PROPERTY LAW ACT 1958 - SECT 171 Power for Court to settle the beneficial interests of a represented patient

PROPERTY LAW ACT 1958 - SECT 171

S. 171(1) amended by No. 59/1986 s. 143(2).

    (1)     The Court may direct a settlement to be made of the property of a represented patient or any part thereof or any interest therein, on such trusts and subject to such powers and provisions as the Court deems expedient, and in particular may give such directions—

        (a)     where the property has been acquired under a settlement, a will or an intestacy, or represents property so acquired; or

S. 171(1)(b) amended by No. 59/1986 s. 143(2).

        (b)     where by reason of any change in the law of intestacy or of any change in circumstances since the execution by the represented patient of a testamentary disposition, or of any absence of information at the time of such execution, or on account of the former management of the property or the expenditure of money in improving or maintaining the same or for any other special reason the Court is satisfied that any person might suffer an injustice if the property were allowed to devolve as undisposed of on the death intestate of the represented patient or under any testamentary disposition executed by him.

S. 171(2) amended by No. 59/1986 s. 143(2).

    (2)     The Court may direct the guardian or administrator of the represented patient, or any trustee for him, to execute any trust instrument, conveyance (including a disentailing assurance) or other instrument, and to do any other act or thing which may be required for giving effect to the settlement, in the name and on behalf of the represented patient and, for that purpose, may make a vesting order or appoint a person to convey; and any settlement approved by the Court shall be as effectual and binding on all persons interested as if the same had been made by the represented patient while of full capacity.

S. 171(3) amended by No. 59/1986 s. 143(2).

    (3)     This section shall apply whether or not the represented patient has executed a testamentary disposition and notwithstanding that it is not known whether he has executed such a disposition or not, but shall not apply when he is an infant.

S. 171(4) amended by No. 59/1986 s. 143(2).

    (4)     Any person who under the Administration and Probate Act 1958 has, or if that Act, or any corresponding previous enactment, had not been passed would have had, a spes successionis (whether under any testamentary disposition which is known to exist or in the event of the intestacy of the represented patient) or an interest in the property of the represented patient or in any part thereof, as well as the guardian or administrator and any other person who may be authorized by rules made under this section, shall have power to apply to the Court for an order under this section.

S. 171(5) amended by No. 59/1986 s. 143(2).

    (5)     Subject to making due provision for the maintenance of the represented patient in accordance with his station in life, whether out of the capital or income of the property settled or other property or partly in one way and partly in another, and to providing, by means of a power of appointment or revocation, or otherwise, for the possibility of the represented patient recovering full capacity, the Court may, in making any order under this section, have regard to—

        (a)     the manner in which the property has been settled or dealt with on former occasions;

        (b)     in the case of land, the welfare of the labourers and other persons employed thereon, and the expediency of settling personal estate to devolve therewith;

        (c)     the continuation or provision of any pensions, and the application of any part of the income for charitable purposes;

S. 171(5)(d) amended by No. 59/1986 s. 143(2).

        (d)     the provisions of any testamentary disposition of the represented patient;

        (e)     the expediency of providing for—

              (i)     jointures, portions and other annual or capital charges and powers to create the same;

              (ii)     discretionary trusts, trusts for effecting or maintaining policies of insurance, powers of appointment, sinking funds for making good loss by fire (in lieu of, or in addition to, insurance) or for any other purpose;

              (iii)     the extension of any statutory powers of investment, management or otherwise;

              (iv)     the manner in which any costs are to be raised and paid, whether out of the settled property or otherwise;

              (v)     any other matter or thing which, having regard to the nature of the settlement, or the property to be settled, and the management development, and enjoyment thereof, and to the persons who are to take, either successively or otherwise, the Court may consider material.

S. 171(6) amended by No. 59/1986 s. 143(2).

    (6)     In this section, "testamentary disposition" means an instrument executed by the represented patient while of full testamentary capacity, which, if unrevoked, might, on his death, be proved as a will or codicil; and the Court may act on such evidence as to the existence or absence of a testamentary disposition as it thinks fit.

S. 171(7) amended by No. 59/1986 s. 143(2).

    (7)     At any time before the death of the represented patient the Court may, as respects any property remaining subject to the trusts of a settlement made under this section, on being satisfied that any material fact was not disclosed to the Court when the settlement was made, or on account of any substantial change in circumstances, by order vary the settlement in such manner as it thinks fit, and give any consequential directions.

    (8)     Rules of Court may be made for giving effect to the provisions of this section, and in particular for compelling information to be furnished respecting, and production of, testamentary dispositions, and the lodgment thereof in court, for prescribing what notices (if any) of the proceedings are to be served, for dispensing with such notices and, when necessary, for making representation orders.

S. 171(9) inserted by No. 59/1986 s. 143(2), amended by Nos 52/1998 s. 311(Sch. 1 item 78), 26/2014 s. 455(Sch. item 23.2), 13/2019 s. 221(Sch.  1 item 41.3), 39/2022 s. 855.

    (9)     In this section "represented patient" means a patient within the meaning of the Mental Health and Wellbeing Act 2022 who is a represented person within the meaning of the Guardianship and Administration Act 2019 .

Division 9—Voidable dispositions

No. 3754 s. 172.