacies.4 Once the administration is complete, or is complete as to one or more assets, the executor must hold the remaining assets, or that or those assets, on the trusts of
the will5 and any power to sell must be found elsewhere,6 if it is to be found at all.
Administrators, in respect of wholly or partly intestate estates, have a general power of sale of all
estate property for the purposes of administration and distribution.7 In some jurisdictions,8 the court may make orders relating to the time and mode of any sale of real estate of an intestate
person, or the letting or management of that real estate pending sale.9
Except where statute authorises to the contrary,10 any agreement for sale of estate property
entered into by fewer than all executors or administrators is not valid.11
Notes
1 The personal representative’s power to deal with estate personalty is sourced in the general law, pursuant to which an executor has absolute power to dispose of any and all the personal estate of a testator at any time before he assents in relation to it see Nugent v Gifford (1738) 1
Atk 463; 26 ER 294 . See, however, (TAS) Administration and Probate Act 1935 s 33(1); (VIC) Administration and Probate Act 1958 s 38(1) which direct that, where a person dies intestate, without special reason, personal chattels may not be sold, and reversionary interests may not be sold until they fall into possession.2 (ACT) Administration and Probate Act 1929 ss 41(2), 43, 50(1)(a)
(NT) Administration and Probate Act 1969 ss 54(2), 60, 80(1)(a)
(NSW) Probate and Administration Act 1898 ss 46(2), 48; (NSW) Conveyancing Act 1919 s 153(1)(b)
(QLD) Succession Act 1981 s 49(1); (QLD) Trusts Act 1973 s 32(1)(a).
(SA) Administration and Probate Act 1919 s 51(1)
(TAS) Administration and Probate Act 1935 s 39(1), 39(2)

(WA) Administration Act 1903 s 12.
3 Nevertheless, a purchaser is not required to verify that the proceeds have been applied by the executor for that purpose, and is discharged by the executor’s receipt: McLeod v Drummond (1810) 17 Ves 152; 34 ER 59 . See also Livingston v Cmr of Stamp Duties (Qld) (1960) 107 CLR 411 at 424-5; [1961] Qd R 118; [1961] ALR 534; (1960) 34 ALJR 425 per Dixon CJ. This protection has been affirmed by statute in some jurisdictions:
(ACT) Administration and Probate Act 1929 s 50(3)
(NT) Administration and Probate Act 1969 s 80(6)
(NSW) Conveyancing Act 1919 s 153(3)
(SA) Administration and Probate Act 1919 s 51(2).
There are no equivalent provisions in the other jurisdictions.
4 For an example of judicial confirmation of the existence of a general power of sale of a particular asset where executorial duties are incomplete in respect of it: In the Estate of Fryer; Stokes v Churchill (1994) NSW ConvR ¶55-694; BC9302342.5 In particular, once administration is complete in respect of an asset, a beneficiary presently entitled to that asset is entitled to call for it: Saunders v Vautier (1841) Cr & Ph 240; [1835-42] All ER Rep 58; (1841) 10 LJ Ch 354; 41 ER 482 ; Queen Street Hotels Pty Ltd v Byrne (1980) CLC ¶40-611; Turner v Noyes (1904) 20 WN (NSW) 266. See generally trusts [430-735]. These rights to call for the property in appropriate circumstances are expressly preserved in:
(TAS) Administration and Probate Act 1935 s 39(2)
(VIC) Administration and Probate Act 1958 s 44(2).
As to assents generally see [395-4900].
6 For details of the law relating to the power of trustees more generally to sell trust property see trusts [430-4240], [430-4680]-[430-4765].7 (ACT) Administration and Probate Act 1929 ss 41(2), 50(1)(a) (power to sell for the purposes of administration), 50(1)(b) (power to sell for the purposes of distribution or division)
(NT) Administration and Probate Act 1969 ss 54(2), 80(1)(a) (power to sell for the purposes of administration), 80(1)(b) (power to sell for the purposes of distribution or division)
(NSW) Probate and Administration Act 1898 s 46(2); (NSW) Conveyancing Act 1919 s 153(1)(a) (power to sell for the purposes of administration), 153(1)(b) (power to sell for the purposes of distribution or division)
(QLD) Trusts Act 1973s 32(1)(a). The property may also be disposed of by way of exchange for another of like nature and of like or better tenure, in the State: ibid s 32(1)(b).
(SA) Administration and Probate Act 1919 s 72C(2)
(VIC) Administration and Probate Act 1958 s 38(1)
(WA) Administration Act 1903 ss 10(3), 12.

8 (ACT) Administration and Probate Act 1929 s 51(a), 51(b).
(NT) Administration and Probate Act 1969 s 82(a)
(NSW) Probate and Administration Act 1898 s 57(a), 57(b)
(SA) Administration and Probate Act 1919 s 47(a), 47(b).
9 These sections do not permit the court to authorise an exchange of lands: In the Estate of Howard (1907) 245 WN (NSW) 125. Compare, however, (QLD) Trusts Act 1973 s 32(1)(b). See also note 7 above.10 Statutory power exists for fewer than all executors or administrators to sell, with the approval of the court, as follows:
(ACT) Administration and Probate Act 1929 s 50(5)
(NSW) Conveyancing Act 1919 s 153(4).
11 Re Fielding; Fielding v Fielding [1946] VLR 153; [1946] ALR 270 ; Neill v Hewens (1953) 89 CLR 1; 54 SR (NSW) 65; 71 WN (NSW) 37 . See, however, Colyton Investments Pty Ltd v McSorley (1962) 107 CLR 177; [1963] ALR 487; (1962) 36 ALJR 167 .
[395-4480] Power to postpone sale of estate property At equity, personal representatives and other trustees holding property upon trust for sale were required to sell that property in the
best interests of the estate within a reasonable time and those merely having a power of sale1
were invested with a discretion as to whether and when they should exercise the power.2 In respect of all estate property, personal representatives now have statutory power to either
postpone such a sale,3 or seek the court’s approval to postpone.4 In most jurisdictions, and subject to the terms of the will, the statutory power to postpone applies whether the power or duty
to sell was given by statute or by will.5
In some jurisdictions, where postponement is ordered against the wishes of a trustee, that trustee may be relieved of that management by having the court appoint a substitute trustee for the duration of the postponement; on such an order being made, the substitute is required to attend
to the management of the property pending the sale.6
Notes

postponement: In the Estate of Keenan (1899) 20 LR (NSW) B & P 10.3 (ACT) Trustee Act 1925 s 27B(1)
(NSW) Trustee Act 1925 s 27B(1). A personal representative is a ‘trustee for sale’ by virtue of the definition of that expression in ibid s 5.
(QLD) Trusts Act 1973 s 32(1)(c). Where the trust property is land or an authorised investment, the trustee is protected from liability for postponement, even where it extends beyond the period during which the power of sale remains valid (ibid s 32(4)), but the protection does not apply in the case of property that is of a wasting or speculative nature: ibid s 32(4).
(TAS) Administration and Probate Act 1935s 33(1). The power relates only to property in respect of which the deceased died wholly or partly intestate, and subject to any provisions in any will: ibid s 33(7).
(VIC) Administration and Probate Act 1958 s 38(1). The power relates only to property in respect of which the deceased died wholly or partly intestate, and subject to any provisions in any will: ibid s 38(7).
(WA) Trustees Act 1962 s 27(1)(c) (in the case of property which is of a wasting or speculative nature, sale may be postponed for no longer than is reasonably necessary to permit its prudent realisation).
See trusts [430-4770]-[430-4775] (statement of the law relating to postponement of sale of trust property).
4 (ACT) Administration and Probate Act 1929 s 51A(1)(a) (postponement may be ordered for such period as the court thinks fit)
(NT) Administration and Probate Act 1969 s 83(1)(a), 83(3) (postponement may be ordered for such period as the court thinks fit)
(SA) Administration and Probate Act 1919 s 64(1)(a) (postponement may be ordered for such period as the court thinks expedient).
5 (ACT) Trustee Act 1925 s 27B(1)
(NSW) Trustee Act 1925 s 27B(1)
(QLD) Trusts Act 1973 s 32(4). The power to postpone only applies, however, in respect of a trust or direction for sale of land or an authorised investment: ibid s 32(4).
(VIC) Trustee Act 1958 s 13(5). The power to postpone only applies to trusts for sale: ibid s 13(5).
(WA) Trustees Act 1962 s 27.
6 (ACT) Administration and Probate Act 1929 s 53
(NT) Administration and Probate Act 1969 s 85
(NSW) Probate and Administration Act 1898 s 59.

