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Trusts (Hague Convention) Act 1991

Authoritative Version
Act No. 50 of 1991 as amended, taking into account amendments up to Norfolk Island Legislation Amendment Act 2015
An Act to give effect to the Convention on the law applicable to trusts and on their recognition, and for related purposes
Administered by: Attorney-General's
Registered 25 Jul 2016
Start Date 01 Jul 2016
Table of contents.

Trusts (Hague Convention) Act 1991

No. 50 of 1991

Compilation No. 1

Compilation date:                              1 July 2016

Includes amendments up to:            Act No. 59, 2015

Registered:                                         25 July 2016

 

About this compilation

This compilation

This is a compilation of the Trusts (Hague Convention) Act 1991 that shows the text of the law as amended and in force on 1 July 2016 (the compilation date).

The notes at the end of this compilation (the endnotes) include information about amending laws and the amendment history of provisions of the compiled law.

Uncommenced amendments

The effect of uncommenced amendments is not shown in the text of the compiled law. Any uncommenced amendments affecting the law are accessible on the Legislation Register (www.legislation.gov.au). The details of amendments made up to, but not commenced at, the compilation date are underlined in the endnotes. For more information on any uncommenced amendments, see the series page on the Legislation Register for the compiled law.

Application, saving and transitional provisions for provisions and amendments

If the operation of a provision or amendment of the compiled law is affected by an application, saving or transitional provision that is not included in this compilation, details are included in the endnotes.

Editorial changes

For more information about any editorial changes made in this compilation, see the endnotes.

Modifications

If the compiled law is modified by another law, the compiled law operates as modified but the modification does not amend the text of the law. Accordingly, this compilation does not show the text of the compiled law as modified. For more information on any modifications, see the series page on the Legislation Register for the compiled law.

Self‑repealing provisions

If a provision of the compiled law has been repealed in accordance with a provision of the law, details are included in the endnotes.

  

  

  


Contents

1............ Short title............................................................................................. 1

2............ Commencement................................................................................... 1

3............ Interpretation....................................................................................... 1

4............ Extension to external Territories.......................................................... 1

5............ Act to bind Crown.............................................................................. 1

6............ Provisions of Convention to have force of law................................... 2

7............ Act not to apply in relation to conflicts solely between State or Territory laws        2

Schedule—Convention on the law applicable to trusts and on their recognition          3

Endnotes                                                                                                                                    12

Endnote 1—About the endnotes                                                                            12

Endnote 2—Abbreviation key                                                                                14

Endnote 3—Legislation history                                                                             15

Endnote 4—Amendment history                                                                           16


An Act to give effect to the Convention on the law applicable to trusts and on their recognition, and for related purposes

1  Short title

                   This Act may be cited as the Trusts (Hague Convention) Act 1991.

2  Commencement

             (1)  Subject to subsection (2), this Act commences on a day to be fixed by Proclamation, being a day not earlier than the day on which the Convention enters into force for Australia.

             (2)  If this Act does not commence under subsection (1) within the period of 6 months beginning on the day on which the Convention enters into force for Australia, it commences on the first day after the end of that period.

3  Interpretation

             (1)  In this Act:

Convention means the Convention on the law applicable to trusts and on their recognition, done at The Hague on 1 July 1985, a copy of the English text of which is set out in the Schedule.

             (2)  Unless the contrary intention appears, a word or expression has the same meaning in this Act as it has in the Convention.

4  Extension to external Territories

                   This Act extends to the external Territories.

5  Act to bind Crown

                   This Act binds the Crown in right of the Commonwealth, of each of the States of the Commonwealth, of the Australian Capital Territory and of the Northern Territory.

6  Provisions of Convention to have force of law

                   Subject to this Act, the provisions of the Convention have the force of law in Australia.

7  Act not to apply in relation to conflicts solely between State or Territory laws

             (1)  This Act does not apply in relation to conflicts arising solely between laws of different States or Territories of the Commonwealth in respect of trusts.

             (2)  Subsection (1) does not preclude or limit the application of a law of a State or Territory of the Commonwealth that applies the provisions of the Convention in relation to conflicts of the kinds referred to in that subsection.


ScheduleConvention on the law applicable to trusts and on their recognition

Subsection 3(1)

The States signatory to the present Convention,

Considering that the trust, as developed in courts of equity in common law jurisdictions and adopted with some modifications in other jurisdictions, is a unique legal institution,

Desiring to establish common provisions on the law applicable to trusts and to deal with the most important issues concerning the recognition of trusts,

Have resolved to conclude a Convention to this effect, and have agreed upon the following provisions—

CHAPTER ONE—SCOPE

Article 1

This Convention specifies the law applicable to trusts and governs their recognition.

Article 2

For the purposes of this Convention, the term ‘trust’ refers to the legal relationships created—inter vivos or on death—by a person, the settlor, when assets have been placed under the control of a trustee for the benefit of a beneficiary or for a specified purpose.

