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This is a Bill, not an Act. For current law, see the Acts databases.
South Australia
Julia Farr Services (Trusts)
Bill 2007
A BILL FOR
An Act to construe certain testamentary dispositions, trusts and gifts in
favour of the Home for Incurables, the Julia Farr Centre or Julia Farr Services
in favour of Julia Farr Association; and for other purposes.
Contents
1 Short
title
2 Commencement
3 Interpretation
4 Application of
Act
5 Dispositions, gifts and related powers to vest in JFA
6 Variation of
terms of trust
7 Alteration of rules of JFA
The Parliament of South Australia enacts as
follows:
This Act may be cited as the Julia Farr Services (Trusts)
Act 2007.
This Act will come into operation on a day to be fixed by
proclamation.
In this Act, unless the contrary intention appears—
designated entity means—
(a) the Home for Incurables Incorporated, or the Home for
Incurables; or
(b) Julia Farr Centre Inc. or Julia Farr Centre; or
(c) Julia Farr Services; or
(d) Julia Farr;
JFA means the Julia Farr Association Incorporated (a body
corporate under the Associations Incorporation Act 1985);
property includes real and personal property, and any estate
and interest in any property, real or personal, and any debt, and any thing in
action, and any other right or interest, whether in possession or not.
(1) This Act applies to a testamentary disposition, trust or gift made or
created before or after the commencement of this Act.
(2) Subject to subsection (3), this Act is in addition to, and does
not derogate from, the Trustee Act 1936.
(3) Section 69B of the Trustee Act 1936 does not apply to
a charitable trust to which this Act applies.
5—Dispositions,
gifts and related powers to vest in JFA
(1) Despite a provision of another Act or law—
(a) a testamentary disposition in favour of a designated entity will be
taken to be a testamentary disposition in favour of JFA; and
(b) a trust in favour of a designated entity will be taken to be a trust
in favour of JFA; and
(c) a testamentary disposition, trust or fund in favour of the residents
or patients of a designated entity, or for the benefit of residents or patients
at any place or places or facility or facilities owned or operated by a
designated entity, or formerly owned or operated by a designated entity, will be
taken to be a trust in favour of the residents or patients, or classes of
residents or patients, nominated by JFA from time to time by resolution of the
board of management of JFA; and
(d) a gift in favour of a designated entity (not being made by
testamentary disposition or under the terms of a trust) will be taken to be a
gift in favour of JFA.
(2) Without limiting the operation of subsection (1), a reference in
an instrument to a designated entity as trustee will be taken to be a reference
to JFA.
(3) Subsection (2)—
(a) does not affect the operation of the appointment of a trustee (a
new trustee) in place of a designated entity before the
commencement of this Act; and
(b) does not allow JFA to exercise a power to remove a new trustee who has
been so appointed.
(4) Nothing in this section operates to defeat the intention reflected by
the provisions or terms of a testamentary disposition, trust or gift that
provide that, should the beneficiary cease to exist, the testamentary
disposition, trust or gift was to lapse or was to be in favour of some other
person or body.
(5) Nothing in this section invalidates the execution, declaration or
creation of a testamentary disposition, trust or gift made or effected before
the commencement of this Act.
(6) For the purposes of this section, a reference to a testamentary
disposition includes a reference to a surrender or release effected by a
testamentary disposition.
(1) The purposes for which property the subject of a testamentary
disposition or trust referred to in section 5 is to be applied under a
trust may be varied by application under this section in the following
circumstances:
(a) if the original purposes, in whole or in part, cannot be carried out
according to any directions given and to the spirit of the gift that has been
made or the trust that has been created;
(b) if it is not reasonably practicable having regard to changes in
circumstances that have taken place since the constitution of any relevant trust
to apply the property in accordance with the original purposes;
(c) if the original purposes, in whole or in part, have ceased to provide
a suitable and effective method of using the property.
(2) An application for a variation of the terms of a trust under this
section must be made by JFA in a manner and form determined by the
Attorney-General.
(3) Notice of an application for variation of the terms of a trust under
this section must be given as the Attorney-General directs.
(4) The Attorney-General may refer an application to the Supreme Court if
the application raises questions that should, in the Attorney-General's opinion,
be decided by the Court.
(5) If the Attorney-General or the Supreme Court (as the case requires) is
satisfied that the variation of the terms of a trust—
(a) accords, as far as reasonably practicable, with the spirit of the
trust; and
(b) is justified in the circumstances of the particular case,
the Attorney-General or the Court may approve the variation and the trust
as varied prevails over any inconsistent provisions of a relevant instrument or
declaration of trust.
(6) The reasonable costs of an application under this section are payable
at the direction of the Attorney-General from the property in
question.
(7) In the case of an application decided by the Attorney-General, the
costs—
(a) are to be fixed by the Attorney-General; and
(b) may include costs payable to the Crown to defray the cost of
investigating and deciding the application; and
(c) may be recovered as a debt.
(8) The Attorney-General must keep available for public inspection a
register of approvals given under this section.
(9) For the purposes of this section—
(a) a reference to the original purposes of a trust will be construed
after taking into account the operation of section 5, and this section will
otherwise operate subject to any provision made under that section;
and
(b) a reference to the original purposes of a trust will be construed
after taking into account any other variations made by or under the operation of
any other Act or law, including by or under the terms of any declaration made by
a court.
(1) Any rule of JFA that provides—
(a) for the objects of JFA; or
(b) for the manner or circumstances of the winding up of JFA; or
(c) for the distribution of any property of JFA on the winding up of
JFA,
may not be altered except with the approval of the
Attorney-General.
(2) This section operates in addition to the requirements of the
Associations Incorporation Act 1985.