Annotations
[395-4485] Power to charge or mortgage estate property The power of a personal
representative to deal with estate personalty at any time prior to assent1 includes the power to
mortgage or pledge that personalty,2 and any such mortgage may include a power of sale.3 This
power to charge4 has been extended generally by statute to apply equally to estate realty.5 In most jurisdictions, personal representatives have express statutory power, for the purposes of
administration,6 to mortgage estate real property.7 In the Australian Capital Territory and the
Northern Territory, an administrator on intestacy8 may, on the security of the whole or any part of the estate, raise any sum required to pay the whole or any part of the share of the deceased’s
partner in the estate of the deceased.9
Notes
1 As to this power see [395-4475] note 2.2 Mead v Lord Orrery (1745) 3 Atk 235; 26 ER 937 ; Scott v Tyler (1788) 2 Dick 712; 21 ER 448 at 453 per Lord Thurlow; Earl Vane v Rigden (1870) LR 5 Ch App 663.3 Russell v Plaice (1854) 18 Beav 21; 52 ER 9 ; Cruickshank v Duffin (1872) LR 13 Eq 555.4 See trusts [430-4820]-[430-4845] (power of trustees generally to mortgage or charge trust property).5 (ACT) Administration and Probate Act 1929 s 43 (the provision is expressed to apply to ‘executors’)
(NT) Administration and Probate Act 1969 s 60
(NSW) Probate and Administration Act 1898 s 48 (the provision is expressed to apply to ‘executors’)
(QLD) Succession Act 1981 s 49(1)
(SA) Administration and Probate Act 1919 s 46(2)
(VIC) Administration and Probate Act 1958 s 14
(WA) Administration Act 1903 s 12.
6 For the meaning of this expression see [395-4475] note 7.7 (ACT) Administration and Probate Act 1929 ss 41(2), 50(1)(a)
(NT) Administration and Probate Act 1969 ss 54(2), 80(1)(a)
(NSW) Probate and Administration Act 1898 s 46(2); (NSW) Conveyancing Act 1919 s 153(1)(a)
(TAS) Administration and Probate Act 1935 s 39(1)(a) (the power is expressed to subsist ‘for the purposes of administration, and until the period of distribution arrives’)
(VIC) Administration and Probate Act 1958 s 44(1)(a) (‘raise money with or without a power of sale or charge’).
8 (ACT) Administration and Probate Act 1929 s 50(1)(d)
(NT) Administration and Probate Act 1969 s 80(4).
9 (ACT) Administration and Probate Act 1929 s 50(1)(d).

[395-4490] Power to lease estate property All jurisdictions confer upon personal
representatives a statutory power 1 of leasing certain property which forms part of the estate of
the deceased.2 In some jurisdictions, executors and administrators have authority to lease any
real estate held in possession for a term not exceeding three years.3 With the leave of the court,
this power may be exercised by fewer than all the personal representatives.4 The court also has
authority to direct proceedings with regard to the letting of estate property until it is sold.5
In Queensland and Western Australia, trustees may let or sublet any trust property for terms not
exceeding one year, from year to year or any lesser period, including at will.6 They may also grant
a building lease or sublease for a period not exceeding 30 years,7 or any other type of lease or
sub-lease for specified lesser periods.8
In Tasmania and Victoria, personal representatives have the powers of leasing which are
conferred upon trustees for sale.9
In South Australia, personal representatives have the power of leasing vested in trustees
generally.10 In the case of land devolving upon an executor or administrator, the court may direct
proceedings with regard to the letting and management of estate property until it is sold.11
Notes
1 The equitable right of a personal representative to deal with estate personalty (see [395-4475] note 2) includes power to lease chattels real and therefore (by virtue of the legislation noted at [395-4485] note 5) realty in the hands of the personal representative: Colyton Investments Pty Ltd v McSorley (1962) 107 CLR 177 at 183; [1963] ALR 487; (1962) 36 ALJR 167 . However, in equity, leasing was an exceptional mode of dealing with estate assets, and a lessee always took subject to the question whether the grant of the lease was the best way of administering the assets: Oceanic Steam Navigation Co v Sutherberry (1880) 16 Ch D 236 at 243; 50 LJ Ch 308; 43 LT 743 per Jessel MR , CA. It was held in Howling v Kristofferson (unreported, NSWSC Eq D, Cohen J, 2911 of 1992, 14 October 1992, BC9201556) that the executor is under a duty to let real property (as part of the duty to ensure that there is no waste of assets) where there is going to be a delay in selling or distributing that property, so as to realisze as much from the property as is reasonable.2 Any purported exercise of the power of leasing before the property to be leased is vested in the executor or administrator is void: The Daily Pty Ltd v White (1946) 63 WN (NSW) 262 ; Booth v Public Trustee [1954] VLR 183; [1954] ALR 420 . Similarly, an unproven executor cannot give an effective notice to quit in jurisdictions where the estate does not devolve upon the executor until grant (see [395-4005]): Re Smith; Ex parte Callan [1968] 1 NSWR 443; (1968) 87 WN (Pt 1) (NSW) 595 . See trusts [430-4780]-[430-4815] (power of trustees generally to lease trust property).3 (ACT) Administration and Probate Act 1929 s 50(1)(c)
(NT) Administration and Probate Act 1969 s 80(1)(c)
(NSW) Conveyancing Act 1919 s 153(1)(c).
4 (ACT) Administration and Probate Act 1929 s 50(4)
(NSW) Conveyancing Act 1919 s 153(4).

