Victorian Consolidated Legislation

Trustee Act 1958 - SECT 45

Vesting of trust property in new trustee or continuing trustees

45. Vesting of trust property in new trustee or continuing trustees



(1) Where a new trustee is appointed the execution of the instrument of
appointment shall, subject to this section without any conveyance vest in the
persons who become and are the trustees, as joint tenants and for the purposes
of the trust, the trust property for which the new trustee is appointed.

(2) In any case to which the last preceding section applies the execution of
the instrument of discharge shall, subject to this section, without any
conveyance vest in the continuing trustees alone, as joint tenants and for the
purposes of the trust, all the property subject to the trusts from which the
retiring trustee has declared that he is desirous of being discharged.

(3) Subsections (1) and (2) of this section shall not apply-

   (a)  to land conveyed by way of mortgage for securing money subject to the
        trust, except land conveyed on trust for securing debentures or
        debenture stock;

   (b)  to land held under a lease which contains any covenant condition or
        agreement against assignment or disposing of the land without licence
        or consent unless-

   (i)  before the execution of the instrument of appointment or instrument of
        discharge (as the case may be) the requisite licence or consent has
        been obtained; or

   (ii) by virtue of any statute or rule of law such application would not
        operate as a breach of covenant or give rise to a forfeiture;

   (c)  to any property (including property subject to the operation of the
        Transfer of Land Act 1958) which is only transferable in books kept by
        a company or other body or in manner directed by or under an Act of
        Parliament.

In this subsection lease includes an under-lease and an agreement for a lease
or under-lease.

(4) In the case of any property referred to in the last preceding subsection
the execution of the instrument of appointment of a new trustee or of the
instrument of discharge (as the case may be) shall for the purposes of the
trust vest in the persons who become and are the trustees or in the continuing
trustees (as the case may be) the right to call for a conveyance of the
property and to sue for and recover the property.



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(6) In this section-

instrument of discharge means an instrument containing the consent or consents
referred to in subsection (2) of section forty-four of this Act and executed
in a case to which section forty-four applies; and

continuing trustees and retiring trustee have the same meaning as in
subsection (3) of section forty-four of this Act.