Victorian Consolidated Legislation

Administration and Probate Act 1958 - SECT 46

Powers of personal representative as to appropriation

46. Powers of personal representative as to appropriation



(1) The personal representative may appropriate any part of the estate
including things in action of the deceased in the actual condition or state of
investment thereof at the time of appropriation in or towards satisfaction of
any legacy bequeathed by the deceased or of any other interest or share in his
property whether settled or not as to the personal representative seems just
and reasonable according to the respective rights of the persons interested in
the property of the deceased:

Provided that-

   (a)  an appropriation shall not be made under this section so as to affect
        prejudicially any specific devise or bequest;

   (b)  an appropriation of property whether or not being an investment
        authorized by law or by the will (if any) of the deceased for the
        investment of money subject to the trust shall not (save as
        hereinafter mentioned) be made under this section except with the
        following consents-

   (i)  when made for the benefit of a person absolutely and beneficially
        entitled in possession the consent of that person;

   (ii) when made in respect of any settled legacy share or interest the
        consent of either the trustee thereof if any (not being also the
        personal representative) or the person who is for the time being
        entitled to the income.

If the person whose consent is so required as aforesaid is a minor the consent
shall be given on his behalf by his parents or parent testamentary or other
guardian or if there is no such parent or guardian by the Court on the
application of his next friend;

   (c)  no consent (save of such trustee as aforesaid) shall be required on
        behalf of a person who may come into existence after the time of
        appropriation or who cannot be found or ascertained at that time;



   (d)  if independently of the personal representative there is no trustee of
        a settled legacy share or interest and no person of full age and
        capacity entitled to the income thereof no consent shall be required
        to an appropriation in respect of such legacy share or interest
        provided that the appropriation is of an investment authorized as
        aforesaid.

(2) Any property duly appropriated under the powers conferred by this section
shall thereafter be treated as an authorized investment and may be retained or
dealt with accordingly.

(3) For the purposes of such appropriation the personal representative may
ascertain and fix the value of the respective parts of the real and personal
estate and the liabilities of the deceased as he thinks fit and shall for that
purpose employ a duly qualified valuer in any case where such employment may
be necessary; and may make any conveyance (including an assent) which may be
requisite for giving effect to the appropriation.

(4) An appropriation made pursuant to this section shall bind all persons
interested in the property of the deceased whose consent is not hereby made
requisite.

(5) The personal representative shall in making the appropriation have regard
to the rights of any person who may thereafter come into existence or who
cannot be found or ascertained at the time of appropriation and of any other
person whose consent is not required by this section.

(6) This section shall not prejudice any other power of appropriation
conferred by law or by the will (if any) of the deceased and shall take effect
with any extended powers conferred by the will (if any) of the deceased and
where an appropriation is made under this section in respect of a settled
legacy share or interest the property appropriated shall remain subject to all
trusts for sale and powers of leasing disposition and management or varying
investments which would have been applicable thereto or to the legacy share or
interest in respect of which the appropriation is made if no such
appropriation had been made.

(7) If after any real estate (including chattels real) has been appropriated
in purported exercise of the powers conferred by this section the person to
whom it was conveyed disposes of it or any interest therein then in favour of
a purchaser the appropriation shall be deemed to have been made in accordance
with the requirements of this section and after all requisite consents (if
any) had been given.

(8) In this section a settled legacy share or interest includes any legacy
share or interest to which a person is not absolutely entitled in possession
at the date of the appropriation also an annuity, and purchaser means a
purchaser for money or money's worth.

(9) This section shall apply whether the deceased died intestate or not and
shall extend to property over which a testator exercises a general power of
appointment including the statutory power to dispose of entailed interests and
shall authorize the setting apart of a fund to answer an annuity by means of
the income of that fund or otherwise.