Western Australian Current Acts Western Australian Current Acts (1) Where any property
is held by a trustee and the property or any part thereof cannot be
distributed because the trustee does not know —
(a)
whether any person who is, or may be, entitled thereto is, or at any material
date was, in existence; or
(b)
whether all or any of the persons who are members of any class that is or may
be entitled thereto are, or at any material date were, in existence; or
(c)
whether any such person as is mentioned in paragraph (a) or (b) is alive or
dead or where he is to be found,
the trustee may
publish such advertisements (whether in the State or elsewhere) as are
appropriate in the circumstances calling upon every such person and every
person claiming through any such person to send in his claim within a time to
be specified in the advertisements, being, in any case, not less than 2 months
from the date on which the advertisement is published.
(2) Where the trustee
is in doubt as to what advertisements should be published under this section,
he may apply to the Court for directions in that regard.
(3) Where the trustee
has received (whether as a result of advertisements or not) a claim that any
person is a person to whom any advertisement made under this section relates,
or any notice that any person may claim to be such a person, and the trustee
is not satisfied that the claim is or would be valid, the trustee may serve
upon the claimant or the person of whom the trustee has notice as aforesaid, a
notice calling upon him, within a period of 3 months from the date of service
of the notice, to take legal proceedings to enforce the claim, if he wishes to
pursue it, and to prosecute the proceedings with all due diligence; and
advising him that, if he fails to do so, his claim may be disregarded and
application may be made to the Court without further notice for an order
authorising the distribution of the property.
(4) Nothing in
subsection (3) makes it necessary for the trustee to serve a notice therein
mentioned on any person; and the Court may make an order under this section,
whether or not such a notice has been served on any person, if it is satisfied
that the information supplied to the trustee by that person or otherwise in
the possession of the trustee indicates that the person is not one of the
persons specified in the advertisements or is not likely to be one of those
persons.
(5) Upon proof by
affidavit of the circumstances, and of the inquiries that have been made, and
of the results of the inquiries and advertisements, and of the claims of which
the trustee has received notice, and of the notices that the trustee has given
to claimants under subsection (3), and of the action (if any) that the
claimants have taken to enforce their claims, the Court may order that the
trustee be at liberty to distribute the property or part thereof, subject to
such conditions as the Court may impose —
(a) as
if every person and every member of any class of person specified in the order
(being all or any of the persons specified in the advertisements) is not in
existence or never existed or has died before a date or event specified in the
order; and
(b)
where as a consequence of the order it is not possible or practicable to
determine whether or not any condition or requirement affecting a beneficial
interest in the property or any part thereof has been complied with or
fulfilled, as if that condition or requirement had or had not been complied
with or fulfilled, as the Court may determine.
(6) In making any
order under subsection (5), the Court may —
(a)
disregard (without express reference thereto in the order) the claims of any
persons who do not appear to the Court to be, or likely to be, any of the
persons specified in the advertisements;
(b)
disregard (without express reference thereto in the order) the claim of any
person to whom the trustee has given notice under subsection (3) and who has
failed to take legal proceedings to enforce the claim or to prosecute any such
proceedings with all due diligence;
(c)
exclude from the operation of the order any person to whom the trustee has not
given notice under subsection (3) and who, in the opinion of the Court, may be
one of the persons specified in the advertisements, or any person whom the
Court considers should, for any reason, be excluded from the operation of the
order;
(d)
provide that the order shall not be acted on for such period or except on such
conditions as may be specified in the order or that the effect of the order
shall during a period so specified be advertised in such manner and form as
may be specified in the order, or that the order be served upon such person or
persons as are specified therein; and in the event of the Court exercising the
jurisdiction conferred by this paragraph it may in the order direct that the
order shall be of no effect in respect of any person specified therein in the
event of that person instituting proceedings in the State to enforce his claim
and serving the proceedings upon the trustee within such period as is
specified in the order.
(7) The Court may make
an order under this section notwithstanding that there has not been strict
compliance with any directions as to advertisements previously given by the
Court, or that an error has been made in any advertisement (whether or not any
directions have previously been given by the Court) if the Court considers
that the error would not be likely to have prejudiced or misled the persons to
whom the advertisement relates.
(8) Where the Court
makes an order under this section that the trustee may distribute any property
or part thereof as if every person and every member of any class of persons
specified in the order (not being a person expressly excluded from the
operation of the order) is not in existence or never existed or has died
before a date or event specified in the order, and the trustee distributes in
accordance with the order, the trustee shall be exonerated from any further
liability to any such person or to any member of any such class; but nothing
in this section affects any remedy that any person may have against any person
other than the trustee, including any right that he may have to follow the
property and any money or property into which it is converted.
(9) The Court may make
one or more orders under this section in respect of the same property.
(10) Any order made
under this section may direct how the costs of the order and of advertising
under or for the purposes of the order shall be borne.
(11) It shall not be
necessary to serve notice of an application for an order under this section
upon any person, unless the Court otherwise orders.
(12) Nothing in this
section affects the right of the trustee (if he so wishes) to distribute under
any other law or statutory provision or affects the protection thereby
afforded when he makes distribution pursuant to any such law or provision.