PART I -
Preliminary
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Short title |
1. |
This
Act may be cited as the Trustee Act. |
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Interpretation |
2. |
(1) |
In this Act-
"authorised investments" mean
investments authorised by the instrument, if any,
creating the trust for the investment of money subject to the trust, or by
law;
"contingent
right", as applied to land includes a contingent or executory interest, a
possibility coupled with an interest, whether the object of the gift or
limitation of the interest, or possibility is or is not ascertained, also a
right of entry, whether immediate or future, and whether vested or
contingent;
"convey" and
"conveyance" as applied to any person include the execution by that person
of every necessary or suitable assurance (including an assent) for
conveying, assigning, appointing, surrendering, or otherwise transferring or
disposing of land whereof he is seized or possessed, or wherein he is
entitled to a contingent right, either for his whole estate or for any less
estate, together with the performance of all formalities required by law for
the validity of the conveyance;
"Court" means
the High Court or a Judge thereof;
"income"
includes rents and profits;
"land"
includes land of any tenure, houses and other buildings, mines and minerals,
and other corporeal hereditaments; also a rent and other incorporeal
hereditaments, and an easement, right, privilege, or benefit in, over, or
derived from land, and also an undivided share in land; and in this
definition "mines and minerals" include any strata or seam of minerals or
substances in or under any land, and powers of working and winning the same;
and hereditaments mean real property which under an intestacy devolve on the
next of kin;
"mortgage" and
"mortgagee" include a charge or chargee by way of mortgage and relate to
every estate and interest regarded in equity as merely a security for money,
and every person deriving title under the original mortgagee, and also
include and relate to an encumbrance under the Title by Registration Act;
"pay" and
"payment" as applied in relation to stocks and securities and in connexion
with the expression "into court" include the deposit or transfer of the same
in or into court;
"personal
representative" means the executor or administrator for the time being of a
deceased person;
"person
resident in the Territory" means a person who ordinarily resides within the
Territory or carries on business from an office or other fixed place of
business within the Territory but does not include a company incorporated
under the International Business Companies Act;
"possession"
includes receipt of rents and profits or the right to receive the same, if
any; and "possessed" applies to receipt of income of and to any vested
estate less than a life interest in possession or in expectancy in any land;
"property"
includes real and personal property, and any estate, share 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;
"rights"
include estates and interests;
"sale"
includes an exchange;
"securities"
include stocks, funds, and shares; and so far as relate to payments into
court have the same meaning as in the enactments relating to funds in the
Court; and "securities payable to bearer" include securities transferable by
delivery or by delivery and endorsement;
"settlor"
includes a person who transfers property by way of gift or who makes a
testamentary disposition on trust or to a trust;
"stock"
includes fully paid up shares, and so far as relates to vesting orders made
by the Court under this Act, includes any fund, annuity, or security
transferable in books kept by any company or society, or by instrument of
transfer either alone or accompanied by other formalities, and any share or
interest therein;
"transfer" in
relation to stock or securities, includes the performance and execution of
every deed, power of attorney, act, and thing on the part of the transferor
to effect and complete the title in the transferee;
"trust for
sale" in relation to land means an immediate binding trust for sale, whether
or not exercisable at the request or with the consent of any person, and
with or without power at discretion to postpone the sale;
"trustees for
sale" means the persons (including a personal representative) holding land
on trust for sale. |
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(2) |
For the
purposes of this Act the term "trust" refers to the legal relationship
created, either inter vivos or on death, by a settlor when assets have been
placed under the control of a trustee for the benefit of a beneficiary or
for a special purpose. |
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(3) |
A trust has the following characteristics: |
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(a) |
the assets constitute a separate fund and are not part of
the trustee's own estate; |
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(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; and |
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(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 on him
by law. |
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(4) |
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. |
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(5) |
A trust does not include the duties incident to an estate
conveyed by way of mortgage but it does extend to |
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(a) |
implied trusts; |
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(b) |
constructive trusts; and |
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(c) |
the duties incident to the office of a personal
representative. |
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Authorised Investments. |
3. |
Subject to any provision contained in the instrument creating the trust, a
trustee may at any time invest any portion of the trust funds in any kind of
investment |
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(a) |
wherever the investment is situate; and |
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(b) |
whether or not at the time the funds are already in a state of investment; |
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and he may vary the investment or retain it in its original state as long as
he exercises the diligence and prudence that a reasonable person would be
expected to exercise in making an investment as if it were his own money. |
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Investment in bearer securities |
4. |
(1) |
A trustee may, unless expressly prohibited by the instrument creating the
trust, retain or invest in securities payable to bearer, which, if not so
payable, would have been an authorised investment, except that securities to
bearer retained or taken as an investment by a trustee shall, until sold, be
retained in safe custody. |
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(1A) |
A direction that investments be retained or made in the
name of a trustee shall not, for the purposes of subsection (1), be deemed
to be an express prohibition. |
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(2) |
A trustee shall not be responsible for any loss incurred
by reason of such deposit, and any sum payable in respect of such deposit
and collection shall be paid out of the income of the trust property. |
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Discretion of trustees. |
5. |
Every power conferred by the preceding sections shall be
exercised according to the discretion of the trustee, but subject to any
consent or direction required by the instrument, if any, creating the trust
with respect to the investment of the trust funds. |
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Power to retain investment which has ceased to be authorised. |
6. |
A trustee shall not be liable for breach of trust by
reason only of his continuing to hold an investment which has ceased to be
an investment authorised by the trust instrument or by the general law. |
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Loans and investments by trustees not chargeable as breaches
of trust. |
7. |
(1) |
A trustee lending money on the security of any property
on which he can properly lend shall not be chargeable with breach of trust
by reason only of the proportion borne by the amount of the loan to the
value of the property at the time when the loan was made, if it appears to
the Court - |
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(a) |
that in making the loan the trustee was acting upon a
report as to the value of the property made by a person whom he reasonably
believed to be an able practical surveyor or valuer instructed and employed
independently of any owner of the property, whether such surveyor or valuer
carried on business in the locality where the property is situate or
elsewhere; and |
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(b) |
that the amount of the loan does not exceed two-third
parts of the value of the property as stated in the report; and |
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(c) |
that the loan was made under the advice of the surveyor
or valuer expressed in the report. |
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(2) |
A trustee shall not be chargeable with breach of trust
only upon the ground that in effecting the purchase, or in lending money
upon the security, of any property he has accepted a shorter title than the
title which a purchaser is, in the absence of a special contract, entitled
to require if in the opinion of the Court the title accepted be such as a
person acting with prudence and caution would have accepted. |
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(3) |
This section applies to transfers of existing securities
as well as to new securities and to investments made before as well as after
the commencement of this Act. |
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Liability for loss by reason of improper investment. |
8. |
(1) |
Where a trustee improperly advances trust money on a
mortgage security which would at the time of the investment be a proper
investment in all respects for a smaller sum than is actually advanced
thereon, the security shall be deemed an authorised investment for the
smaller sum, and the trustee shall only be liable to make good the sum
advanced in excess thereof with interest. |
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(2) |
This section applies to investments made before as well
as after the commencement of this Act. |
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Powers supplementary of powers of investment. |
9. |
(1) |
Trustees lending money on the security of any property on
which they can lawfully lend may contract that such money shall not be
called in during any period not exceeding seven years from the time when the
loan was made, provided interest be paid within a specified time not
exceeding thirty days after it becomes due, and provided there be no breach
of any covenant by the mortgagor contained in the instrument of mortgage or
charge for the maintenance and protection of the property. |
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(2) |
On a sale of land for an
estate in fee simple, trustees may, where the proceeds are liable to be
invested, contract that the payment of any part, not exceeding two-thirds,
of the purchase money shall be secured by a charge by way of first mortgage
of the land sold, with or without the security of any other property, such
charge or mortgage, if any buildings are comprised in the mortgage, to
contain a covenant by the mortgagor to keep them insured against loss or
damage by fire to the full value thereof.