(NT) Administration and Probate Act 1969 s 82(b)
(NSW) Probate and Administration Act 1898 s 57(b).
These provisions do not confer a power to authorise the leasing of estate property, but merely confer jurisdiction to give directions as to the exercise of any such power sourced elsewhere: In the Estate of Corrigan (1925) 42 WN (NSW) 28 ; Colyton Investments Pty Ltd v McSorley (1962) 107 CLR 177; [1963] ALR 487; (1962) 36 ALJR 167 .
6 (QLD) Trusts Act 1973 s 32(1)(d) (extends to authorising share-farming agreements for periods not exceeding one year)
(WA) Trustees Act 1962 s 27(1)(d).
7 (QLD) Trusts Act 1973 s 32(1)(e)(i)
(WA) Trustees Act 1962 s 27(1)(e)(i).
8 (QLD) Trusts Act 1973 s 32(1)(e)(ii) (leases may be for periods not exceeding 21 years)
(WA) Trustees Act 1962 s 27(1)(e)(ii) (leases may be for periods not exceeding 10 years).
9 (TAS) Administration and Probate Act 1935 s 39(1)(b). See also (TAS) Settled Land Act 1884 ss 3(a), 40A.
(VIC) Administration and Probate Act 1958 s 44(1)(b); (VIC) Property Law Act 1958 s 35(1) (powers of leasing); (VIC) Settled Land Act 1958 (powers of management).
10 (SA) Trustee Act 1936 s 25C.11 (SA) Administration and Probate Act 1919 s 47(b). This section is otherwise in similar terms to those mentioned in note 5 above and, on the authorities there mentioned, probably does not confer on the court a substantive power to authorise leases of estate realty.
[395-4495] Partition A testamentary direction to distribute estate property confers a power of
sale.1 Where, however, a distribution of property is made in specie to two or more estate beneficiaries, each jurisdiction confers authority for partition of that property between those
beneficiaries.2 In most jurisdictions, statutory provision exists for the court to order or direct proceedings with regard to the expediency and mode of partition between beneficiaries under
deceased estates,3 to appoint arbitrators to effect summary partition by report and award4 and
for charges for payment of money by way of equality.5 In the other jurisdictions, personal
representatives may proceed in accordance with the general trustee provisions for partition.6
In New South Wales, where a deceased intestate is at death entitled to a share in real estate with
others, a spouse or qualifying de facto taking an interest in that share upon intestacy7 must accept the value of that share in lieu of partition if the other or others with whom the deceased
held that real estate all require that course to be adopted.8 At common law, the executor of a deceased co-owner of real estate can agree with the surviving co-owners for partition of that real
estate.9
Notes
1 Altson v Equity Trustees Executors and Agency Co Ltd (1912) 14 CLR 341 at 345 per Griffiths CJ, at 346 per Barton J; 18 ALR 316 ; Pagels v MacDonald (1936) 54 CLR 519; [1936] ALR 224; (1936) 10 ALJR 36a .2 The general law in each State jurisdiction (there are no equivalent provisions in the Australian Capital Territory or the Northern Territory) provides for partition of property between any co-owners, whether or not they are beneficiaries under a deceased or other trust estate. For a complete treatment of these provisions and statutory trusts for sale see real property [355-11685].3 (ACT) Administration and Probate Act 1929 s 51(d)
(NT) Administration and Probate Act 1969 s 82(d)
(NSW) Probate and Administration Act 1898 s 57(d)
(SA) Administration and Probate Act 1919 s 47(d).
There are no equivalent provisions in Western Australia.
4 (ACT) Administration and Probate Act 1929 s 52(1), 52(2)
(NT) Administration and Probate Act 1969 s 84(1), 84(2)
(NSW) Probate and Administration Act 1898 s 58(1), 58(2)
(SA) Administration and Probate Act 1919 s 48 (the arbitrators may effect the partition and exercise the powers of commissioners acting under a decree for partition)
(WA) Administration Act 1903 s 19(1), 19(2) (the court may appoint either arbitrators or the Principal Registrar to effect the partition).
5 (ACT) Administration and Probate Act 1929 s 52(4)
(NSW) Probate and Administration Act 1898 s 58(4)
(WA) Administration Act 1903 s 19(4).
There are no equivalent provisions in South Australia.
6 (QLD) Trusts Act 1973 s 32(1)(b)
(TAS) Settled Land Act 1884 ss 3(c), 40A
(VIC) Property Law Act 1958 s 35(3)(a).
7 As to the shares to be taken by a surviving spouse or de facto partner upon the death of an intestate see [395-1720]-[395-1785].8 (NSW) Probate and Administration Act 1898 s 53. See also (NSW) Succession Act 2006 s 115.

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[395-4500] Overview In the absence of an express and sufficient power in the deceased’s will,1
a personal representative has authority at common law to carry on a business conducted by the deceased at the time of death only to the extent and for the period essential to enable that
business to be sold as a going concern and to realise the best available price.2 With that
qualification, the business must be sold as soon as possible.3 Personal representatives who carry on a business of the deceased without authority or power to do so will be debarred from
entitlement to commission in respect of administration,4 and may be denied their right of
indemnity from the estate for the debts incurred in carrying on the business.5
Legislation in some jurisdictions, now permits the court to authorise a personal representative to carry on a deceased’s business subject to such conditions and for such periods as it may think fit
and, for that purpose, to use property of the estate or specified parts of it.6 In the absence of statutory authority to do so, the court has no power to authorise a personal representative to carry
on the deceased’s business.7
Notes

carrying on the deceased’s business, the rights of creditors of the business are not affected by the fact that a grant of representation has not yet been made: Re Estate of Spencer (dec’d); Ex parte Vincent (1962) 19 ABC 90 .3 Re Kerrigan; National Trustees Executors and Agency Co of
Australasia Ltd v Kerrigan [1916] VLR 516 ; Vacuum Oil Co Pty Ltd v Wiltshire (1945) 72 CLR 319 at 324 per Latham CJ, at 334 per Dixon J; [1946] ALR 50; (1945) 19 ALJ 380 . The fact that the next-of-kin object to the deceased’s business being sold does not necessarily entitle the administrator to carry on that business: Kelly v JT & J Toohey Ltd (1900) 16 WN (NSW) 173 .4 This is so, even if the estate has benefited from the unauthorised business see In the Will of Matheson (1887) 13 VLR 587 ; Re Walker’s Will (1894) 6 QLJ 259; In the Will of White (1908) 8 SR (NSW) 582 ; Crout v Beissel [1909] VLR 207 ; Re Kerr; Kerr v Cock (1904) 24 NZLR 1 .5 Vacuum Oil Co Pty Ltd v Wiltshire (1945) 72 CLR 319; [1946] ALR 50; (1945) 19 ALJ 380 . See also trusts [430-4890].6 (ACT) Administration and Probate Act 1929 s 51A(1)(b)
(NT) Administration and Probate Act 1969 s 83(1)(b)
(SA) Administration and Probate Act 1919 s 64(1)(b).
7 Re Herrod’s Estate [1902] St R Qd 245 .
[395-4505] Power given by deceased’s will Where power to carry on the deceased’s business is given by the will and in the absence of further authority, executors may for that purpose use only such assets of the estate as were used in that business by the deceased at the
date of death.1 A power to carry on the deceased’s business implies a power to mortgage assets
of the business for that purpose.2 Power to carry on a station business implies an obligation to make up exceptional stock losses out of corpus, and to maintain average carrying capacity out of
income.3
Where joint executors, in that capacity, carry on the business of the deceased pursuant to a
power in the will, that fact will not necessarily constitute them as partners.4 An executor of a deceased partner who, as directed by the will, permits estate assets to be continued to be used in the partnership business and continues to receive a share of the partnership profits, is not
thereby constituted a member of the partnership.5
Notwithstanding that powers given to an executor by will are normally regarded as being annexed
to the office and exercisable by the person holding that office,6 the powers given to an executor to carry on a testator’s business are not exercisable by an administrator appointed where the
named executor renounces or does not, or cannot, obtain a grant.7
Notes

[395-4510] Particular professional businessesAs part of the statutory regimes regulating the conduct of certain professional and other businesses conducted pursuant to statutory registrations, licences or permits, some jurisdictions include provisions authorising the continuance of those businesses by the licensee’s personal representatives after the licensee’s
death.1 These powers are variously subject to conditions relating to duration, supervision and the extent of the personal representative’s right to undertake the actual licensed work.
Notes
1 Statutory example where a business may continue after death include:
(NT) Architects Act 1963 s 26; (NT) Liquor Act 1978 s 47C
(QLD) Pharmacy Business Ownership Act 2001 s 139E; (QLD) Liquor Act 1992 s 129(1)(d)
(NSW) Liquor Act 2007 s 62
(SA) Legal Practitioner Act 1981 s 50
(TAS) Veterinary Surgeons Act 1987 s 24
(VIC) Estate Agents Act 1980 s 31E(1)(a); (VIC) Liquor Control Reform Act 1998 s 80(1)(a) (permits application for endorsement of name on licence or permit); (VIC) Firearms Act 1996 s 84(2) (permits application for transfer of a dealer’s licence)