A trust has the following characteristics—

a)   the assets constitute a separate fund and are not a part of the trustee’s own estate;

b)   title to the trust assets stands in the name of the trustee or in the name of another person on behalf of the trustee;

c)   the trustee has the power and the duty, in respect of which he is accountable, to manage, employ or dispose of the assets in accordance with the terms of the trust and the special duties imposed upon him by law.

The reservation by the settlor of certain rights and powers, and the fact that the trustee may himself have rights as a beneficiary, are not necessarily inconsistent with the existence of a trust.

Article 3

The Convention applies only to trusts created voluntarily and evidenced in writing.

Article 4

The Convention does not apply to preliminary issues relating to the validity of wills or of other acts by virtue of which assets are transferred to the trustee.

Article 5

The Convention does not apply to the extent that the law specified by Chapter II does not provide for trusts or the category of trusts involved.

CHAPTER II—APPLICABLE LAW

Article 6

A trust shall be governed by the law chosen by the settlor.

The choice must be express or be implied in the terms of the instrument creating or the writing evidencing the trust, interpreted, if necessary, in the light of the circumstances of the case.

Where the law chosen under the previous paragraph does not provide for trusts or the category of trust involved, the choice shall not be effective and the law specified in Article 7 shall apply.

Article 7

Where no applicable law has been chosen, a trust shall be governed by the law with which it is most closely connected.

In ascertaining the law with which a trust is most closely connected reference shall be made in particular to—

a)   the place of administration of the trust designated by the settlor;

b)   the situs of the assets of the trust;

c)   the place of residence or business of the trustee;

d)   the objects of the trust and the places where they are to be fulfilled.

Article 8

The law specified by Article 6 or 7 shall govern the validity of the trust, its construction, its effects, and the administration of the trust.

In particular that law shall govern—

a)   the appointment, resignation and removal of trustees, the capacity to act as a trustee, and the devolution of the office of trustee;

b)   the rights and duties of trustees among themselves;

c)   the right of trustees to delegate in whole or in part the discharge of their duties or the exercise of their powers;

d)   the power of trustees to administer or to dispose of trust assets, to create security interests in the trust assets, or to acquire new assets;

e)   the powers of investment of trustees;

f)    restrictions upon the duration of the trust, and upon the power to accumulate the income of the trust;

g)   the relationships between the trustees and the beneficiaries including the personal liability of the trustees to the beneficiaries;

h)   the variation or termination of the trust;

i)    the distribution of the trust assets;

j)    the duty of trustees to account for their administration.

Article 9

In applying this Chapter a severable aspect of the trust, particularly matters of administration, may be governed by a different law.

Article 10

The law applicable to the validity of the trust shall determine whether that law or the law governing a severable aspect of the trust may be replaced by another law.

CHAPTER III—RECOGNITION

Article 11

A trust created in accordance with the law specified by the preceding Chapter shall be recognized as a trust. Such recognition shall imply, as a minimum, that the trust property constitutes a separate fund, that the trustee may sue and be sued in his capacity as trustee, and that he may appear or act in this capacity before a notary or any person acting in an official capacity.

In so far as the law applicable to the trust requires or provides, such recognition shall imply, in particular—

a)   that personal creditors of the trustee shall have no recourse against the trust assets;

b)   that the trust assets shall not form part of the trustee’s estate upon his insolvency or bankruptcy;

c)   that the trust assets shall not form part of the matrimonial property of the trustee or his spouse nor part of the trustee’s estate upon his death;

d)   that the trust assets may be recovered when the trustee, in breach of trust, has mingled trust assets with his own property or has alienated trust assets. However, the rights and obligations of any third party holder of the assets shall remain subject to the law determined by the choice of law rules of the forum.

Article 12

Where the trustee desires to register assets, movable or immovable, or documents of title to them, he shall be entitled, in so far as this is not prohibited by or inconsistent with the law of the State where registration is sought, to do so in his capacity as trustee or in such other way that the existence of the trust is disclosed.

Article 13

No State shall be bound to recognize a trust the significant elements of which, except for the choice of the applicable law, the place of administration and the habitual residence of the trustee, are more closely connected with States which do not have the institution of the trust or the category of trust involved.

Article 14

The Convention shall not prevent the application of rules of law more favourable to the recognition of trusts.

CHAPTER IV—GENERAL CLAUSES

Article 15

The Convention does not prevent the application of provisions of the law designated by the conflicts rules of the forum, in so far as those provisions cannot be derogated from by voluntary act, relating in particular to the following matters—

a)   the protection of minors and incapable parties;

b)   the personal and proprietary effects of marriage;

c)   succession rights, testate and intestate, especially the indefeasible shares of spouses and relatives;

d)   the transfer of title to property and security interests in property;

e)   the protection of creditors in matters of insolvency;

f)    the protection, in other respects, of third parties acting in good faith.