The trustees shall not be bound
to obtain any report as to the value of the land or other property to be
comprised in such charge or mortgage, or any advice as to the making of the
loan, and shall not be liable for any loss which may be incurred by reason
only of the security being insufficient at the date of the charge or
mortgage. |
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(3) |
Where any securities of a company are subject to a trust,
the trustees may concur in any scheme or arrangement- |
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(a) |
for the reconstruction of the company, |
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(b) |
for the sale of all or any part of the property and
undertaking of the company to another company, |
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(c) |
for the amalgamation of the company with another company,
or |
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(d) |
for the release , modification, or variation of any
rights, privileges or liabilities attached to the securities or any of them, |
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in like manner as if they were entitled to such
securities beneficially, with power to accept any securities of any
denomination or description of the reconstructed or purchasing or new
company in lieu of or in exchange for all or any of the first-mentioned
securities; and the trustees shall not be responsible for any loss
occasioned by any act or thing so done in good faith, and may retain any
securities so accepted as aforesaid for any period for which they could have
properly retained the original securities. |
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(4) |
If any
conditional or preferential right to subscribe for any securities in any
company is offered to trustees in respect of any holding in such company,
they may as to all or any of such securities, either exercise such right and
apply capital money subject to the trust in payment of the consideration, or
renounce such right, or assign for the best consideration that can be
reasonably obtained the benefit of such right or the title thereto to any
person, including any beneficiary under the trust, without being responsible
for any loss occasioned by any act or thing so done by them in good faith:
Provided that
the consideration for any such assignment shall be held as capital money of
the trust. |
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(5) |
The powers conferred by this section shall be exercisable
subject to the consent of any person whose consent to a change of investment
is required by law or by the instrument, if any, creating the trust. |
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(6) |
Where the loan referred to in subsection (1), or the sale
referred to in subsection (2), is made under the order of the Court, the
powers conferred by those subsections respectively shall apply only if and
as far as the Court may by order direct. |
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Power to deposit money at bank and to pay calls. |
10. |
(1) |
Trustees may, pending the negotiation and preparation of
any mortgage or charge, or during any other time while an investment is
being sought for, pay any trust money into a bank to a deposit or other
account, and all interest, if any, payable in respect thereof shall be
applied as income. |
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(2) |
Trustees may apply capital money subject to a trust in
payment of the calls on any shares subject to the same trust. |
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PART III -
General Powers of Trustees and Personal Representatives
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Power of trustees for sale to sell by auction or private
contract |
11. |
(1) |
Where a trust for sale or a power of sale of property is
vested in a trustee, he may sell or concur with any other person in selling
all or any part of the property, either subject to prior charges or not, and
either together or in lots, by public auction or by private contract,
subject to any such conditions respecting title or evidence of title or
other matter as the trustee thinks fit, with power to vary any contract for
sale, and to buy in at any auction, or to rescind any contract for sale and
to re-sell, without being answerable for any loss. |
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(2) |
A trust or power to sell or dispose of land includes a
trust or power to sell or dispose of part thereof, whether the division is
horizontal, vertical, or made in any other way. |
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Power to postpone sale. |
12. |
(1) |
A power to postpone sale shall, in the case of every
trust for sale of land, be implied unless a contrary intention appears. |
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(2) |
Where there is a power to postpone the sale then (subject
to any express direction to the contrary in the instrument, if any, creating
the trust for sale) the trustees for sale shall not be liable in any way for
postponing the sale, in the exercise of their discretion, for any indefinite
period; nor shall a purchaser of a legal estate be concerned in any case
with any directions respecting the postponement of a sale. |
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(3) |
The foregoing provisions of this section apply whether
the trust for sale is created before or after the commencement of this
Act. |
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(4) |
Where a disposition or settlement coming into operation
after the commencement of this Act contains a trust either to retain
or sell land the same shall be construed as a trust to sell the land with
power to postpone the sale. |
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Trust for sale of mortgaged property where right of
redemption is barred |
13. |
(1) |
Where any property, vested in trustees by way of
security, becomes, by virtue of any enactment relating to the limitation of
actions, or of an order for foreclosure or otherwise, discharged from the
right of redemption, it shall be held by them on trust for sale. |
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(2) |
The net proceeds of sale, after payment of costs and
expenses, shall be applied in like manner as the mortgage debt, if received,
would have been applicable, and the income of the property until sale shall
be applied in like manner as the interest, if received, would have been
applicable; but this subsection operates without: prejudice to any rule of
law relating to the apportionment of capital and income between tenant for
life and remainderman. |
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(3) |
This section does not affect the right of any person to
require that, instead of a sale, the property shall be conveyed to him or in
accordance with his directions. |
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Power to sell subject to depreciatory conditions |
14. |
(1) |
No sale made by a trustee shall be impeached by any
beneficiary upon the ground that any of the conditions subject to which the
sale was made may have been unnecessarily depreciatory, unless it also
appears that the consideration for the sale was thereby rendered inadequate. |
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(2) |
No sale made by a trustee shall, after the execution of
the conveyance, be impeached as against the purchaser upon the ground that
any of the conditions subject to which the sale was made may have been
unnecessarily depreciatory, unless it appears that the purchaser was acting
in collusion with the trustee at the time when the contract for sale was
made. |
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(3) |
No purchaser, upon any sale made by a trustee, shall be
at liberty to make any objection against the title upon any of the grounds
aforesaid. |
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(4) |
This section applies to sales made before or after the
commencement of this Act. |
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Power of trustees to give receipts |
15. |
(1) |
The receipt in writing of a trustee for any money,
securities, or other personal property or effects payable, transferable, or
deliverable to him under any trust or power shall be a sufficient discharge
to the person paying, transferring, or delivering the same and shall
effectually exonerate him from seeing to the application or being answerable
for any loss or misapplication thereof. |
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(2) |
This section applies notwithstanding anything to the
contrary in the instrument, if any, creating the trust. |
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Power to compound liabilities |
16. |
A personal representative, or two or more trustees acting
together (or in the case of a trust created on or after the date on which
section 3 of the Trustee (Amendment) Act, 2003 comes into force, a personal
representative or a trustee) may, if and as he or they think fit - |
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(a) |
accept any property, real or personal, before the time at
which it is made transferable or payable; or |
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(b) |
sever and apportion any blended trust funds or property;
or |
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(c) |
pay or allow any debt or claim on any evidence that he or
they think sufficient; or |
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(d) |
accept any composition or any security, real or personal,
for any debt or for any property, real or personal, claimed; or |
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(e) |
allow any time of payment of any debt; or |
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(f) |
compromise, compound, abandon, submit to arbitration, or
otherwise settle any debt, account, claim, or thing whatever relating to the
testator's or intestate’s estate or to the trust; |
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and for any of those purposes may enter into, give,
execute, and do such agreements, instruments of composition or arrangement,
releases, and other things as to him or them seem expedient, without being
responsible for any loss occasioned by any act or thing so done by him or
them in good faith. |
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Power to raise money by sale, mortgage, or otherwise |
17. |
(1) |
Where trustees are authorised by the instrument, if any,
creating the trust or by law to pay or apply capital money subject to the
trust for any purpose or in any manner, they shall have and shall be deemed
always to have had power to raise the money required by sale, conversion,
calling in, or mortgage of all or any part of the trust property for the
time being in possession. |
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(2) |
This section applies notwithstanding anything to the
contrary contained in the instrument, if any, creating the trust. |
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Validation of appointment where objects are excluded or take
illusory shares |
18. |
(1) |
No appointment made in exercise of any power to appoint any property among
two or more objects shall be invalid on the ground that |
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(a) |
an unsubstantial, illusory or nominal share only is appointed to or left
unappointed to devolve upon any one or more of the objects of the power; or |
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(b) |
any object of the power is thereby altogether excluded, |
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but every such appointment shall be valid notwithstanding that any one or
more of the objects is not thereby, or in default of appointment, to take
any share in the property, |
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(2) |
No selection made in exercise of any power to select among two or more
beneficiaries shall be invalid on the ground that any beneficiary is thereby
altogether excluded. |
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(3) |
This section does not affect any provision in the instrument creating the
power which declares the amount or the share or shares, or any selection,
from which any object of the power is not to be excluded. |
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(4) |
In this section, "share" shall include a contingent or limited interest in
capital or income. |
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(5) |
This section applies to appointments made before, on or after the date on
which this section comes into force. |
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Devolution of powers or trusts |
19. |
(1) |
Where a power or trust is given to or imposed on two or
more trustees jointly, the same may be exercised or performed by the
survivors or survivor of them for the time being. |
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(2) |
Until the appointment of new trustees, the personal
representatives or representative for the time being of a sole trustee, or,
where there were two or more trustees, of the last surviving or continuing
trustee, shall be capable of exercising or performing any power or trust
which was given to, or capable of being exercised by, the sole or last
surviving or continuing trustee, or other the trustees or trustee for the
time being of the trust. |
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(3) |
In this section "personal representative" does not
include an executor who has renounced or has not proved. |
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Power to insure |
20. |
(1) |
A trustee may insure against loss or damage by fire any
buildings or other insurable property to any amount, including the amount of
any insurance already on foot, not exceeding the value of the building or
property, and pay the premiums for such insurance out of the income thereof
or out of the income of any other property subject to the same trusts
without obtaining the consent of any person who may be entitled wholly or
partly to such income. |
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(2) |
This section does not apply to any building or property
which a trustee is bound forthwith to convey absolutely to any beneficiary
upon being requested to do so. |
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Application of insurance money where policy kept up under any
trust, power or obligation |
21. |
(1) |
Money receivable by trustees or any beneficiary under a
policy of insurance against the loss or damage of any property subject to a
trust or to a settlement whether by fire or otherwise, shall, where the
policy has been kept up under any trust in that behalf or under any power
statutory or otherwise, or in performance of any covenant or of any
obligation statutory or otherwise, or by a tenant for life impeachable for
waste, be capital money for the purposes of the trust or settlement, as the
case may be. |
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(2) |
If any such money is receivable by any person, other than
the trustees of the trust or settlement, that person shall use his best
endeavours to recover and receive the money and shall pay the net residue
thereof, after discharging any costs of recovering and receiving in, to the
trustees of the trust or settlement, or, if there are not trustees capable
of giving a discharge therefor, into Court. |