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[395-4515] Compromise and compounding of debts due to the estate The trustee
legislation in each jurisdiction authorises trustees in general1 to compromise or compound debts
due by others to the trust.2 In the Australian Capital Territory, personal representatives of deceased estates are specifically permitted to accept compositions or security for debts, may allow time for payment of debts, to compromise, compound or arbitrate debts, and to document
those arrangements.3 In South Australia, the court may permit a personal representative leave to
postpone realisation of the estate for such period as the court thinks fit.4
Subject to that legislation, a personal representative is obliged5 to press for payment of debts due to the estate and, if payment is not made within a reasonable time, to enforce the debt by
legal proceedings,6 unless that personal representative holds a well-founded belief that such
action would be fruitless.7 If the personal representative declines to bring action, a beneficiary
may be entitled to do so, by means of an administration suit.8
Notes

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[395-4520] Right to pay into court All jurisdictions invest trustees generally1 with statutory
power to pay trust funds into court.2 Potential costs penalties where payment-in is not the most
appropriate course militate equally against personal representatives as against other trustees.3 In all jurisdictions except Queensland and South Australia, personal representatives have a further statutory alternative to payment into court of money held in trust for minors, namely the
appointment of trustees for minors’ property.4
Statutory provisions in the Australian Capital Territory,5 the Northern Territory6 and New South
Wales7 appear to empower the probate courts to make such orders as they think fit with reference to the distribution or application of any money which the personal representative may have in hand; these provisions have, however, been read down so as to apply only to ordering disbursement of the balance of funds shown by estate accounts (as filed) as being held for
specific beneficiaries.8
Notes
1 This includes personal representatives and trustees of deceased estates see [395-4450], especially [395-4450] note 4.2 For a detailed treatment of the law relating to this power, the circumstances in which such a payment is and is not appropriate and the consequences of paying estate funds into court see trusts [430-3840]-[430-3850].3 See trusts [430-3845].4 As to appointment of trustees see [395-4680].5 (ACT) Administration and Probate Act 1929 s 61.6 (NT) Administration and Probate Act 1969 s 93.7 (NSW) Probate and Administration Act 1898 s 89.8 In the Will of Mossop (1905) 5 SR (NSW) 722 . See also In the Will of Rossitter (1905) 22 WN (NSW) 115 ; In the Estate of Kintzchler (1908) 25 WN (NSW) 40 (applications to approve plans of distribution of the estate). See, however, In the Estate of Cooney (dec’d) (1907) 7 SR (NSW) 632 (application of these sections to the distribution of funds held by the Public Trustee).
[395-4525] Certain funds held by administrators in South Australia Legislation in South Australia makes special provision in relation to property within its jurisdiction, held by an
administrator 1 of a deceased estate and belonging to any person who either is not of full age and consent, or is not resident in South Australia and does not have an agent or attorney there. Such

date of death or six months after realisation, whichever first occurs.3 The property is thereafter
administered by the Public Trustee.4 A judge may dispense with the requirement, or modify its
time requirements, if satisfied that it is beneficial or expedient to do so.5 If the court so directs, any such order has the effect of discharging the administrator and any surety from further
responsibility regarding the property to which the order relates.6 The order may also be set
aside.7
Notes
1 This encompasses every personal representative other than one to whom probate has been granted: (SA) Administration and Probate Act 1919 s 4 (definitions of ‘administration’ and ‘administrator’), but excludes a limited company acting as administrator: ibid s 65(3).2 In South

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[395-4530] General scope of the duty to act personally In common with all trustees,1 a personal representative to whom a grant of representation has been made is in broad terms
required to act personally,2 however the law does recognise limited rights for trustees to
delegate3 purely administrative and other functions4 and to employ solicitors and certain other
agents.5 A personal representative is not bound by a testamentary direction to employ a specified
solicitor, and the person named cannot enforce such a provision.6

be revoked7 and a fresh, limited grant of administration made to an appropriate person.8 The new grant may be of administration de bonis non administratis (also termed ‘administration
dbn’),9 administration durante absentia,10 or administration durante dementia,11 as the
circumstances may require. If delegation of the substantive duties of a trustee is sought,12 the
proper course is to have a new trustee appointed.13 Where a nominated executor, who is unable to act and has not yet obtained a grant, seeks to have an attorney under power appointed to act in his or her stead, the proper course is for the attorney to seek a grant of administration with the will
annexed,14 in the first instance.
Notes
1 The expression ‘trustee’ includes personal representatives and trustees of deceased estates: see [395-4450], especially [395-4450] note 2.2 See trusts [430-4175]-[430-4190] (nature and consequences of this duty).3 See trusts [430-4385]-[430-4485].4 If the delegation is proper in the circumstances, the personal representative continues to be entitled to indemnity out of the estate for the costs incurred by the delegate (Staniar v Evans (1886) 34 Ch D 470 at 477 per North J ), except where the personal representative could have done the work personally: In the Will of Campbell (1892) 11 NZLR 514 . See also trusts [430-4480]. Notwithstanding that a delegation is validly made, the personal representative at all times remains personally responsible for the performance of the trust obligations: see trusts [430-4175].5 See trusts [430-4385]-[430-4425].6 Foster v Elsley (1881) 19 Ch D 518; 51 LJ Ch 275; 30 WR 596 ; Shaw v Lawless (1838) 5 Cl & Fin 129; 7 ER 353 , HL; Finden v Stephens (1846) 2 Ph 142; 41 ER 896 .7 As to revocation of grants see [395-3420], [395-3425], [395-3435]. See also (TAS) Administration and Probate Act 1935 s 17. Revocation of the grant of probate is not required where a grant is made under this section, and the executor is unable to act while the limited grant is in force: ibid s 18.8 The desired delegate may, or may not, be an appropriate person. As to the persons to whom grants of administration may be made or should be made see [395-3065]-[395-3085], [395-3205].9 As to grants of administration dbn see [395-3200], [395-3205].10 As to grants of administration durante absentia see [395-3230]-[395-3245].11As to grants of administration durante dementia see [395-3250].12 As to the difference between the functions of executor and administrator on the one hand, and those of trustees on the other, see [395-4450]. Where the administration duties are complete, appointment of a new executor or administrator is inappropriate: In the Estate of Dunn (dec’d) [1963] VR 165 . See also Mansour v Mansour (2009) 24 VR 498; [2009] VSC 177; BC200903832 .13 As to the appointment of new trustees see trusts [430-3290]-[430- 3420].14 As to the entitlement of the attorney under power of a nominated executor to seek a grant of administration with the will annexed see [395-3185]-[395-3195].
[395-4535] Power to appoint the Public Trustee jointly or in lieu Each jurisdiction makes various statutory provisions for a nominated executor, who has not renounced and has not yet
obtained a grant, to appoint1 that jurisdiction’s Public Trustee2 or an authorised trustee company3
to obtain a grant either in conjunction with the executor or administrator, or in his or her stead4 and subject to any contrary directions in the will.
Further, a person to whom a grant of probate or administration has been made may appoint the Public Trustee or an authorised trustee company to act in administration of the deceased estate
either in conjunction with the executor or administrator, or in his or her stead.5
Notes