If recognition of a trust is prevented by application of the preceding paragraph, the court shall try to give effect to the objects of the trust by other means.

Article 16

The Convention does not prevent the application of those provisions of the law of the forum which must be applied even to international situations, irrespective of rules of conflict of laws.

If another State has a sufficiently close connection with a case then, in exceptional circumstances, effect may also be given to rules of that State which have the same character as mentioned in the preceding paragraph.

Any Contracting State may, by way of reservation, declare that it will not apply the second paragraph of this Article.

Article 17

In the Convention the word ‘law’ means the rules of law in force in a State other than its rules of conflict of laws.

Article 18

The provisions of the Convention may be disregarded when their application would be manifestly incompatible with public policy (ordre public).

Article 19

Nothing in the Convention shall prejudice the powers of States in fiscal matters.

Article 20

Any Contracting State may, at any time, declare that the provisions of the Convention will be extended to trusts declared by judicial decisions.

This declaration shall be notified to the Ministry of Foreign Affairs of the Kingdom of the Netherlands and will come into effect on the day when this notification is received.

Article 31 is applicable to the withdrawal of this declaration in the same way as it applies to a denunciation of the Convention.

Article 21

Any Contracting State may reserve the right to apply the provisions of Chapter III only to trusts the validity of which is governed by the law of a Contracting State.

Article 22

The Convention applies to trusts regardless of the date on which they were created.

However, a Contracting State may reserve the right not to apply the Convention to trusts created before the date on which, in relation to that State, the Convention enters into force.

Article 23

For the purpose of identifying the law applicable under the Convention, where a State comprises several territorial units each of which has its own rules of law in respect of trusts, any reference to the law of that State is to be construed as referring to the law in force in the territorial unit in question.

Article 24

A State within which different territorial units have their own rules of law in respect of trusts is not bound to apply the Convention to conflicts solely between the laws of such units.

Article 25

The Convention shall not affect any other international instrument containing provisions on matters governed by this Convention to which a Contracting State is, or becomes, a Party.

CHAPTER V—FINAL CLAUSES

Article 26

Any State may, at the time of signature, ratification, acceptance, approval or accession, or at the time of making a declaration in terms of Article 29, make the reservations provided for in Articles 16, 21 and 22.

No other reservation shall be permitted.

Any Contracting State may at any time withdraw a reservation which it has made; the reservation shall cease to have effect on the first day of the third calendar month after notification of the withdrawal.

Article 27

The Convention shall be open for signature by the States which were Members of the Hague Conference on Private International Law at the time of its Fifteenth Session.

It shall be ratified, accepted or approved and the instruments of ratification, acceptance or approval shall be deposited with the Ministry of Foreign Affairs of the Kingdom of the Netherlands.

Article 28

Any other State may accede to the Convention after it has entered into force in accordance with Article 30, paragraph 1.

The instrument of accession shall be deposited with the Ministry of Foreign Affairs of the Kingdom of the Netherlands.

The accession shall have effect only as regards the relations between the acceding State and those Contracting States which have not raised an objection to its accession in the twelve months after the receipt of the notification referred to in Article 32. Such an objection may also be raised by Member States at the time when they ratify, accept or approve the Convention after an accession. Any such objection shall be notified to the Ministry of Foreign Affairs of the Kingdom of the Netherlands.

Article 29

If a State has two or more territorial units in which different systems of law are applicable, it may at the time of signature, ratification, acceptance, approval or accession declare that this Convention shall extend to all of its territorial units or only to one or more of them and may modify this declaration by submitting another declaration at any time.

Any such declaration shall be notified to the Ministry of Foreign Affairs of the Kingdom of the Netherlands and shall state expressly the territorial units to which the Convention applies.

If a State makes no declaration under this Article, the Convention is to extend to all territorial units of that State.

Article 30

The Convention shall enter into force on the first day of the third calendar month after the deposit of the third instrument of ratification, acceptance or approval referred to in Article 27.

Thereafter the Convention shall enter into force—

a)   for each State ratifying, accepting or approving it subsequently, on the first day of the third calendar month after the deposit of its instrument of ratification, acceptance or approval;

b)   for each acceding State, on the first day of the third calendar month after the expiry of the period referred to in Article 28;

c)   for a territorial unit to which the Convention has been extended in conformity with Article 29, on the first day of the third calendar month after the notification referred to in that Article.

Article 31

Any Contracting State may denounce this Convention by a formal notification in writing addressed to the Ministry of Foreign Affairs of the Kingdom of the Netherlands, depositary of the Convention.

The denunciation takes effect on the first day of the month following the expiration of six months after the notification is received by the depositary or on such later date as is specified in the notification.