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(3) |
Any such money- |
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(a) |
if it was receivable in respect of property held upon
trust for sale, shall be held upon the trusts and subject to the powers and
provisions applicable to money arising by a sale under such trust; |
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(b) |
in any other case, shall be held upon trusts
corresponding as nearly as may be with the trusts affecting the property in
respect of which it was payable. |
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(4) |
Such money, or any part thereof, may also be applied by
the trustees, or, if in Court, under the direction of the Court, in
rebuilding, reinstating, replacing, or repairing the property lost or
damaged, but any such application by the trustees shall be subject to the
consent of any person whose consent is required by the instrument, if any,
creating the trust to the investment of money subject to the trust. |
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(5) |
Nothing contained in this section shall prejudice or
affect the right of any person to require any such money or any part thereof
to be applied in rebuilding, reinstating, or repairing the property lost or
damaged, or the rights of any mortgagee, lessor, or lessee, whether under
any law or otherwise. |
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(6) |
This section applies to policies effected either before
or after the commencement of this Act, but only to money received
after such commencement. |
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Deposit of documents for safe custody |
22. |
Trustees may deposit any documents held by them relating
to the trust, or to trust property, with any banker or banking company or
any other company whose business includes the undertaking of the safe
custody of documents, and any sum payable in respect of such deposit shall
be paid out of the income of the trust property. |
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Reversionary interests, valuations, and audit |
23. |
(1) |
Where trust property includes any share or interest in
property not vested in the trustees, or the proceeds of the sale of any such
property, or any other thing in action, the trustees on the same falling
into possession or becoming payable or transferable may- |
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(a) |
agree or ascertain the value thereof or any part thereof
in such manner as they may think fit; |
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(b) |
accept in or towards satisfaction thereof, at the market
or current value, or upon any valuation or estimate or value which they may
think fit, any authorised investments; |
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(c) |
allow any deductions for duties, costs, charges and
expenses which they think proper or reasonable; |
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(d) |
execute any release in respect of the premises so as
effectually to discharge all accountable parties from all liability in
respect of any matters coming within the scope of such release, |
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without being responsible in any such case for any loss
occasioned by any act or thing so done by them in good faith. |
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(2) |
The trustees shall not be under any obligation and shall
not be chargeable with any breach of trust by reason of any omission- |
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(a) |
to place any distringas notice or apply for any stop or
other like order upon any securities or other property out of or in which
such share or interest or other thing in action as aforesaid is derived,
payable or charged; or |
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(b) |
to take any proceedings on account of any act, default,
or neglect on the part of the persons in whom such securities or other
property or any of them or any part thereof are for the time being, or had
at any time been, vested, |
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unless and until required in writing so to do by some
person, or the guardian of some person, beneficially interested under the
trust, and unless also due provision is made to their satisfaction for
payment of the costs of any proceedings required to be taken:
Provided that nothing in this subsection shall relieve
the trustees of the obligation to get in and obtain payment or transfer of
such share or interest or other thing in action on the same falling into
possession. |
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(3) |
Trustees may, for the purpose of giving effect to the
trust, or any of the provisions of the instrument, if any, creating the
trust or of any law, from time to time (by duly qualified agents) ascertain
and fix the value of any trust property in such manner as they think proper,
and any valuation so made in good faith shall be binding upon all persons
interested under the trust. |
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(4) |
Trustees may, in their absolute discretion, from time to
time, but not more than once in every three years unless the nature of the
trust or any special dealings with the trust property make a more frequent
exercise of the right reasonable, cause the accounts of the trust property
to be examined or audited by an independent accountant, and shall, for that
purpose, produce such vouchers and give such information to him as he may
require; and the costs of such examination or audit including the fee of the
auditor, shall be paid out of the capital or income of the trust property,
or partly in one way and partly in the other, as the trustees, in their
absolute discretion, think fit, but, in default of any direction by the
trustees to the contrary in any special case, costs, attributable to capital
shall be borne by capital and those attributable to income by income. |
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Powers to employ agents |
24. |
(1) |
Trustees or personal representatives may, instead of
acting personally, employ and pay an agent, whether a solicitor, banker,
stockbroker, or other person, to transact any business or do any act
required to be transacted or done in the execution of the trust, or the
administration of the testator's or intestate’s estate, including the
receipt and payment of money, and shall be entitled to be allowed and paid
all charges and expenses so incurred, and shall not be responsible for the
default of any such agent if employed in good faith. |
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(2) |
Trustees or personal representatives may appoint any
person to act as their agent or attorney for the purpose of selling,
converting, collecting, getting in, and executing and perfecting assurances
of, or managing or cultivating, or otherwise administering, any property
subject to the trust or forming part of the testator's or intestate’s estate
in any place outside the Territory, or executing or exercising any
discretion or trust or power vested in them in relation to any such
property, with such ancillary powers, and with and subject to such
provisions and restrictions as they may think fit, including a power to
appoint substitutes, and shall not, by reason only of their having made such
appointment, be responsible for any loss arising thereby. |
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(3) |
Without prejudice to such general power of appointing
agents as aforesaid- |
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(a) |
a trustee may appoint a solicitor to be his agent to
receive and give a discharge for any money or valuable consideration or
property receivable by the trustee under the trust, by permitting the
solicitor to have the custody of, and to produce a deed having in the body
thereof or endorsed thereon a receipt for such money or valuable
consideration or property, the deed being executed, or the endorsed receipt
being signed, by the person entitled to give a receipt for that
consideration; |
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(b) |
a trustee shall not be chargeable with breach of trust by
reason only of his having made or concurred in making any such appointment;
and the production of any such deed by the solicitor shall have the same
statutory validity and effect as if the person appointing the solicitor had
not been a trustee; |
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(c) |
a trustee may appoint a banker or solicitor to be his
agent to receive and give a discharge for any money payable to the trustee
under or by virtue of a policy of insurance, by permitting the banker or
solicitor to have the custody of and to produce the policy of insurance with
a receipt signed by the trustee, and a trustee shall not be chargeable with
a breach of trust by reason only of his having made or concurred in making
such appointment: |
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Provided that
nothing in this subsection shall exempt a trustee from any liability which
he would have incurred if this Act had not been passed, in case he
permits any such money, valuable consideration, or property to remain in the
hands or under the control of the banker or solicitor for a period longer
than is reasonably necessary to enable the banker or solicitor, as the case
may be, to pay or transfer the same to the trustee.
This
subsection applies whether the money or valuable consideration or property
was or is received before or after the commencement of this Act. |
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Power to concur with others |
25. |
Where an undivided share in the proceeds of sale of land
directed to be sold, or in any other property, is subject to a trust, or
forms part of the estate of a testator or intestate, the trustees or
personal representative may (without prejudice to the trust for sale
affecting the entirety of the land and the powers of the trustees for sale
in reference thereto) execute or exercise any trust or power vested in them
in relation to such share in conjunction with the persons entitled to or
having power in that behalf over the other share or shares, and
notwithstanding that any one or more of the trustees or personal
representatives may be entitled to or interested in any such other share,
either in his or their own right or in a fiduciary capacity. |
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Power to delegate trusts during absence abroad |
26. |
(1) |
A trustee may, notwithstanding any rule of law or equity
to the contrary, by power of attorney delegate to any person the execution
or exercise of all or any trusts, powers and discretions vested in him as
such trustee, either alone or jointly with any other person. |
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(2) |
The donor of a power of attorney given under this section
shall be liable for the acts or defaults of the donee in the same manner as
if they were the acts or defaults of the donor. |
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(3) |
deleted. |
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(4) |
In favour of any person dealing with the donee, any act
done or instrument executed by the donee shall, notwithstanding that the
power has never come into operation or has become revoked by the act of the
donor or by his death or otherwise, be as valid and effectual as if the
donor were alive and of full capacity, and had himself done such act or
executed such instrument, unless such person had actual notice that the
power had never come into operation or of the revocation of the power before
such act was done or instrument executed. |
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(5) |
For the purpose of executing or exercising the trusts or
powers delegated to him, the donee may exercise any of the powers conferred
on the donor as trustee by law or by the instrument creating the trust,
including power, for the purpose of the transfer of any inscribed stock,
himself to delegate to an attorney power of transfer but not including the
power to delegation conferred by this section. |
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(6) |
The fact that it appears from any power of attorney given
under this section that in dealing with any stock the donee of the power is
acting in the execution of a trust shall not be deemed for any purpose to
affect any person in whose books the stock is inscribed or registered with
any notice of the trust. |
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Protection against liability in respect of rents and
covenants |
27. |
(1) |
Where a personal representative or trustee liable as such for- |
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(a) |
any rent, covenant, or agreement reserved by or contained
in any lease; or |
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(b) |
any rent, covenant or agreement payable under or
contained in any grant made in consideration or a rent-charge; or |
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(c) |
any indemnity given in respect of any rent, covenant or
agreement referred to in either of the foregoing paragraphs, |
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satisfies all liabilities under the lease or grant which
may have accrued, or been claimed, up to the date of the conveyance
hereinafter mentioned, and, where necessary, sets apart a sufficient fund to
answer any future claim that may be made in respect of any fixed and
ascertained sum which the lessee or grantee agreed to lay out on the
property demised or granted, although the period for laying out the same may
not have arrived, then and in any such case the personal representative or
trustee may convey the property demised or granted to a purchaser, legatee,
devisee, or other person entitled to call for a conveyance thereof, and
thereafter- |
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(i) |
he may distribute the residuary real and personal estate
of the deceased testator or intestate, or, as the case may be, the trust
estate (other than the fund, if any, set apart as aforesaid) to or amongst
the persons entitled thereto, without appropriating any part, or any further
part, as the case may be, of the estate of the deceased or of the trust
estate to meet any future liability under the said lease or grant; |
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(ii) |
notwithstanding such distribution, he shall not be personally liable in
respect of any subsequent claim under the said lease or grant. |
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(2) |
This section operates without prejudice to the right, of the lessor or grantor, or the persons deriving title under the lessor
or grantor, to follow the assets of the deceased or the trust property into the
hands of the persons amongst whom the same may have been respectively
distributed, and applies notwithstanding anything to the contrary in the will or
other instrument, if any, creating the trust. |
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(3) |
In this section "lease" includes an underlease
and an agreement for a lease or underlease and any instrument giving any such
indemnity as aforesaid or varying the liabilities under the lease; "grant"
applies to a grant whether the rent is created by limitation, grant,
reservation, or otherwise, and includes an agreement for a grant and any