1 As to the right of the Public Trustee or its equivalent in each jurisdiction to elect to administer certain estates with or, in some instances, without a grant, see [395-3100]-[395-3115].2 As to the office of Public Trustee in each of the jurisdictions see [395-3100] note 1. As to the authority of the Public Trustee to obtain a grant in its own right see [395-3100]. As to its right to administer estates without a grant see [395-3105], [395-3110].3 As to authorised trustee companies see [395-3120]. As to their roles and remuneration see trusts [430-3085]-[430-3110].4 (ACT) Public Trustee Act 1985 ss 17, 18; (ACT) Trustee Companies Act 1947 ss 5(1)(a), 5(1)(b) (applications and authorisations in favour of a trustee company by persons entitled to a grant of probate, without leave being reserved to another person to come in and prove the will), 6(1)(a), 6(1)(b) (applications and authorisations in favour of a trustee company by one of several executors entitled to a grant), 7(1)(a), 7(1)(b) (applications and authorisations in favour of a trustee company where a person is entitled to a grant of administration with the will annexed), 8(1)(a), 8(1)(b) (applications and authorisations in favour of a trustee company by persons otherwise entitled to a general grant of administration on intestacy). Under each of these sections, paragraph (a) deals with joint applications for the grant, and paragraph (b) with authorisations to the trustee company to seek a grant to the exclusion of the person authorising: ibid ss 5(1)(a), 5(1)(b), 6(1)(a), 6(1)(b), 7(1)(a), 7(1)(b), 8(1)(a), 8(1)(b). There are no corresponding provisions conferring rights on the Public Trustee.
(NT) Public Trustee Act 1979 s 36(1) (permits the appointment of the Public Trustee as sole executor in lieu of two or more nominated executors). The consent of the Public Trustee is required (ibid s 52), but that of the court is not: ibid s 36(2). The method of appointment is not otherwise provided for.
(NSW) Probate and Administration Act 1898 s 75A(1) (the appointment is made by deed)
(QLD) Trustee Companies Act 1968 ss 6(1)(c), 6(1)(d) (where the deceased died testate), 7(1) (where the deceased died intestate). Ibid s 6 authorises the executor and the trustee company to apply for, and for the court to make, either a joint grant of probate to the executor and administration with the will annexed to the trustee company, or a single grant of administration with the will annexed. It is not available where a grant of probate would require leave to be reserved to another person to apply for a grant; in such a case, the application is grounded under ibid s 9(1), 9(6). Ibid s 9 does not enable the appointing executor to obtain a joint grant with the trustee company: ibid s 9(1), 9(2).
(SA) Public Trustee Act 1995 s 9(1)(h). A grant (‘administration order’: ibid s 9(1)) can only be made to the Public Trustee to the exclusion of the person otherwise entitled to the grant: ibid s 9(1). Application for the grant is made by the Public Trustee in pursuance of a written request to do so by the person otherwise entitled to the grant: ibid s 9(1). See also (SA) Trustee Companies
Act 1988 s 4(3). Application for the grant must be supported by the consent of the person otherwise entitled and requires the approval of the court or Registrar: ibid s 4(3). The grant is made to the trustee company to the exclusion of the person otherwise entitled to it: ibid s 4(3).
(TAS) Public Trustee Act 1930 s 19(1). The grant to the Public Trustee must be supported by the written request of the person otherwise entitled to the grant to the Public Trustee to make the application: ibid s 19(1). See also (TAS) Trustee Companies Act 1953 ss 8 (requests by persons entitled to a grant of probate, without leave being reserved to another person to come in and prove the will), 9 (requests by persons otherwise entitled to general, special or limited grants of administration), 10 (requests where another person is entitled to come in and prove the will). Under these sections, the trustee company obtains a grant to the exclusion of the person authorising the Public Trustee to make the application: ibid ss 8-10.

(WA) Public Trustee Act 1941 s 12(1) (authorisation to the Public Trustee by the person, or a majority of the persons, otherwise entitled to administration with the will annexed, to seek an order to administer the estate), 12(2) (authorisation to the Public Trustee by the person, or a majority of the persons, named as executor, to seek an order to administer the estate), 12(3) (authorisation to the Public Trustee by the person, or a majority of the persons, otherwise entitled to general administration on intestacy, to seek an order to administer the estate). See also (WA) Trustee Companies Act 1987 ss 6(1)(a), 6(1)(b) (applications and authorisations in favour of a trustee company by persons entitled to a grant of probate, without leave being reserved to another person to come in and prove the will), 7(1)(a), 7(1)(b) (applications and authorisations in favour of a trustee company where a person is entitled to a grant of administration with the will annexed), 8(1)(a), 8(1)(b) (applications and authorisations in favour of a trustee company by persons otherwise entitled to a general grant of administration on intestacy). Under each of these sections, paragraph (a) deals with joint applications for the grant, and paragraph (b) with authorisations to the trustee company to seek a grant to the exclusion of the person authorising: ibid ss 6(1)(a), 6(1)(b), 7(1)(a), 7(1)(b), 8(1)(a), 8(1)(b).
5 (ACT) Trustee Companies Act 1947 ss 13 (appointment by deed filed in accordance with laws providing for filing of powers of attorney, of a trustee company to act in the stead of the appointor trustee, executor or administrator in relation to specified functions), 14(1) (appointment made, with the consent of the court, to perform all remaining duties of the appointor). Application is made by motion to the courts, and public advertisement is required: ibid s 15(1). There are no corresponding provisions conferring rights on the Public Trustee.
(NT) Public Trustee Act 1979 s 33(1) (as to the Public Trustee). The appointment is made by the court, on application, and appoints the Public Trustee alone: ibid s 33(1). As to trustee companies see (NT) Companies (Trustees and Personal Representatives) Act 1981 s 21(1). The appointment requires the consent of the court (ibid s 21(1)), but the method of appointment is not otherwise provided for.
(NSW) Probate and Administration Act 1898 s 75A(2) (the appointment is made by deed)
(QLD) Trustee Companies Act 1968 s 9(1), 9(4)
(SA) Public Trustee Act 1995 s 9(1)(f) (a grant (‘administration order’: ibid s 9(1)) can be made where the existing grantee wishes to retire from the office of executor or administrator and is accordingly to the exclusion of that person). The existing grant is thereupon revoked, without prejudice to any proceedings taken or acts already done under it: ibid s 9(1)(f). See also (SA) Trustee Companies Act 1988 s 4(4) (with the approval of the court, the trustee company may act for or in the place of the grantee, on either a permanent or temporary basis).
(TAS) Public Trustee Act 1930 s 15(1) (the appointment is made in writing by the executor or administrator, and appoints the Public Trustee to act in the place of the appointing executor or administrator). If the appointor is a sole surviving executor or administrator with the will annexed, the Public Trustee also becomes the sole trustee of the estate: ibid s 15(2). Any executor or administrator with the will annexed may ask the court to appoint the Public Trustee as sole trustee, executor or administrator: ibid s 15(1). See also (TAS) Trustee Companies Act 1953 ss 14 (appointment by deed filed in accordance with laws providing for filing of powers of attorney, of a trustee company to act in the stead of the appointor trustee, executor or administrator in relation to specified functions), 15(1) (appointment is made, with the consent of the court, to perform all duties of the appointor), 15(2) (public advertisement is required).
(VIC) Trustee Companies Act 1984 ss 16 (delegation of specified functions of an executor, administrator or trustee, by power of attorney, to a trustee company as temporary executor, administrator or trustee), 17(1)(a) (appointment of trustee company to perform all the acts and duties of the trustee, executor or administrator).

