Appointment of new trustee

ADIS Code - TANT

A new trustee may, by registered deed, be appointed:

  • in place of a trustee (either original or substituted)
  • in addition to any existing trustee or
  • on the retirement of a trustee.

An appointer is the party responsible for appointing, replacing trustees etc.  An appointer may be the party creating the trust or the settlor, an existing trustee or a third party.

An appointment of a new trustee must be registered to be effective, see s6(1) Trustee Act 1925. See s6 and s7 Trustee Act 1925.

It must be stated on the IPF that the appointment of trustee does not affect Old System land and/or does not affect a Principal Deed.

If the appointment of trustee includes the retirement of a trustee.

An appointment of trustee that includes a variation of the trust must be marked by the Office of State Revenue.  If not marked, Registration insisted upon is prohibited.

A minor cannot be appointed as a trustee, see s151A Conveyancing Act 1919.

An executor, who is also the trustee, who renounces probate for whatever reason may appoint the Public Trustee or a registered Trustee Company to be the new trustee.  A private person or non-Trustee Company cannot be appointed as the new trustee.

The original trust is not required.

Lodgment requirements

Stamp duty - Required if executed before 1.7.1998, except where pursuant to an Order of Court or a will. If not marked Registration insisted upon is prohibited.

Not required if dated on or after 1.7.1998, except where the appointment contains a variation of trust.

Registration copy - Required. If unacceptable Registration insisted upon is prohibited.

Statement of Title Particulars form - Required if Old System land is affected.

NOS form - Required if Old System land is affected.

Index Particulars form (completion)

(A) Lodging Party - Must be completed.

(B) Instrument - Trust - Appointment of New Trustee

(C) Locality -  The situation of the Old System land if affected.

Link Conveyance - For the Old System land if affected.

Principal Deed - The deed of trust or the first document affecting the trust if registered.

(D) Indexing

If Old System land is not affected:  the trust, the party creating the trust or the settlor, and the first unit holders.

If Old System land is affected:  the trust, the party creating the trust or the settlor, the first unit holders, and the continuing trustees.

(E) Certification - Required.

Document requirements

Date:  must be dated with the date of execution.  If not dated advise the lodging party.  If a date is not furnished, indicate Registration insisted upon and include the reason.

Name:  the full names (initials are acceptable) of:

  • the trust or the deceased where the trust was created by a will
  • the party creating the trust or the settlor
  • the first unit holders
  • the appointer and
  • the new trustee and continuing trustees,

are required.  Advise the lodging party of any discrepancies in names. 

Operative clause:  "... hereby appoints...".

Locality:  required if Old System land is affected.  The situation of the land.

Link Conveyance:  required if Old System land is affected.  The last registered conveyance or acknowledgment that evidences ownership prior to Book 4000.  Whole or part must be established.

Principal Deed:  if registered, the number of the affected trust or first document affecting the trust as stated in the appointment must be identical to the number stated on the IPF.

Execution:  by the appointer.  The new trustee does not have to sign unless required by the trust.  A power of attorney cannot be used for execution by a trustee.

Attestation:  required. Must be witnessed by a person of 18 years of age or older who is not a party to the document.

IPF:  must be completed.

Staff processing information

If furnished, forward a copy with the Conversion Action.

If the Link Conveyance is above Book 4000 or a previous CA has been raised, ensure a Qualified title has not issued.  If a Qualified title has issued.

CA  Required if Old System land is affected.

Indexing

Locality:  required if Old System land is affected.  The situation of the land.

Link Conveyance:  required if Old System land is affected. The last conveyance or acknowledgment prior to Book 4000.  Indicate whole "W" or part "P".

Principal Deed:  if registered, the affected trust deed or the first registered document affecting the trust.

Noting:  If Old System land is affected and:

  • an interest, state: "interest in" (or Noting Code: "I")
  • a share, state: "[fraction] share"
  • part of the land, state: "[affected land description]"
  • the land description relies on an attached plan, state: "see attached plan" (or Noting Code: "PL").

If a variation is included, state: "Includes a variation of trust".

V:

If Old System land is not affected:

  • the trust or the deceased where the trust was created by a will
  • the party creating the trust or the settlor and
  • the first unit holders.

If Old System land is affected:

  • the trust or the deceased where the trust was created by a will
  • the party creating the trust or the settlor
  • the first unit holders and
  • the continuing trustees.

P:

If Old System land is not affected:  nil.

If Old System land is affected:

  • the trust or the deceased where the trust was created by a will
  • the party creating the trust or the settlor
  • the first unit holders and
  • the new trustee and the continuing trustees.