instrument giving any such indemnity as aforesaid or varying the liabilities
under the grant; "lessee" and "grantee" include persons respectively deriving
title under them. |
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Protection by means of advertisement |
28. |
(1) |
With a view to the conveyance to or distribution among the persons entitled
to any real or personal property, the trustees of a settlement or of a
disposition on trust for sale, or personal representatives, may give notice
by advertisement in the Gazette, and in a local newspaper, and such other
like notices, including notices elsewhere than in the Territory, as would,
in any special case, have been directed by the Court in an action for
administration, of their intention to make such conveyance or distribution
as aforesaid, and requiring any person interested to send to the trustees or
personal representatives within the time, not being less than twenty-eight
days, fixed in the notice, or, where more than one notice is given, in the
last of the notices, particulars of his claim in respect of the property or
any part thereof to which the notice relates. |
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(2) |
At the expiration of the time fixed by the notice the trustees or personal
representatives may convey or distribute the property or any part thereof to
which the notice relates, to or among the persons entitled thereto, having
regard only to the claims, whether formal or not, of which the trustees or
personal representatives then had notice and shall not, as respects the
property so conveyed or distributed, be liable to any person of whose claim
the trustees or personal representatives have not had notice at the time of
conveyance or distribution; but nothing in this section prejudices the right
of any person to follow the property, or any property representing the same,
into the hands of any person who may have received it. |
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(3) |
This section applies notwithstanding anything to the contrary in the will or
other instrument, if any, creating the trust. |
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Protection in regard to notice |
29. |
A trustee or personal representative acting for the purposes of more than
one trust or estate shall not, in the absence of fraud, be affected by
notice of any instrument, matter, fact or thing in relation to any
particular trust, or estate if he has obtained notice thereof merely by
reason of his acting or having acted for the purposes of another trust or
estate. |
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Exoneration of trustees in respect of certain powers of
attorney |
30. |
A trustee acting
or paying money in good faith under or in pursuance of any power of attorney
shall not be liable for any such act or payment by reason of the fact that at
the time of the act or payment the person who gave the power of attorney was
subject to any disability, or bankrupt, or dead, or had done or suffered some
act or thing to avoid the power, if this fact was not known to the trustee at
the time of his so acting or paying:
Provided that-
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(a) |
nothing in this section shall affect the right of any person entitled to the
money against the person to whom the payment is made; |
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(b) |
the person so entitled shall have the same remedy against the person to whom
the payment is made as he would have had against the trustee. |
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Implied indemnity of trustees |
31. |
(1) |
A trustee shall be chargeable only for money and securities actually
received by him notwithstanding his signing any receipt for the sake of
conformity, and shall be answerable and accountable only for his own acts,
receipts, neglects, or defaults, and not for those of any other trustee, nor
for any banker, broker, or other person with whom any trust money or
securities may be deposited, nor for any other loss, unless the same happens
through his own wilful default. |
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(2) |
A trustee may reimburse himself or pay or discharge out of the trust
premises all expenses incurred in or about the execution of the trusts or
powers. |
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Power to apply income for maintenance and to accumulate
surplus income during a minority |
32. |
(1) |
Where any property is held by trustees in trust for any person for any
interest whatsoever, whether vested or contingent, then, subject to any
prior interests or charges affecting that property - |
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(a) |
during the infancy of any such person, if his interest so long continues,
the trustees may, at their sole discretion, pay to his parent or guardian,
if any, or otherwise apply for or towards his maintenance, education, or
benefit, the whole or such part, if any, of the income of that property as
may, in all the circumstances, be reasonable, whether or not there is- |
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(i) |
any other fund applicable to the same purpose, or |
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(ii) |
any person bound by law to provide for his maintenance or education; and |
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(b) |
if such person on attaining the age of twenty-one years has not a vested
interest in such income, the trustees shall thenceforth pay the income of
that property and of any accretion thereto under subsection (2) to him,
until he either attains a vested interest therein or dies, or until failure
of his interest: |
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Provided that in deciding whether the whole or any part of
the income of the property is during a minority to be paid or applied for the
purposes aforesaid, the trustees shall have regard to the age of the infant and
his requirements and generally to the circumstances of the case, and in
particular to what other income, if any, is applicable for the same purposes;
and where trustees have notice that the income of more than one fund is
applicable for this purpose, then so far as practicable, unless the entire
income of the funds is paid or applied as aforesaid or the Court otherwise
directs, a proportionate part only of the income of each fund shall be so paid
or applied. |
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(2) |
During the infancy of any such person, if his interest so long continues,
the trustees shall accumulate all the residue of that income in the way of
compound interest by investing the same and the resulting income thereof
from time to time in authorised investments, and shall hold those
accumulations as follows- |
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(a) |
if any such person- |
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(i) |
attains the age of twenty-one years, or marries under that age, and his
interest in such income during his infancy or until his marriage is a vested
interest, or |
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(ii) |
on attaining the age of twenty-one years or on marriage under that age
becomes entitled to the property from which such income arose in fee simple,
absolute or determinable, or absolutely, or for an entailed interest, |
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the trustees shall hold the accumulations in trust for such person
absolutely, and so that the receipt of such person after marriage, and
though still an infant, shall be a good discharge; |
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(b) |
and in any other case the trustees shall, notwithstanding that
such person had a vested interest in such income, hold the accumulations as an
accretion to the capital of the property from which such accumulations arose,
and as one fund with such capital for all purposes, and so that, if such
property is settled land, such accumulations shall be held upon the same trusts
as if the same were capital money arising therefrom; |
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but the trustees may, at any time during the infancy of such person, if his
interest so long continues, apply those accumulations, or any part thereof,
as if they were income arising in the then current year. |
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(3) |
This section applies in the case of a contingent interest only if the
limitation or trust carries the intermediate income of the property, but it
applies to a future or contingent legacy by the parent of, or a person
standing in loco parentis to, the legatee, if and for such period as,
under the general law, the legacy carries interest for the maintenance of the
legatee, and in any such case as last aforesaid the rate of interest shall (if
the income available is sufficient, and subject to any rules of court to the
contrary) be five per cent per annum. |
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(4) |
This section applies to a vested annuity in like manner as if the annuity
were the income of property held by trustees in trust to pay the income
thereof to the annuitant for the same period for which the annuity is
payable, save that in any case accumulations made during the infancy of the
annuitant shall be held in trust for the annuitant or his personal
representatives absolutely. |
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Power of advancement |
33. |
(1) |
Trustees may
at any time or times pay or apply any capital money subject to a trust, for
the advancement or benefit in such manner as they may, in their absolute
discretion, think fit, of any person entitled to the capital of the trust
property or of any share thereof, whether absolutely or contingently on his
attaining any specified age or on the occurrence of any other event, or
subject to a gift over on his death under any specified age or on the
occurrence of any other event, and whether in possession or in remainder or
reversion, and such payment or application may be made notwithstanding that
the interest of such person is liable to be defeated by the exercise of a
power of appointment or revocation, or to be diminished by the increase of
the class to which he belongs:
Provided that- |
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(a) |
the money so paid or applied for the advancement or benefit of any
person shall not exceed altogether in amount one-half of the presumptive or
vested share or interest of that person in the trust property; and |
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(b) |
if that person is or becomes absolutely and indefensibly entitled to a share
in the trust property the money so paid or applied shall be brought into
account as part of such share; and |
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(c) |
no such payment or application shall be made so as to prejudice any person
entitled to any prior life or other interest whether vested or contingent,
in the money paid or applied unless such person is in existence and of full
age and consents in writing to such payment or application. |
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(2) |
This section applies only where the trust property consists of money or
securities or of property held upon trust for sale, calling in and
conversion, and such money or securities, or the proceeds of such sale,
calling in and conversion are not by law or in equity considered as land. |
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Protective trusts |
34. |
(1) |
Where any income, including an annuity or other periodical income payment,
is directed to be held on protective trusts for the benefit of any person
(in this section called "the principal beneficiary") for the period of his
life or for any less period, then, during that period (in this section
called the "trust period") the said income shall, without prejudice to any
prior interest, be held on the following trusts, namely- |
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(a) |
upon trust for the principal beneficiary during the trust period or until
he, whether before or after the termination of any prior interest, does or
attempts to do or suffers any act or thing, or until any event happens,
other than an advance under any statutory or express power, whereby, if the
said income were payable during the trust period to the principal
beneficiary absolutely during that period, he would be deprived of the right
to receive the same or any part thereof, in any of which cases, as well as
on the termination of the trust period, whichever first happens, this trust
of the said income shall fail or determine; |
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(b) |
if the trust aforesaid fails or determines during the subsistence of the
trust period, then, during the residue of that period, the said income shall
be held upon trust for the application thereof for the maintenance or
support, or otherwise for the benefit, of all or any one or more exclusively
of the other or others of the following persons (that is to say)- |
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(i) |
the principal beneficiary and his or her wife or husband, if any, and his or
her children or more remote issue, if any, or |
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(ii) |
if there is no wife or husband or issue of the principal beneficiary in
existence, the principal beneficiary and the persons who would, if he were
actually dead, be entitled to the trust property or the income thereof or to
the annuity fund, if any, or arrears of the annuity, as the case may be, as
the trustees in their absolute discretion, without being liable to account
for the exercise of such discretion, think fit. |
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(2) |
This section does not apply to trusts coming into operation before the
commencement of this Act, and has effect subject to any variation of
the implied trusts aforesaid contained in the instrument creating the trust. |
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(3) |
Nothing in this section operates to validate any trusts which would, if
contained in the instrument creating the trust, be liable to be set aside. |
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PART IV - Appointment and Discharge of Trustees
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Limitation of the number of trustees |
35. |
(1) |
Where, at the commencement of this Act, there are more than four
trustees of a settlement of land, or more than four trustees holding land on
trust for sale, no new trustees shall (except where as a result of the
appointment the number is reduced to four or less) be capable of being
appointed until the number is reduced to less than four, and thereafter the
number shall not be increased beyond four. |
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(2) |
In the case of settlements and dispositions on trust for sale of land made
or coming into operation after the commencement of this Act- |
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(a) |
the number of trustees thereof shall not in any, case exceed four, and where
more than four persons are named as such trustees, the four first named (who
are able and willing to act) shall alone be the trustees, and the other
persons named shall not be trustees unless appointed on the occurrence of a
vacancy; |