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[395-4540] Powers as an incident of office There is a rebuttable presumption1 that powers given to personal representatives and trustees are given ex officio, and pass with the office to its
holder or holders for the time being.2 It follows that an executor who renounces probate is incapable of exercising any power given by the will where that power, on its true construction, is
vested in the executor.3 A testator’s intention to empower an individual personally to perform certain tasks independently of the office of executor to which that will also appoints that person,
must, in order to be effective, be expressed in the clearest possible words.4
Notes

[395-4545] Exercise of powers following the death of one of multiple personal representatives Upon the death of one of several executors of a will or administrators of the estate of a deceased person, the survivor or survivors may exercise all the powers originally vested in the full complement of grantees. In New South Wales, Queensland and (in respect of
real estate only) Victoria, this position is specifically confirmed by statute.1 In the other
jurisdictions, it is a principle of common law.2
In respect of trustees,3 legislation in all jurisdictions4 empowers the survivors, in the case of the death of one or more, to exercise all powers originally vested in their full number.
Notes
(VIC) Administration and Probate Act 1958 s 13(1).
2 Jolliffe v Fera [1973] 2 NSWLR 702 at 703 per Holland J . As to the interests of multiple grantees see [395-4020].3 As to the distinction between personal representatives (executors and administrators) on the one hand, and trustees on the other, see [395-4450].4 (ACT) Trustee Act 1925 s 57(1)
(NT) Trustee Act 1893 s 23(1)
(NSW) Trustee Act 1925 s 57(1)
(QLD) Trusts Act 1973 s 16(1)
(SA) Trustee Act 1936 s 32(1)
(TAS) Trustee Act 1898 s 25(1)
(VIC) Trustee Act 1958 s 22(1)
(WA) Trustees Act 1962 s 45(1).
Each of these statutes, however, also includes executors and administrators in its definition of ‘trustee’ see [395-4450]. See further trusts [430-3235] (devolution of the office of trustee).
[395-4550] Exercise of powers following the death of last or sole personal representative At common law, where the sole executor, or the last surviving executor, of a deceased’s will dies
testate without having completed administration of the head estate,1 the office of executor
devolves upon the executor’s own executor.2 Except in a limited number of instances where various statutory provisions have extended the rule, it does not apply to:
(1)
trustees;3
(3)
(4)
whatever the nature of the grant of administration.4
Notes

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[395-4555] General rule The general rule is that delegation of testamentary power is void. In

say what persons or objects are to be his or her beneficiaries.4 A delegation may also be unacceptable because it delegates the power to determine the quantum of the benefit which a
selected beneficiary may take.5 The rule has been modified in some jurisdictions, to make the
test for certainty in a will correspond with the test for certainty for an inter vivos trust. 6
Notes
1 It may be that this rule applies only in Australia, and not in the remainder of the common law world, where there are decisions contrary to it: See Gregory v Hudson (1997) 41 NSWLR 573 at 576-7; BC9701111 per Young J .2 Tatham v Huxtable (1950) 81 CLR 639; [1951] ALR 1; (1950) 24 ALJ 416 ; Lutheran Church of Australia South Australia District Inc v Farmers’ Co-op Executors and Trustees Ltd (1970) 121 CLR 628; [1970] ALR 545; (1970) 44 ALJR 176 ; Gregory v Hudson (1998) 45 NSWLR 300 , CA(NSW) (affirming Gregory v Hudson (1997) 41 NSWLR 573; BC9701111 ); Ledgerwood v Perpetual Trustee Co Ltd (1997) 41 NSWLR 532; BC9701112 ; Horan v James [1982] 2 NSWLR 376 , CA(NSW); Calcino v Fletcher [1969] Qd R 8 ; Re Gillespie (dec’d) [1965] VR 402 .3 As to the exception to the rule see [395-4560].4 Tatham v Huxtable (1950) 81 CLR 639; [1951] ALR 1; (1950) 24 ALJ 416 .5 Horan v James [1982] 2 NSWLR 376 , CA(NSW). See also Klemke v Lustig [2010] VSC 502; BC201008404
.6 (ACT) Wills Act 1968 s 14A
(NT) Wills Act 2000 s 43
(QLD) Succession Act 1981 s 33R
(VIC) Wills Act 1997 s 48.
[395-4560] Qualifications and exceptions to the general ruleA number of exceptions to the general common law rule have been recognised by the courts. Included in these are the exercise
of a general power of appointment,1 a power of encroachment,2 secret and half-secret trusts,3 a
power to select between charitable objects4 and a gift of property to a valid pre-existing
discretionary trust.5 Further, if a testator designates with sufficient precision a class of persons or objects to be benefited, he or she may delegate to his or her trustees the selection of the
individual person or object within the defined class.6
In some jurisdictions, a power to appoint or a trust to distribute property, created by will, is not void as a delegation of the testator’s power to make a will if the same power or trust would be
valid if created by an instrument made inter vivos.7
Notes

Tatham v Huxtable (1950) 81 CLR 639; [1951] ALR 1; (1950) 24 ALJ 416 ; Re Gillespie (dec’d) [1965] VR 402 . See also Kennon v Spry (2008) 238 CLR 366; (2008) 251 ALR 257; [2008] HCA 56; BC200810608 .5 Gregory v Hudson (1997) 41 NSWLR 573; BC9701111 (affirmed Gregory v Hudson (1998) 45 NSWLR 300 , CA(NSW)).6 Re Gillespie (dec’d) [1965] VR 402 ; In the Estate of Langley (dec’d); Langley v Langley [1974] 1 NSWLR 46 . See also NSW Masonic Youth Property Trust v Attorney-General (NSW) (2009) 3 ASTLR 520; [2009] NSWSC 1301; BC200910837 .7 (ACT) Wills Act 1968 s 14A
(NT) Wills Act 2000 s 43
(QLD) Succession Act 1981 s 33R

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Barrister-at-Law
[395-4600] General, specific and demonstrative legaciesA legacy is a testamentary gift1 of
personal property.2 There are three recognised categories of legacy, namely general, specific
and demonstrative legacies.3 In addition, legacies may have a pecuniary nature4 or a residuary
nature.5

Where a will gives property to a legatee, commanding the legatee to make specific payments to
others, the executor has no duty to those others, their rights being solely against the legatee.6
Notes
1 A right given by will to a professional person to charge against the testator’s estate professional or other costs associated with the performance of the duties of an executor or trustee is a legacy: Commissioner of Stamp Duties (NSW) v Pearse (1953) 89 CLR 51; [1954] AC 91; (1953) 27
ALJ 616; [1954] 1 All ER 19 , PC.2 For the meaning of ‘personal property’ see personal property [315-1].3 Walford v Walford [1912] AC 658 at 662 . Compare Paget v Huish (1863) 1 Hem & M 663; 8 LT 445; 71 ER 291 at 293 per Viscount Haldane, at 294 per Page Wood VC .
As to the classification of legacies generally see [395-4265]. As to the order in which they are used to meet debts and other liabilities of the estate see [395-4615].
4 As to pecuniary legacies see [395-4605].5 As to residuary legacies (that is, gifts of residue) see [395-4800].6 Re Williams [1950] ALR 751 .
[395-4605] Pecuniary legacies At common law, the expression ‘pecuniary legacy’ is not a
technical term. It includes an annuity,1 but excludes a specific legacy of mere chattels.2 A share in
residue is not a pecuniary legacy.3 A pecuniary legacy is typically a general legacy 4 unless the will specifies it as a particular fund or as particular items of currency (in which case it is a specific
legacy)5 or nominates it as payable out of a particular fund (in which case it is a demonstrative
legacy).6
In some jurisdictions, the expression has been statutorily defined7 to include an annuity, a general legacy, a demonstrative legacy (to the extent to which the property over which it is secured is insufficient to meet it), and any other general testamentary direction for the payment of money. In each case, where the legacy is expressed to be given free of duties, it also includes all duties which are payable in respect of it.
In all jurisdictions, the applicable order in which assets are to be applied in the administration of
solvent estates8 makes provision for setting aside amounts to meet pecuniary legacies.9
Notes
1 Gaskin v Rogers (1866) LR 2 Eq 284 at 291; 14 WR 707 per Page Wood VC.2 Gaskin v Rogers (1866) LR 2 Eq 284 at 291; 14 WR 707 per Page Wood VC.3 Re Elcom; Layborn v Grover Wright [1894] 1 Ch 303 .4 As to general legacies see [395-4265].5 As to specific legacies see [395-4265].6 As to demonstrative legacies see [395-4265].7 (QLD) Succession Act 1981 s 5 (definition of ‘pecuniary legacy’)
(TAS) Administration and Probate Act 1935 s 3 (definition of ‘pecuniary legacy’)
(VIC) Administration and Probate Act 1958 s 5(1) (definition of ‘pecuniary legacy’).