Article 32

The Ministry of Foreign Affairs of the Kingdom of the Netherlands shall notify the States Members of the Conference and the States which have acceded in accordance with Article 28, of the following—

a)   the signatures and ratifications, acceptances or approvals referred to in Article 27;

b)   the date on which the Convention enters into force in accordance with Article 30;

c)   the accessions and the objections raised to accessions referred to in Article 28;

d)   the extensions referred to in Article 29;

e)   the declarations referred to in Article 20;

f)    the reservations or withdrawals referred to in Article 26;

g)   the denunciations referred to in Article 31.

IN WITNESS WHEREOF the undersigned, being duly authorized thereto, have signed this Convention.

DONE at The Hague, on the 1st day of July 1985, in English and French, both texts being equally authentic, in a single copy which shall be deposited in the archives of the Government of the Kingdom of the Netherlands, and of which a certified copy shall be sent, through diplomatic channels, to each of the States Members of the Hague Conference on Private International Law at the date of its Fifteenth Session.


Endnotes

Endnote 1—About the endnotes

The endnotes provide information about this compilation and the compiled law.

The following endnotes are included in every compilation:

Endnote 1—About the endnotes

Endnote 2—Abbreviation key

Endnote 3—Legislation history

Endnote 4—Amendment history

Abbreviation key—Endnote 2

The abbreviation key sets out abbreviations that may be used in the endnotes.

Legislation history and amendment history—Endnotes 3 and 4

Amending laws are annotated in the legislation history and amendment history.

The legislation history in endnote 3 provides information about each law that has amended (or will amend) the compiled law. The information includes commencement details for amending laws and details of any application, saving or transitional provisions that are not included in this compilation.

The amendment history in endnote 4 provides information about amendments at the provision (generally section or equivalent) level. It also includes information about any provision of the compiled law that has been repealed in accordance with a provision of the law.

Editorial changes

The Legislation Act 2003 authorises First Parliamentary Counsel to make editorial and presentational changes to a compiled law in preparing a compilation of the law for registration. The changes must not change the effect of the law. Editorial changes take effect from the compilation registration date.

If the compilation includes editorial changes, the endnotes include a brief outline of the changes in general terms. Full details of any changes can be obtained from the Office of Parliamentary Counsel.

Misdescribed amendments

A misdescribed amendment is an amendment that does not accurately describe the amendment to be made. If, despite the misdescription, the amendment can be given effect as intended, the amendment is incorporated into the compiled law and the abbreviation “(md)” added to the details of the amendment included in the amendment history.

If a misdescribed amendment cannot be given effect as intended, the abbreviation “(md not incorp)” is added to the details of the amendment included in the amendment history.

Endnote 2—Abbreviation key

 

ad = added or inserted

o = order(s)

am = amended

Ord = Ordinance

amdt = amendment

orig = original

c = clause(s)

par = paragraph(s)/subparagraph(s)

C[x] = Compilation No. x

    /sub‑subparagraph(s)

Ch = Chapter(s)

pres = present

def = definition(s)

prev = previous

Dict = Dictionary

(prev…) = previously

disallowed = disallowed by Parliament

Pt = Part(s)

Div = Division(s)

r = regulation(s)/rule(s)

ed = editorial change

reloc = relocated

exp = expires/expired or ceases/ceased to have

renum = renumbered

    effect

rep = repealed

F = Federal Register of Legislation

rs = repealed and substituted

gaz = gazette

s = section(s)/subsection(s)

LA = Legislation Act 2003

Sch = Schedule(s)

LIA = Legislative Instruments Act 2003

Sdiv = Subdivision(s)

(md) = misdescribed amendment can be given

SLI = Select Legislative Instrument

    effect

SR = Statutory Rules

(md not incorp) = misdescribed amendment

Sub‑Ch = Sub‑Chapter(s)

    cannot be given effect

SubPt = Subpart(s)

mod = modified/modification

underlining = whole or part not

No. = Number(s)

    commenced or to be commenced

 

Endnote 3—Legislation history

 

Act

Number and year

Assent

Commencement

Application, saving and transitional provisions

Trusts (Hague Convention) Act 1991

50, 1991

24 Apr 1991

1 Jan 1992 (s 2(1) and gaz 1991, No GN49)

 

 

Norfolk Island Legislation Amendment Act 2015

59, 2015

26 May 2015

Sch 2 (item 350): 1 July 2016 (s 2(1) item 5)
Sch 2 (items 356–396): 18 June 2015 (s 2(1) item 6)

Sch 2 (items 356–396)

 

as amended by

 

 

 

 

 

Territories Legislation Amendment Act 2016

33, 2016

23 Mar 2016

Sch 2: 24 Mar 2016 (s 2(1) item 2)

 

 

Endnote 4—Amendment history

 

Provision affected

How affected

s 5........................................

am No 59, 2015