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(b) |
the number of the trustees shall not be increased beyond four. |
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(3) |
This section only applies to settlements and dispositions of land, and the
restrictions imposed on the number of trustees do not apply - |
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(a) |
in the case of land vested in trustees for charitable, ecclesiastical, or
public purposes; or |
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(b) |
where the net proceeds of the sale of the land are held for like purposes. |
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Power of appointing new or additional trustees |
36. |
(1) |
Where a trustee, either original or substituted, and whether appointed by
the Court or otherwise is dead, or remains out of the Territory for more
than twelve months, or desires to be discharged from all or any of the trusts or powers reposed
in or conferred on him, or refuses or is unfit to act therein, or is incapable
of acting therein, or is an infant, then, subject to the restrictions imposed by
this Act on the number of trustees- |
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(a) |
the person or persons nominated for the purpose of appointing new trustees
by the instrument, if any, creating the trust, or |
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(b) |
if there is no such person, or no such person able and willing to act, then
the surviving or continuing trustee or trustees for the time being, or the
personal representatives of the last surviving or continuing trustee, |
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may, by deed, appoint one or more other persons (whether or not being the
persons exercising the power) to be a trustee or trustees in the place of
the trustee so deceased, remaining out of the Territory, desiring to
be discharged, refusing, or being unfit or being incapable, or being an
infant, as aforesaid. |
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(2) |
Where a trustee has been removed under a power contained in the instrument
creating the trust, a new trustee, or new trustees, may be appointed in the
place of the trustee who is removed, as if he were dead, or, in the case of
a corporation, as if the corporation desired to be discharged from the
trust, and the provisions of this section shall apply accordingly, but
subject to the restrictions imposed by this Act on the number of
trustees. |
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(3) |
Where a corporation being a trustee is or has been dissolved, either before
or after the commencement of this Act, then, for the purposes of this
section, the corporation shall be deemed to be and to have been from the
date of the dissolution incapable of acting in the trusts or powers reposed
in or conferred on the corporation. |
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(4) |
The power of appointment given by subsection (1) or any similar previous
enactment to the personal representatives of a last surviving or continuing
trustee shall be and shall be deemed always to have been exercisable by the
executors for the time being (whether original or by representation) of such
surviving or continuing trustee, who have proved the will of their testator
or by the administrators for the time being of such trustee without the
concurrence of any executor who has renounced or has not proved. |
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(5) |
Where a sole trustee is or has been originally appointed to act in a trust,
or where, in the case of any trust, there are not more than three trustees
either original or substituted and whether appointed by the Court or
otherwise, then and in such case- |
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(a) |
the person or persons nominated for the purpose of appointing new trustees
by the instrument, if any, creating the trust, or |
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(b) |
if there is no such person, or no such person able and willing to act, then
the trustee or trustees for the time being, |
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may, by deed, appoint another person or other persons to be an
additional trustee or additional trustees, but it shall not be
obligatory to appoint any additional trustee, unless the instrument, if
any, creating the trust provides to the contrary, nor shall the number of
trustees be increased beyond four by virtue of any such appointment. |
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(6) |
Every new trustee appointed under this section as well before as after all
the trust property becomes by law, or by assurance, or otherwise, vested in
him, shall have the same powers, authorities, and discretions, and may in
all respects act as if he had been originally appointed a trustee by the
instrument, if any, creating the trust. |
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(7) |
The provisions of this section relating to a trustee who is dead include the
case of a person nominated trustee in a will but dying before the testator,
and those relative to a continuing trustee include a refusing or retiring
trustee, if willing to act in the execution of the provisions of this
section. |
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(8) |
Where a person of unsound mind, being a trustee, is also entitled in
possession to some beneficial interest in the trust property, no appointment
of a new trustee in his place shall be made by the continuing trustees or
trustee, under this section, unless leave has been given by the Court to
make the appointment. |
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Power to appoint trustees of property belonging to infants or
to persons out of the Territory |
37. |
(1) |
Where an infant or
a person out of the Territory is absolutely entitled under the will or on the
intestacy of a person dying before or after the commencement of this Act
(in this subsection called "the deceased") to a devise or legacy, or to the
residue of the estate of the deceased, or any share therein, and such devise,
legacy, residue or share is not under the will, if any, of the deceased, devised
or bequeathed to trustees for the infant or the person out of the Territory, the
personal representatives of the deceased may by writing appoint two or more
persons not exceeding four (whether or not including the personal
representatives or one or more of the personal representatives), to be the
trustee or trustees of such devise, legacy, residue or share for the infant or
the person out of the Territory, and may execute or do any assurance or thing
requisite for vesting such devise, legacy, residue or share in the trustee or
trustees so appointed.
On such appointment the personal representatives, as such,
shall be discharged from all further liability in respect of such devise,
legacy, residue or share, and the same may be retained in its existing condition
or state of investment, or may be converted into money, and such money may be
invested in any investment authorised by this Act.
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(2) |
Where a personal representative has before the commencement of this
Act retained or sold any such devise, legacy, residue or share, and
invested the same or the proceeds thereof in any investments in which he was
authorised to invest money subject to the trust, then, subject to any order
of the Court made before such commencement, he shall not be deemed to have
incurred any liability on that account, or by reason of not having paid or
transferred the money or property into Court. |
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Supplemental provisions as to appointment of trustees |
38. |
On the appointment of a trustee for the whole or any part of trust property- |
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(a) |
the number of trustees may, subject to the restrictions imposed by this
Act on the number of trustees, be increased; and |
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(b) |
a separate set of trustees, not exceeding four, may be appointed for any
part of the trust property held on trusts distinct from those relating to
any other part or parts of the trust property, notwithstanding that no new
trustees or trustee are or is to be appointed for other parts of the trust
property, and any existing trustee may be appointed or remain one of such
separate set of trustees or, if only one trustee was originally appointed,
then save as hereinafter provided, one separate trustee may be so appointed;
and |
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(c) |
it shall not be obligatory to appoint more than one new trustee where only
one trustee was originally appointed, or to fill up the original number of
trustees where more than two trustees were originally appointed; and |
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(d) |
any assurance or thing requisite for vesting the trust property, or any part
thereof, in a sole trustee, or jointly in the persons who are the trustees,
shall be executed or done. |
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Evidence as to a vacancy in a trust |
39. |
(1) |
A statement, contained in any instrument coming into operation after the
commencement of this Act by which a new trustee is appointed for any
purpose connected with land, to the effect that a trustee has remained out
of the Territory for more than twelve months or refuses or is unfit to act,
or is incapable of acting, or that he is not entitled to a beneficial
interest in the trust property in possession, shall, in favour of a
purchaser of a legal estate, be conclusive evidence of the matter stated. |
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(2) |
In favour of such purchaser any appointment of a new trustee depending on
that statement, and any vesting declaration, express or implied, consequent
on the appointment, shall be valid. |
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Retirement of trustee without a new appointment |
40. |
(1) |
Where a trustee is desirous of being discharged from the trust then, if such
trustee as aforesaid by deed declares that he is desirous of being
discharged from the trust, and if his co-trustees and such other person, if
any, as is empowered to appoint trustees, by deed consent to the discharge
of the trustee, and to the vesting in the co-trustees alone of the trust
property, the trustee desirous of being discharged shall be deemed to have
retired from the trust, and shall, by the deed, be discharged therefrom under this
Act, without any new trustee being appointed in his
place. |
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(2) |
Any assurance or thing requisite for vesting the trust property in the
continuing trustees alone shall be executed or done. |
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Vesting of trust property in new or continuing trustees |
41. |
(1) |
Where by a deed a new trustee is appointed to perform any trust, then- |
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(a) |
if the deed contains a declaration by the appointer to the effect that any
estate or interest in any land subject to the trust, or in any chattel so
subject, or the right to recover or receive any debt or other thing in
action so subject, shall vest in the persons who by virtue of the deed
become or are the trustees for performing the trust, the deed shall operate,
without any conveyance or assignment, to vest in those persons as joint
tenants and for the purposes of the trust the estate, interest or right to
which the declaration relates; and |
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(b) |
if the deed is made after the commencement of this Act and does not
contain such a declaration, the deed shall, subject to any express
provisions to the contrary therein contained, operate as if it had contained
such a declaration by the appointer extending to all the estates, interests
and rights with respect to which a declaration could have been made. |
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(2) |
Where by a deed a retiring trustee is discharged under the statutory power
without a new trustee being appointed, then- |
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(a) |
if the deed contains such a declaration as aforesaid by the retiring and
continuing trustees, and by the other person, if any, empowered to appoint
trustees, the deed shall, without any conveyance or assignment, operate to
vest in the continuing trustees alone, as joint tenants, and for the
purposes of the trust, the estate, interest or right to which the
declaration relates; and |
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(b) |
if the deed is made after the commencement of this Act and does not
contain such a declaration, the deed shall, subject to any express provision
to the contrary therein contained, operate as if it had contained such a
declaration by such persons as aforesaid extending to all the estates,
interest and rights with respect to which a declaration could have been
made. |
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(3) |
An express vesting declaration whether made before or after the commencement
of this Act, shall, notwithstanding that the estate, interest and
right to be vested is not expressly referred to, and provided that the other
statutory requirements were or are complied with, operate and be deemed
always to have operated (but without prejudice to any express provisions to
the contrary contained in the deed of appointment or discharge) to vest in
the persons respectively referred to in subsections (1) and (2), as the case
may require, such estates, interest and rights as are capable of being and
ought to be vested in those persons. |
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(4) |
This section does not extend- |
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(a) |
to land conveyed by way of mortgage for securing money subject to the trust,
except land conveyed on trust for securing debentures or debenture stock; |
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(b) |
to land held under a lease which contains any covenant, condition or
agreement against assignment or disposing of the land without licence or
consent, unless, prior to the execution of the deed containing expressly or
impliedly the vesting declaration, the requisite licence or consent has been
obtained, or unless, by virtue of any law, the vesting declaration, express
or implied, would not operate as a breach of covenant or give rise to a
forfeiture; |
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(c) |
to any share, stock, annuity or property which is only transferable in books
kept by a company or other body, or in manner directed by or under an Act. |
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In this subsection "lease" includes an underlease and an
agreement for a lease or underlease. |
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PART V - Powers of The Court
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Power of Court to appoint new trustees |
42. |
(1) |
The Court may,
whenever it is expedient to appoint a new trustee or new trustees, and it is
found inexpedient, difficult or impracticable so to do without the assistance of
the Court, make an order appointing a new trustee or new trustees either in
substitution for or in addition to any existing trustee or trustees, or although
there is no existing trustee.