There are no equivalent definitions in the other jurisdictions. However, to the extent to which the expression, as it appears in the legislation relating to administration of estates in the Australian Capital Territory, the Northern Territory and New South Wales, relates to the order of application of assets in those jurisdictions (the terms of which have been taken from the (UK) Administration of Estates Act 1925), the expression may also be interpreted in these jurisdictions in accordance with the definition in that Act.
8 As to the order for application of assets see [395-4330].9 As to the effect of these orders in relation to the payment of pecuniary legacies see [395-4620].
[395-4610] Annuities An annuity is, technically, a yearly payment of a certain sum of money 1
granted to another (the ‘annuitant’) in fee for life or years, charging the person of the grantor only.2
Payment of an annuity may, in addition, be charged upon land.3 If it is charged on land exclusively,
it is properly called a rent-charge.4 The term ‘annuity’ is also applied to yearly sums paid at other
intervals,5 and to other periodical payments.6
For the purposes of administration, an annuity is a legacy,7 or perhaps a series of legacies
payable at intervals,8 but it is not necessarily a legacy for all purposes.9 Except in New South
Wales, interest is not payable on arrears of an annuity.10 To the extent to which an annuity is no
more than a legacy of money to be paid in a specific form, it is a pecuniary legacy11 and will have
the characteristics12 of a specific legacy,13 a general legacy or a demonstrative legacy,14 as the case may require.
In the absence of a direction in the will as to whether an annuity is charged upon income or capital
or both, the general rule is that it charges the whole of the available estate.15 Where a will directs the purchase of an annuity, or a trustee is given the power under a will to purchase an annuity and has determined to do so, or where an annuity is charged upon property without a gift over of that property, the annuitant may elect to receive the purchase money or capital value of the annuity,
instead of the annuity.16 Where an annuity is charged upon the residuary estate, the annuitant is
entitled to require that a fund sufficient to answer the annuity be set aside.17 But if that fund proves
to be insufficient to answer the annuity then, subject to the will and to any statutory provisions, 18
the annuitant may follow the remainder of the residuary estate into the hands of its beneficiaries in
order to make up the shortfall.19
Notes

rent-charges generally see real property [355-12270]-[355-12285]. As to limitations on the right to recover a rent-charge see also limitation of actions [255-225], [255-275].5 Deputy Federal Commissioner of Land Tax, Sydney v Hindmarsh (1912) 14 CLR 334 at 338; 18 ALR 235 per Barton J .6 See Australia and New Zealand Savings Bank Ltd v Cmr of Taxation (1993) 42 FCR 535; 114 ALR 673 at 692; 25 ATR 369; 93 ATC 4370 per Hill J ; Federal Commissioner of Taxation v Australia and New Zealand Savings Bank Ltd (1994) 181 CLR 466; 125 ALR 213; 69
ALJR 12; BC9404655 (reversed on another point ). See also Certoma G L, The Law of Succession in New South Wales, 3rd ed, LBC Information Services, 1997, p 161.7 Re Berkeley (Earl of), (dec’d); Inglis v Berkeley (Countess) [1968] Ch 154. It is also a testamentary expense (Paget v Huish (1863) 1 Hem & M 663; 8 LT 445; 71 ER 291 ) and, subject to any contrary provision in the will, is at common law prima facie payable out of personalty: Paget v Huish (1863) 1 Hem & M 663; 8 LT 445; 71 ER 291 ; Re Trenchard [1905] 1 Ch 82 . See further [395-4270].8 Re Berkeley (Earl of), (dec’d); Inglis v Berkeley (Countess) [1968] Ch 154 at 165 per Cross J.9 Re Dowding’s Settlement Trusts [1904] 1 Ch 441 at 445 per Kekewich J .10 Torre v Browne (1855) 5 HL Cas 555; 10 ER 1017 ; Re Berkeley (Earl of), (dec’d); Inglis v Berkeley (Countess) [1968] Ch 744; [1968] 3 All ER 364 .
As to interest payable on legacies generally see [395-4695]. As to interest on annuities in New South Wales see (NSW) Probate and Administration Act 1898 ss 84A(1), 153(1)(b).
11As to the power to appoint the Public Trustee see [395-3100].12 As to the respective characteristics of these classes of legacy see [395-4265].13 Smith v Pybus (1804) 9 Ves 566; 32 ER 722 ; Creed v Creed (1844) 11 Cl & Fin 491; 8 ER 1187.14 Mann v Copland (1817) 2 Madd 223; 56 ER 317; Smith v Barton (1896) 17 LR (NSW) Eq 180.15 That is, upon both income and capital: Re Coller’s Deed Trusts; Coller v Coller [1939] Ch 277; [1937] 3 All ER 292; (1937) 157 LT 84 , CA.16 Stokes v Cheek (1860) 28 Beav 620; 54 ER 504 ; Re Mabbett; Pitman v Holborrow [1891] 1 Ch 707 (the court regarded the absence of a gift over as being merely in terrorem).17 Harbin v Masterman [1896] 1 Ch 351; [1895-99] All ER Rep 695 , CA.18 Each

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[395-4615] Ademption The doctrine of ademption applies to specific legacies1 and requires
that if, at the testator’s death, there is no property in the testator’s estate sufficiently2 answering
the testamentary description of the intended gift, that gift fails.3
General legacies4 do not adeem.5 If there is no property held by the deceased at death sufficient to satisfy the gift, the legacy amounts to a direction to the executor to acquire the designated property for the legatee or, if such an acquisition is not possible within 12 months from the death of the testator, to pay to the legatee the value of the gift, plus interest from the date of death until
the date of payment.6
Demonstrative legacies7 also do not adeem, even where there is a partial or total failure of the
fund from which the legacy is directed to be paid.8 Where the fund fails, the legacy loses its security but, to the extent of the failure, becomes payable pari passu with the other pecuniary
legacies directed by the will.9
Notes
1 As to specific legacies see [395-4265].2 As to the extent to which the description must be satisfied see [395-1165]. The actual property may have changed between the date of the will and death; it is the description of the property which is critical see, for example, In the Will of Smith (dec’d); Watson v Smith [1916] VLR 540 (‘my house and land in Urquhart Street, Coburg’).3 As to ademption of gifts made by will see further [395-1150]-[395-1165]. As to equitable ademption see equity [185-1145]-[185-1190].4 As to general legacies see [395-4265].5 McBride v Hudson (1962) 107 CLR 604 at 630; [1963] ALR 226; (1962) 35 ALJR 439 per Windeyer J.6 Re Plowright (dec’d) [1971] VR 128 . See also Re Blake (2009) 25 VR 27; [2009] VSC 184; BC200903788 .7 As to demonstrative legacies see [395-4265]. As to the different incidents of demonstrative and specific legacies see Re Stephens’s Will (1932) 27 Tas LR 58 .8 Re Webster; Goss v Webster [1937] 1 All ER 602; (1936) 156 LT 128; Roberts v Pocock (1798) 4 Ves 150; 31 ER 77 ; Mann v Copland (1817) 2 Madd 223; 56 ER 317; Fowler v Willoughby (1825) 2 Sim & St 354; 57 ER 381. Compare Re Walton [1936] SASR 15 , CA (court considered that legacies charged on the proceeds of sale of the testator’s business were specific legacies, and therefore adeemed because the testator did not own the business at the date of her death).9 Chauncy v Graydon (1743) 2 Atk 616; 26 ER 768 ; Re Lewis; Lewis v Lewis [1904] 2 Ch 656 , CA; Re Webster; Goss v Webster [1937] 1 All ER 602; (1936) 156 LT 128.
[395-4620] Abatement Specific legacies, general legacies and demonstrative legacies may
each abate,1 but do so differentially. Specific legacies are assigned priority positions in the order
of application of assets respectively applying in each jurisdiction2 and, accordingly, will be among
the last to abate.3 General pecuniary legacies are also provided for in those respective orders of
application of assets, are not differentiated and abate rateably between themselves.4 Annuities

