Section 62 — Protection of Personal and Property Rights Act 1988: Court may settle the beneficial interests of person subject to property order

62 Court may settle the beneficial interests of person subject to property order (1) A Court may direct a settlement to be made of all or any of the property of a person subject to a property order on such trusts and subject to such powers and provisions as the Court may think fit; and, in particular, the Court may give such directions— (a) Where the property has been acquired under a settlement or will, or on intestacy, or represents property so acquired; or (b) Where,— (i) By reason of any change in the law or of any change in circumstances since the execution by the person of a testamentary disposition; or (ii) By reason of any absence of information at the time of that execution; or (iii) On account of the former management of the property or the expenditure of money in improving or maintaining it; or (iv) For any other special reason,— the Court is satisfied that the devolution or distribution of the property of the person, either under any testamentary disposition or on intestacy, would be such as might cause injustice or hardship to any person. (2) A Court may direct the transfer by way of gift of any of the property of a person subject to a property order for the maintenance and benefit of members of the person's family or for the provision of other persons or purposes for whom or which the person might be expected to provide if he or she were able to manage his or her own affairs in relation to his or her property. (3) A Court may direct the manager, to execute any transfer or other instrument, and to do any other act or thing, that may be required for giving effect to the transfer or settlement, in the name and on behalf of the person, and for that purpose may make a vesting order or appoint a person to convey; and any settlement or transfer approved by the Court shall be as effectual and binding on all persons interested as if it had been made by the person while of full competence. (4) This section applies whether or not the person has executed a testamentary disposition and notwithstanding that it is not known whether the person has executed such a disposition or not, but does not apply when the person is a minor who is not married or in a civil union. (5) An application to a Court for an order under this section may be made by any of the following persons: (a) Any person who has or would have had any interest in the property of the person subject to a property order or any expectation of succession to any such property, whether that interest or expectation arises or could have arisen under a testamentary disposition that is known to exist or in the event of the intestacy of the person: (b) The manager: (c) Any other person who adduces proof of circumstances that, in the opinion of the Court, make it proper that that person should make the application. (6) Subject to making due provision for the maintenance of the person subject to a property order in accordance with his or her means and way of life, whether out of the capital or income of the property settled or other property or partly in one way and partly in another, and to providing, by means of a power of appointment or revocation, or otherwise, for the possibility of the person recovering full competence to manage his or her own affairs in relation to his or her property, the Court may, in making any order under this section, have regard to all or any of the following matters: (a) The manner in which the property has been settled or dealt with on former occasions: (b) In the case of any land or business, the welfare of the persons employed in connection with the land or business, and the expediency of settling other assets to devolve with the land or business: (c) The provisions of any testamentary disposition of the person subject to a property order: (d) The expediency of providing for— (i) Payments or annuities for the wife, husband, civil union partner, de facto partner, or children of the person subject to a property order or for other persons dependent on that person, and for other annual or capital charges and the power to create them: (ii) The continuation or provision of any superannuation or pension, and the application of any part of the income for charitable purposes: (iii) Discretionary trusts, trusts for effecting or maintaining policies of insurance, powers of appointment, sinking funds for making good any losses (instead of or in addition to insurance), or any other purposes: (iv) The extension of any statutory powers of investment, management, or otherwise: (v) The manner in which any costs are to be raised and paid, whether out of the settled property or otherwise: (vi) Any other matter or thing that the Court may consider material, having regard to the nature of the settlement, development, and enjoyment, and to the persons who are to take, either successively or otherwise. (7) At any time before the death of a person in respect of whom it has made an order under this section, and whether or not he or she is still subject to a property order, the Court may, in respect of any property remaining subject to the trusts of a settlement made under this section, on being satisfied that any material fact was not disclosed to the Court when the settlement was made, or on account of any substantial change in circumstances, by order vary the settlement in such manner as it thinks fit, and give any consequential directions. (8) Without limiting the provisions of section 111 of this Act, rules of Court may be made for all or any of the following purposes: (a) Giving effect to the provisions of this section: (b) Compelling information to be furnished respecting, and production of, testamentary dispositions, and their lodgment in Court: (c) Making representation orders. Subsection (4) was amended, as from 26 April 2005, by section 7 Relationships (Statutory References) Act 2005 (2005 No 3) by substituting the words “ a minor who is not married or in a civil union ” for the words “ an unmarried minor ” . Subsection (6)(d)(i) was amended, as from 26 April 2005, by section 7 Relationships (Statutory References) Act 2005 (2005 No 3) by inserting the words “ civil union partner, de facto partner, ” after the word “ husband, ” . Subsection (8) was amended, as from 13 September 2002, by section 6 Family Courts Amendment Act 2000 (2000 No 65) by substituting the words “ rules of Court may be made ” for the words “ rules may from time to time be made under that section ” . See clause 2 Family Courts Amendment Act Commencement Order 2002 (SR 2002/254).