In particular and without prejudice to the generality of
the foregoing provision, the Court may make an order appointing a new trustee in
substitution for a trustee who is convicted of a felony, or is a person of
unsound mind, or is a bankrupt, or is a corporation which is in liquidation or
has been dissolved.
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(2) |
An order under this section, and any consequential vesting order or
conveyance, shall not operate further or otherwise as a discharge to any
former or continuing trustee than an appointment of new trustees under any
power for that purpose contained in any instrument would have operated. |
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(3) |
Nothing in this section gives power to appoint an executor or administrator. |
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Power to authorise remuneration |
43. |
Where the Court appoints a corporation to be a trustee either solely or
jointly with another person, the Court may authorise the corporation to
charge such remuneration for its services as trustee as the Court may think
fit. |
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Powers of new trustees appointed by the Court |
44. |
Every trustee appointed by the Court shall, as well as before as after the
trust property becomes by law, or by assurance, or otherwise, vested in him,
have the same powers, authorities, and discretions, and may in all respects
act as if he had been originally appointed a trustee by the instrument, if
any, creating the trust. |
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Vesting orders of land |
45. |
In any of the following cases namely- |
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(a) |
where the Court appoints or has appointed a trustee, or where a trustee has
been appointed out of court under any statutory or express power; |
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(b) |
where a trustee entitled to or possessed of any land or interest therein,
whether by way of mortgage or otherwise, or entitled to a contingent right
therein, either solely or jointly with any other person- |
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(i) |
is under disability, or |
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(ii) |
is out of the jurisdiction of the Court, or |
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(iii) |
cannot be found, or being a corporation, has been dissolved; |
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(c) |
where it is uncertain who was the survivor of two or more trustees jointly
entitled to or possessed of any interest in land; |
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(d) |
where it is uncertain whether the last trustee known to have been entitled
to or possessed of any interest in land is living or dead; |
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(e) |
where there is no personal representative of a deceased trustee who was
entitled to or possessed of any interest in land, or where it is uncertain
who is the personal representative of a deceased trustee who was entitled to
or possessed
of any interest in land; |
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(f) |
where a trustee jointly or solely entitled to or possessed of any interest
in land, or entitled to a contingent right therein, has been required, by or
on behalf of a person entitled to require a conveyance of the land or
interest or a release of the right, and has wilfully refused or neglected to
convey the land or interest or release the right for twenty-eight days after
the date of the requirement; |
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(g) |
where land or any interest therein is vested in a trustee whether by way of
mortgage or otherwise, and it appears to the Court to be expedient, |
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the Court may make an order (in
this Act called a vesting order) vesting the land or interest therein in
any such person in any such manner and for any such estate or interest as the
Court may direct, or releasing or disposing of the contingent right to such
person as the Court may direct:
Provided that-
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(i) |
where the order is consequential on the appointment of a trustee the land or
interest therein shall be vested for such estate as the Court may direct in
the persons who on the appointment are the trustees; and |
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(ii) |
where the order relates to a trustee entitled or formerly entitled jointly
with another person, and such trustee is under disability or out of the
jurisdiction of the Court or cannot be found, or being a corporation has
been dissolved, the land interest or right shall be vested in such other
person who remains entitled, either alone or with any other person the Court
may appoint. |
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Orders as to contingent rights or unborn persons |
46. |
Where any interest in land is subject to a contingent right in an unborn
person or class of unborn persons who, on coming into existence would, in
respect thereof, become entitled to or possessed of that interest on any
trust, the Court may make an order releasing the land or interest therein
from the contingent right, or may make an order vesting in any person the
estate or interest to or of which the unborn person or class of unborn
persons would, on coming into existence, be entitled or possessed in the
land. |
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Vesting order in place of conveyance by infant mortgagee |
47. |
Where any person entitled to or possessed of any interest in land, or
entitled to a contingent right in land, by way of security for money, is an
infant, the Court may make an order vesting or releasing or disposing of the
interest in the land or the right in like manner as in the case of a trustee
under disability. |
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Vesting order consequential an order for sale or mortgage of
land |
48. |
Where the Court gives a judgement or makes an order directing the sale or
mortgage of any land, every person who is entitled to or possessed of any
interest in the land, or entitled to a contingent right therein, and is a
party to the action or proceeding in which the judgement or order is given
or made or is otherwise bound by the judgement or order, shall be deemed to
be so entitled or possessed, as the case may be, as a trustee for the
purposes of this Act, and the Court may, if it thinks expedient, make
an order vesting the land or any part thereof for such estate or interest as
the Court thinks fit in the purchaser or mortgagee or in any other person. |
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Vesting order consequential on judgement for specific
performance, etc. |
49. |
Where a judgement is given for the specific performance of a contract
concerning any interest in land or for sale or exchange of any interest in
land, or generally where any judgement is given for the conveyance of any
interest in land either in cases arising out of the doctrine of election or
otherwise, the Court may declare- |
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(a) |
that any of the parties to the action are trustees of any interest in the
land or any part thereof within the meaning of this Act, or |
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(b) |
that the interests of unborn persons who might claim under any party to the
action, or under the will or voluntary settlement of any deceased person who
was during his lifetime a party to the contract or transaction concerning
which the judgement is given, are the interests of persons who, on coming
into existence, would be trustees within the meaning of this Act, |
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and thereupon the Court may make a vesting
order relating to the rights of those persons, born and unborn, as if they had
been trustees. |
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Effect of vesting order |
50. |
A vesting order under any of the foregoing provisions shall in the case of a
vesting order consequential on the appointment of a trustee, have the same
effect- |
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(a) |
as if the persons who before the appointment were the trustees, if any, had
duly executed all proper conveyances of the land for such estate or interest
as the Court directs; or |
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(b) |
if there is no such person, or no such person of full capacity, as if such
person had existed and been of full capacity and had duly executed all
proper conveyances of the land for such estate or interest as the Court
directs; and shall in every other case have the same effect as if the
trustee or other person or description or class of persons to whose
rights or supposed rights the said provisions respectively relate had
been an ascertained and existing person of full capacity, and had executed a
conveyance or release to the effect intended by the order. |
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Power to appoint person to convey |
51. |
In all cases where a vesting order can be made under any of the foregoing
provisions, the Court may, if it is more convenient, appoint a person to
convey the land or any interest therein or release the contingent right, and
a conveyance or release by that person in conformity with the order shall
have the same effect as an order under the appropriate provision. |
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Vesting orders as to stocks and things in action |
52. |
(1) |
In any of the following cases, namely- |
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(a) |
where the Court appoints or has appointed a trustee, or where a trustee has
been appointed out of court under any statutory or express power; |
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(b) |
where a trustee entitled, whether by way of mortgage or otherwise, alone or
jointly with another person, to stock or to a thing in action- |
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(i) |
is under disability, or |
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(ii) |
is out of the jurisdiction of the Court, or |
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(iii) |
cannot be found, or being a corporation, has been dissolved, or |
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(iv) |
neglects or refuses to transfer stock or receive the dividends or income
thereof, or to sue for or recover a thing in action, according to the
direction of the person absolutely entitled thereto for twenty-eight days
next after a request in writing has been served on him; or |
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(v) |
neglects or refuses to transfer stock or receive the dividends or income
thereof, or to sue for or recover a thing in action, for twenty-eight days
next after an order of the Court for that purpose has been served on him; |
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(c) |
where it is uncertain whether a trustee entitled alone or jointly with
another person to stock or to a thing in action is alive or dead; |
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(d) |
where stock is standing in the name of a deceased person whose personal
representative is under disability; |
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(e) |
where stock or a thing in action is vested in a trustee whether by way of
mortgage or otherwise and it appears to the Court to be expedient, |
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the Court may make
an order vesting the right to transfer or call for a transfer of stock, or to
receive the dividends or income thereof, or to sue for or recover the thing in
action, in any such person as the Court may appoint:
Provided that-
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(i) |
where the order is consequential on the appointment of a trustee, the right
shall be vested in the persons who, on the appointment, are the trustees;
and |
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(ii) |
where the person whose right is dealt with by the order was entitled jointly
with another person, the right shall be vested in the last-mentioned person
either alone or jointly with any other person whom the Court may appoint. |
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(2) |
In all cases where a vesting order can be made under this section, the Court
may, if it is more convenient, appoint some proper person to make or join in
making the transfer. |
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(3) |
The person in whom the right to transfer or call for the transfer of any
stock is vested by an order of the Court under this Act, may transfer
the stock to himself or any other person, according to the order, and all
companies shall obey every order under this section according to its tenor. |
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(4) |
After notice in writing of an order under this section it shall not be
lawful for any company to transfer any stock to which the order relates or
to pay any dividends thereon except in accordance with the order. |
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(5) |
The Court may make declarations and give directions concerning the manner in
which the right to transfer any stock or thing in action vested under the
provisions of this Act is to be exercised. |
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(6) |
The provisions of this Act as to vesting orders shall apply to shares
in ships registered under the Acts of Parliament or other law relating to
merchant shipping as if they were stock. |
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Vesting orders of charity property |