In all jurisdictions except Queensland,7 demonstrative legacies8 take priority over the property or fund on which they are charged and they are not reduced unless, after payment of estate debts, the property or fund is insufficient to pay the legacy in full and then only to the extent of that
shortfall.9 As to the shortfall, they are treated as general legacies and rank equally with other
pecuniary legacies.10
Notes

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[395-4625] Priority for payment In South Australia and Western Australia, where the common
law governs the relevant order of application of assets,1 those pecuniary legacies which are neither specific nor demonstrative are paid with the same priority as debts and funeral and
testamentary expenses.2 Each of the remaining jurisdictions except Queensland3 has adopted a
statutory order based on the English legislation4 and, in each case, the legislation requires a fund for the payment of pecuniary legacies to be set aside out of assets undisposed of by the will and,
to the extent of any shortfall, out of assets not specifically disposed of by the will.5 However, as
these provisions do not specify6 whether or not those legacies are to be paid from that fund,7 or
whether they should continue to be paid with the priority afforded them by the common law,8 the position is uncertain.
Notes
1 As to the order of application of assets see [395-4330].2 As to the order of application of assets see [395-4330].3 In Queensland, pecuniary legacies are directed to be paid from Class 2 assets remaining after payment of debts and, to the extent to which those assets are insufficient for the purpose, the legacies abate proportionately: (QLD) Succession Act 1981 s 60.4 (UK)
Administration of Estates Act 1925 s 33(2), Sch 1 Pt II.5 As to these statutory orders see [395- 4330].6 Most (but not all) English cases have followed this procedure see, for example, Re Worthington; Nichols v Hart [1933] Ch 771 .7 That is, these provisions stipulate the order in which debts and expenses are to be paid, but do not indicate whether pecuniary legacies are to be included amongst such ‘debts and expenses’. The statutory provision does not interfere with an executor’s discretion concerning what property should be sold for the purpose of paying the debts and testamentary expenses; rather it provides a default rule for how the burden of debts and testamentary expenses is to be borne amongst different types of beneficiaries: Joyce v Cam (2004) 12 BPR 22,231; [2004] NSWSC 621 at [48]; BC200404763 per Campbell J .8 See, for example, Perpetual Trustee Co (Ltd) v Walker (1941) 41 SR (NSW) 174 . In Re Berry; Equity Trustees Executors & Agency Co Ltd v Berry [1954] VLR 557 , the English cases were distinguished as the intestacy (that is, the failure to dispose of property by will) only arose after the death of a life tenant taking under the will.
[395-4630] Priorities between legacies Certain rules which apply subject to the terms of a will have been established by the common law in relation to the priorities of legacies as between
themselves. General legacies have priority greater than residuary legacies1 but lower than
specific legacies.2 As between themselves, general legacies are payable proportionately, with no
one legacy being entitled to priority over another,3 and, where a specific pecuniary legacy is charged upon assets specifically dealt with by the will, that legacy will not be reduced unless, once
all debts have been paid, the value of that property is insufficient to pay the legacy in full. 4
Notes

a legacy is deferred as to its time of payment, it ranks equally with other legacies in the distribution of assets).4 Re Sloan; Stevens v Sloan [1943] VLR 63 ; Re John; Jones v John [1933] Ch 370 .
[395-4635] Time for paymentAn executor is generally allowed 12 months from the deceased’s
death to administer the estate.1 Once administration is complete, the interests of beneficiaries, including legatees, crystallise and they are generally entitled to be paid according to the tenor of
the will.2
In South Australia, an administrator who holds property within the State belonging to a beneficiary who is not sui juris or not resident in the State and has no duly authorised agent or attorney in the State, must deliver, convey or transfer that property to the Public Trustee immediately after the
expiration of one year from the date of the deceased’s death.3
Notes
1 This is the concept of the ‘executor’s year’ see [395-4190]. The principle has received specific statutory recognition (‘a personal representative is not bound to distribute the estate … before the expiration of one year from the death’) in (TAS) Administration and Probate Act 1935 s 43(1); (VIC) Administration and Probate Act 1958 s 49, and is generally recognised elsewhere in relation to the requirement to pay interest on certain legacies after one year see [395-4695].2 Re Tankard; Tankard v Midland Bank Executor and Trustee Co Ltd [1942] Ch 69; [1941] 3 All ER 458
.3 (SA) Administration and Probate Act 1919 s 65(1). A judge may order that an administrator is not bound by the section or not bound until after a certain time mentioned in the order: ibid s 67.
[395-4640] Summary applications for legacies In some jurisdictions, where a personal representative, after receiving a written request, neglects or refuses to:
(1)
(3)
pay or hand over a legacy or residuary bequest,
the person entitled to that property may apply to the court for an order that the personal
representative comply with the request, and the court may make such order as it thinks fit.2

Notes
1 As to acknowledgements see [395-4925]. In some jurisdictions the term ‘assent’ is used rather than ‘acknowledgment’.2 (ACT) Administration and Probate Act 1929 s 57
(NT) Administration and Probate Act 1969 s 88 (the section does not include reference to neglect or omission to sign an acknowledgement)
(NSW) Probate and Administration Act 1898 s 84
(WA) Administration Act 1903 s 42 (the section does not include reference to neglect or omission to sign an acknowledgement).
3 (QLD) Trusts Act 1973 s 98
(SA) Trustee Act 1936 s 42
(TAS) Trustee Act 1898 s 42
(VIC) Trustee Act 1958 s 64.
As to vesting orders generally see trusts [430-3485]-[430-3510].
[395-4645] Statutory substitution of beneficiaries to prevent lapse Legislation in all
jurisdictions prevents gifts to the testator’s children or remoter issue from lapsing1 in certain
situations by substituting other beneficiaries for those originally intended to take,2 subject to any contrary provision in the will.
Notes

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[395-4650] Legacies to debtors The amount of the principal of a debt payable to a deceased person at the date of that person’s death, with any interest accrued on it to that date, is an asset
in that person’s estate.1 This remains true even where the will releases the debt, as the release
operates as a legacy in favour of the debtor of the amount of the debt.2 Where the amount of a pecuniary legacy to a debtor of the estate equals or exceeds the amount of the debt, the value of the debt must be offset immediately and the debtor is entitled to resist a demand for payment,
and only the residue (if any) of the legacy is payable to the debtor and legatee.3 Where the amount of the debt exceed

succession3

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