POWERS
1. MAINTENANCE
• Refers to the power in trustees to apply the income of trust property towards the
maintenance of a beneficiary who is a minor or whose interest is still contingent
• May be necessary to use the income of the trust for their benefit before the interest
actually vests – don’t have to wait until the contingency occurs.
• Will be most apposite where the income is necessary for their maintenance, education
or benefit.
• Where income is required in this way, they can invoke a statutory or express to the
contrary – power of maintenance
• Court has both an inherent AND statutory jurisdiction to order provision:
Express
• Modern trusts will usually give trustees express power and the extent of the power,
where one is expressed – to be determined in accordance w the instrument
Statutory
• These can be expressly or impliedly excluded by the deed
CONVEYANCING ACT 1881
S 42
- The trustees may apply at discretion any income which, in the exercise of such discretion,
they deem proper, according to the infant‘s age, for his or her maintenance, education and
benefit, or pay thereout any money to the infant‘s parent or guardian to be applied for the
same purposes
- This power of maintenance applies only to income from land in which a minor has an
interest
S 43
- Where any property is held on trust for an infant the trustees may pay to their parents or
otherwise or otherwise apply for or towards – education, maintenance or benefit using the
income of that property
- This power applies only to a minor entitled for life or any greater interest in property and
whether absolutely or contingently on attaining 18 or upon the occurrence of some event
before that age.
- Shall accumulate the residue of that income and hold the accumulations for the benefit of
the person who ultimately becomes entitled to the property which the income arose from.
- Unless a contrary intention is expressed in the trust document.
, - Wont apply if the vesting of the interest is contingent on reaching an age greater than 18 or
on the occurrence of a future event AFTER attaining that age.
THE SUCCESSION ACT 1965
S 57
(1) Where an infant is entitled to any share in the estate of a deceased person and there aren’t
any trustees of such share able and willing to act – the deceased’s personal representatives
may appoint a trust corporation or any two or more persons (which can be the personal reps
or the corporation) to be trustees for the infant and can:
- Execute the assurance
- Take other action that’s necessary for vesting the share in the trustee
In default of appointment, personal representatives shall be the trustees
Court powers
GUARDIANSHIP OF INFANTS ACT 1961
S 11
(1) Any guardian of an infant may apply to the court for its direction on any question affecting
the welfare of the infant and the court may make such an order as it thinks proper.
(2) The court may:
a. Give directions as it thinks proper regarding custody and right of access to the infant of
his father or mother
b. Order either parent to pay toward maintenance of the infant having regard to their
means (Reasonable)
- Therefore, where the payment of income or capital is necessary for the maintenance,
education or benefit of the infant, the court has the jurisdiction to make an order to this
effect.
Re O’Neill 1943
- The court has the inherent power to make an order for payment of maintenance out of a
minor’s capital under a trust.
- Must be necessary not just of benefit if the interest of the child in the fund is an interest in
remainder.
1. MAINTENANCE
• Refers to the power in trustees to apply the income of trust property towards the
maintenance of a beneficiary who is a minor or whose interest is still contingent
• May be necessary to use the income of the trust for their benefit before the interest
actually vests – don’t have to wait until the contingency occurs.
• Will be most apposite where the income is necessary for their maintenance, education
or benefit.
• Where income is required in this way, they can invoke a statutory or express to the
contrary – power of maintenance
• Court has both an inherent AND statutory jurisdiction to order provision:
Express
• Modern trusts will usually give trustees express power and the extent of the power,
where one is expressed – to be determined in accordance w the instrument
Statutory
• These can be expressly or impliedly excluded by the deed
CONVEYANCING ACT 1881
S 42
- The trustees may apply at discretion any income which, in the exercise of such discretion,
they deem proper, according to the infant‘s age, for his or her maintenance, education and
benefit, or pay thereout any money to the infant‘s parent or guardian to be applied for the
same purposes
- This power of maintenance applies only to income from land in which a minor has an
interest
S 43
- Where any property is held on trust for an infant the trustees may pay to their parents or
otherwise or otherwise apply for or towards – education, maintenance or benefit using the
income of that property
- This power applies only to a minor entitled for life or any greater interest in property and
whether absolutely or contingently on attaining 18 or upon the occurrence of some event
before that age.
- Shall accumulate the residue of that income and hold the accumulations for the benefit of
the person who ultimately becomes entitled to the property which the income arose from.
- Unless a contrary intention is expressed in the trust document.
, - Wont apply if the vesting of the interest is contingent on reaching an age greater than 18 or
on the occurrence of a future event AFTER attaining that age.
THE SUCCESSION ACT 1965
S 57
(1) Where an infant is entitled to any share in the estate of a deceased person and there aren’t
any trustees of such share able and willing to act – the deceased’s personal representatives
may appoint a trust corporation or any two or more persons (which can be the personal reps
or the corporation) to be trustees for the infant and can:
- Execute the assurance
- Take other action that’s necessary for vesting the share in the trustee
In default of appointment, personal representatives shall be the trustees
Court powers
GUARDIANSHIP OF INFANTS ACT 1961
S 11
(1) Any guardian of an infant may apply to the court for its direction on any question affecting
the welfare of the infant and the court may make such an order as it thinks proper.
(2) The court may:
a. Give directions as it thinks proper regarding custody and right of access to the infant of
his father or mother
b. Order either parent to pay toward maintenance of the infant having regard to their
means (Reasonable)
- Therefore, where the payment of income or capital is necessary for the maintenance,
education or benefit of the infant, the court has the jurisdiction to make an order to this
effect.
Re O’Neill 1943
- The court has the inherent power to make an order for payment of maintenance out of a
minor’s capital under a trust.
- Must be necessary not just of benefit if the interest of the child in the fund is an interest in
remainder.