53. |
The powers conferred by this Act as to vesting orders may be exercised
for vesting any interest in land, stock, or thing in action in any trustee
of a charity or society over which the Court would have jurisdiction upon
action duly instituted, whether the appointment of the trustee was made by
instrument under a power or by the Court under its general or statutory
jurisdiction. |
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Vesting orders in relation to infant's beneficial interests |
54. |
Where an infant is beneficially entitled to any property the Court may, with
a view to the application of the capital or income thereof for the
maintenance, education, or benefit of the infant, make an order- |
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(a) |
appointing a person to convey such property; or |
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(b) |
in the case of stock, or a thing in action, vesting in any person the right
to transfer or call for a transfer of such stock, or to receive the
dividends or income thereof, or to sue for and recover such thing in action,
upon such terms as the Court may think fit. |
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Orders made upon certain allegations to be conclusive
evidence |
55. |
Where a vesting order is made as to any land under this Act founded on
an allegation of any of the following matters namely- |
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(a) |
the personal incapacity of a trustee or mortgagee; or |
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(b) |
that a trustee or mortgagee or the personal representative of or other
person deriving title under a trustee or mortgagee is out of the
jurisdiction of the Court or cannot be found, or being a corporation has
been dissolved; or |
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(c) |
that it is uncertain which of two or more trustees, or which of two or more
persons interested in a mortgage, was the survivor; or |
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(d) |
that it is uncertain whether the last trustee or the personal representative
of or other person deriving title under a trustee or mortgagee, or the last
surviving person interested in a mortgage is living or dead; or |
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(e) |
that any trustee or mortgagee has died intestate without leaving a person
beneficially interested under the intestacy or has died and it is not known
who is his personal representative or the person interested, |
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the fact that the order has been so made shall be conclusive evidence of the
matter so alleged in any court upon any question as to the validity of the
order; but this section does not prevent the Court from directing a
reconveyance or surrender or the payment of costs occasioned by any such
order if improperly obtained. |
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Orders of Court to be registered |
56. |
In all cases where
the Court shall, under the provisions of this Act, make a vesting order,
or any order having the effect of a conveyance or assignment of any land or any
interest therein, or having the effect of a release or disposition of the
contingent right of any unborn person, or class of unborn persons, in any land,
an office copy of such order shall be registered in the office of the Registrar
of Deeds, and such order shall take effect upon and from the time of the
registration of such office copy:
Provided that where the land or any interest therein is
subject to the provisions of the Title by Registration Act, the Registrar of
Deeds shall, on production of an office copy of the order and on payment of the
prescribed fees, duly register such order and cause a note thereof to be
endorsed on the grant or certificate of title in respect of such land, and
thereupon the person in whom the land is vested by the order shall be the
registered proprietor thereof without the production of any instrument of
transfer.
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Registration of vesting order made by Court in England |
57. |
(1) |
Where the court in England has made a vesting order under the Trustee Act,
1925, in respect of land or personal estate in the Territory, and the
vesting order so made is produced to the Registrar of Deeds for
registration, such vesting order shall, on payment of a fee of five dollars
be registered in the office of the Registrar of Deeds. |
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(2) |
For the purposes of this section, a duplicate of a vesting order sealed with
the seal of the court making the same, or a copy thereof certified as
correct by the officer having the custody of the original order, shall have
the same effect as the original. |
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(3) |
In this section "court" has the same meaning as the court referred to in
section 67 of the Trustee Act, 1925. |
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Jurisdiction of Court to vary trusts |
58. |
(1) |
Where property, whether real or personal, is held on trusts arising whether
before or after the passing of this Act, under any will, settlement or
other disposition, the Court may if it thinks fit by order approve on behalf
of- |
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(a) |
any person having, directly or indirectly, an interest, whether vested or
contingent, under the trusts who by reason of infancy or other incapacity is
incapable of assenting; or |
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(b) |
any person (whether ascertained or not) who may have become entitled,
directly or indirectly, to an interest under the trusts as being at a future
date or on the happening of a future event a person of any specified
description or a member of any specified class of persons, so however that
this paragraph shall not include any ascertained person who would be of that description
or a member of that class, as the case may be, if the said date had fallen
or the said event had happened at the date of the
application to the Court; or |
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(c) |
any unborn person; or |
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(d) |
any person in respect of any discretionary interest of his under protective
trusts where the interest of the principal beneficiary has not failed or
determined; |
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any arrangement
(by whomsoever proposed, and whether or not there is any other person
beneficially interested who is capable of assenting thereto) varying,
adding to, revoking or replacing all or any of the trusts, enlarging,
restricting or removing all or any of the powers of the trustees of managing or
administering any of the property subject to the trusts or all or any other
powers of the trustees, or varying, adding to, removing or replacing any or all
of the other provisions of the trusts:
Provided that except by virtue of
paragraph (d) the Court shall not approve an arrangement on behalf of any person
if carrying it out would be detrimental to that person.
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(2) |
In the foregoing subsection "protective trusts" means an interest specified
in paragraphs (a) and (b) of subsection (1) of section 34 or any like
trusts, "the principal beneficiary" has the same meaning as in the said
subsection (1); and "discretionary interest" means an interest arising under
the trust specified in paragraph (a) of the said subsection. |
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(3) |
Nothing in the foregoing provisions of this section shall apply to trusts
affecting property settled by any law of the Territory. |
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(4) |
Nothing in this section shall be taken to limit the powers conferred by
section 59 or by section 6 of the West Indies Associated States Supreme
Court (Virgin Islands) Act. |
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(5) |
The references to an interest in subsections (1)(a) and (1)(b) shall be
construed to include references to a discretionary interest. |
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(6) |
This section applies to any trust, whether created before, on or after the
date on which this subsection comes into force. |
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Power to appoint persons to consent variations on behalf of
those incapable |
58A. |
(1) |
Where a trust instrument provides
for the appointment of any person (including the holder of any office under
the trust) to approve any arrangement described in section 58(1) on behalf
of any other persons referred to in paragraphs (a) to (d) thereof (whether
specified by name or by description and whether or not the identity of such
persons is ascertained or ascertainable), and where such approval is
subsequently given pursuant thereto, such approval shall have the same
effect as if the Court had approved such arrangement on behalf of such
persons pursuant to the powers vested in it by section 58(1):
Provided that no such approval
shall be given on behalf of any persons referred to in paragraphs (a) to (c)
of section 58(1) unless, in the opinion formed in good faith of the person
giving the approval, carrying out and giving effect to such arrangement
would not be detrimental to the person or persons on whose behalf it is
given. |
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(2) |
Nothing in subsection (1), nor in any such provision in a trust instrument
as is referred to in that subsection, shall be taken to limit the powers
conferred by sections 58 or 59 or by section 6 of the West Indies Associated
States Supreme Court (Virgin Islands) Act. |
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(3) |
References to the holder of any office under the trust in subsection (1)
include references to a trustee or any protector or protective committee of
the trust. |
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(4) |
This section applies only to trusts created on or after the date on which
this section comes into force. |
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Power of Court to authorise dealings with trust property |
59. |
(1) |
Where in the management or administration of any property vested in
trustees, any sale, lease, mortgage, surrender, release, or other
disposition, or any purchase, investment, acquisition, expenditure, or other
transaction, is in the opinion of the Court expedient, but the same cannot
be effected by reason of the absence of any power for that purpose vested in
the trustees by the trust instrument, if any, or by law, the Court may by
order confer upon the trustees, either generally or in any particular
instance, the necessary power for that purpose, on such terms, and subject
to such provisions and conditions, if any, as the Court may think fit and
may direct in what manner any money authorised to be expended, and the costs
of any transaction, are to be paid or borne as between capital and income. |
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(2) |
The Court may, from time to time, rescind or vary any order made under this
section, or may make any new or further order. |
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(3) |
An application to the Court under this section may be made by the trustees,
or by any of them, or by any person beneficially interested under the trust. |
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Persons entitled to apply for orders |
60. |
(1) |
An order under this Act for the appointment of a new trustee or
concerning any interest in land, stock, or thing in action subject to a
trust, may be made on the application of any person beneficially interested
in the land, stock, or thing in action, whether under disability or not, or
on the application of any person duly appointed trustee thereof. |
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(2) |
An order under this Act concerning any interest in land, stock, or
thing in action subject to a mortgage may be made on the application of any
person beneficially interested in the equity of redemption, whether under
disability or not, or of any person interested in the money secured by the
mortgage. |
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Power to give judgement in absence of a trustee |
61. |
Where in any action the Court is satisfied that diligent search has been
made for any person who, in the character of trustee, is made a defendant in
an action, to serve him with a process of the Court, and that he cannot be
found, the Court may hear and determine the action and give judgment therein
against that person in his character of a trustee as if he had been duly
served, or had entered an appearance in the action, and had also appeared by
his counsel and solicitor at the hearing, but without prejudice to any
interest he may have in the matters in question in the action in any other
character. |
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Power to charge costs on trust estate |
62. |
The Court may order the costs and expenses of and incident to any
application for an order appointing a new trustee, or for a vesting order,
or of an incident to any such order, or any conveyance or transfer in
pursuance thereof, to be raised and paid out of the property in respect
whereof the same is made, or out of the income thereof, or to be borne and
paid in such manner and by such persons as to the Court may seem just. |
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Power to relieve trustee from personal liability |
63. |
If it appears to the Court that a trustee, whether appointed by the Court or
otherwise, is or may be personally liable for any breach of trust, whether
the transaction alleged to be a breach of trust occurred before or after the
commencement of this Act, but has acted honestly and reasonably, and
ought fairly to be excused for the breach of trust and for omitting to
obtain the directions of the Court in the matter in which he committed such
breach, then the Court may relieve him either wholly or partly from personal
liability for the same. |
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Power to make beneficiary indemnify for breach of trust |
64. |
(1) |
Where a trustee commits a breach of trust at the instigation or request or
with the consent in writing of a beneficiary, the Court may, if it thinks
fit, and notwithstanding that the beneficiary may be a married woman
restrained from anticipation, make such order as to the Court seems just,
for impounding all or any part of the interest of the beneficiary in the
trust estate by way of indemnity to the trustee or persons claiming through
him. |
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(2) |
This section applies to breaches of trust committed as well before as after
the commencement of this Act. |
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Payment into Court by trustees |
65. |
(1) |
Trustees, or the majority of trustees, having in their hands or under their
control money or securities belonging to a trust, may pay the same into
Court; and the same shall, subject to rules of court, be dealt with
according to the orders of the Court. |
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(2) |
The receipt or certificate of the proper officer shall be a sufficient
discharge to trustees for the money or securities so paid into Court. |
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(3) |
Where money or securities are vested in any persons as trustees, and the
majority are desirous of paying the same into Court, but the concurrence of
the other or others cannot be obtained, the Court may order the payment into
Court to be made by the majority without the concurrence of the other or
others. |
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(4) |
Where any such money or securities are deposited with any banker, broker, or
other depositary, the Court may order payment or delivery of the money or
securities to the majority of the trustees for the purpose of payment into
Court. |
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(5) |
Every transfer payment and delivery made in pursuance of any such order
shall be valid and take effect as if the same had been made on the authority
or by the act of all the persons entitled to the money and securities so
transferred, paid or delivered. |
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PART VI - General Provisions
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Application of Act |
66. |
(1) |
This Act, except where otherwise expressly provided, applies to trusts
including, so far as this Act applies thereto, executorships and administratorships constituted or created
either before or after the commencement of this Act. |
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(2) |
The powers conferred by this Act on trustees are in addition to the
powers conferred by the instrument, if any, creating the trust, but those
powers, unless otherwise stated, apply if and so far only as a contrary
intention is not expressed in the instrument, if any, creating the trust,
and have effect subject to the terms of that instrument. |
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(3) |
This Act does not affect the legality or validity of any thing done
before the commencement of this Act, except as otherwise hereinbefore
expressly provided. |
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Indemnity |
67. |
This Act, and every order purporting to be made under this Act,
shall be a complete indemnity to all persons for any acts done pursuant
thereto, and it shall not be necessary for any person to inquire concerning
the propriety of the order, or whether the Court by which the order was made
had jurisdiction to make it. |
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PART VII - Perpetuities and Accumulations
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Power to specify perpetuity period |
68. |
(1) |
Subject to subsection (2) and subsection (3) of section 76, where the
instrument by which any disposition is made so provides, the perpetuity
period applicable to the disposition under the rule against perpetuities,
instead of being of any other duration, shall be of a duration equal to such
number of years not exceeding 100 as is specified in that behalf in the
instrument. |
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(2) |
Subsection (1) shall not have effect where the disposition is made in
exercise of a special power of appointment, but where a period is specified
under that subsection in the instrument creating such a power the period
shall apply in relation to any disposition under the power as it applies in
relation to the power itself. |
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Presumptions and evidence as to future parenthood |
69. |
(1) |
Where in any proceedings there arises on the rule against perpetuities a
question which turns on the ability of a person to have a child at some
future time, then, subject to subsection (2), it shall be presumed that a
male can have a child at the age of 14 years or over, but not under that
age, and that a female can have a child at the age of 12 years or over, but
not under that age or over the age of 55 years. |
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(2) |
In the case of a living person evidence may be given to show that he or she
will or will not be able to have a child at the time in question. |
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(3) |
Where any such question is decided by treating a person as unable to have a
child at a particular time, and he or she does so, the Court may make such
order as it thinks fit for placing the persons interested in the property
comprised in the disposition, so far as may be just, in the position they
would have held if the question had not been so decided. |
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(4) |
Subject to subsection (3) above, where any such question is decided in
relation to a disposition by treating a person as able or unable to have a
child at a particular time, then he or she shall be so treated for the
purpose of any question which may arise on the rule against perpetuities in
relation to the same disposition in any subsequent proceedings. |
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(5) |
In the foregoing provisions of this section references to having a child are
references to begetting or giving birth to a child, but those provisions,
except subsection (2), shall apply in relation to the possibility that a
person will at any time have a child by adoption, legitimation or other means as they apply to his or her ability at that time to
beget or give birth to a child. |
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Uncertainty as to remoteness |
70. |
(1) |
Where, apart from the provisions of this section and sections 71 and 72 (
"the said provisions") a disposition would be void on the ground that the
interest disposed of might not become vested until too remote a time, the
disposition shall be treated, until such time, if any, as it becomes
established that the vesting must occur, if at all, after the end of the
perpetuity period, as if the disposition were not subject to the rule
against perpetuities; and its becoming so established shall not affect the
validity of anything previously done in relation to the interest disposed of
by way of advancement, application of intermediate income or otherwise. |
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(2) |
Where, apart from the said provisions, a disposition consisting of the
conferring of a general power of appointment would be void on the ground
that the power might not become exercisable until too remote a time, the
disposition shall be treated, until such time, if any, as it becomes
established that the power will not be exercisable within the perpetuity
period, as if the disposition were not subject to the rule against
perpetuities. |
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(3) |
Where, apart from the said provisions, a disposition consisting of the
conferring of any power, option or other right would be void on the ground
that the right might be exercised at too remote a time, the disposition
shall be treated as regards any exercise of the right within the perpetuity
period as if it were not subject to the rule against perpetuities and,
subject to the said provisions, shall be treated as void for remoteness only
if, and so far as, the right is not fully exercised within that period. |
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(4) |
Where this section applies to a disposition and the duration of the
perpetuity period is not determined by virtue of section 68 or subsection
(3) of section 76, it shall be determined as follows: |
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(a) |
where any persons falling within subsection (5) are individuals in being and
ascertainable at the commencement of the perpetuity period the
duration of the period shall be determined by reference to their lives and
no others, but so that the lives of any description of persons falling
within paragraph (b) or (c) of that subsection shall be disregarded if the
number of persons of that description is such as to render it impracticable
to ascertain the date of death of the survivor; and |
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(b) |
where there are no lives in being within the meaning of paragraph (a) the
period shall be 21 years. |
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(5) |
The said persons are as follows:- |
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(a) |
the person by whom the disposition was made; |
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(b) |
a person to whom or in whose favour the disposition was made, that is to
say, |
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(i) |
in the case of a disposition to a class of persons, any member or potential
member of the class, |
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(ii) |
in the case of an individual disposition to a person taking only on certain
conditions being satisfied, any person as to whom some of the conditions are
satisfied and the remainder may in time be satisfied, |
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(iii) |
in the case of a special power of appointment exercisable in favour of
members of a class, any member or potential member of the class, |
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(iv) |
in the case of a special power of appointment exercisable in favour of one
person only, that person or, where the object of the power is ascertainable
only on certain conditions being satisfied, any person as to whom some of
the conditions are satisfied and the remainder may in time be satisfied, |
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(v) |
in the case of any power, option or other right, the person on whom the
right is conferred; |
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(c) |
a person having a child or grandchild within sub-paragraphs (i) to (iv) of paragraph (b), or any of
whose children or grandchildren, if subsequently born, would by virtue of his or
her descent fall within those sub-paragraphs; and |
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(d) |
any person on the failure or determination of whose prior interest the
disposition is limited to take effect. |
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(6) |
The provisions of this section shall be deemed to apply to any trust created
on or after 16th July, 1964 with an express perpetuity period not exceeding
80 years, and where a disposition made on or after 16th July, 1964 would
have been void ab initio but for this provision the
disposition shall be deemed to be valid if the trustees of the trust declare in
writing that the provisions of this subsection shall apply to the disposition. |
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Reduction of age and exclusion of class members to avoid
remoteness |
71. |
(1) |
Where a disposition is limited by reference to the attainment by any person
or persons of a specified age exceeding 21 years, and it is apparent at the
time the disposition is made or becomes apparent at a subsequent time that
the disposition would, apart from this section, be void for remoteness, but
that it would not be so void if the specified age had been 21 years, the
disposition shall be treated for all purposes as if, instead of being
limited by reference to the age in fact specified, it had been limited by
reference to the age nearest to that age which would, if specified instead,
have prevented the disposition from being so void. |
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(2) |
Where in the case of any disposition different ages exceeding 21 years are
specified in relation to different persons |
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(a) |
the reference in subsection (1) to the specified age shall be construed as a
reference to all the specified ages; and |
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(b) |
subsection (1) shall operate to reduce each such age so far as is necessary
to save the disposition from being void for remoteness. |
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(3) |
Where the inclusion of any persons, being potential members of a class or
unborn persons who at birth would become members or potential members of the
class, prevents the foregoing provisions of this section from operating to
save a disposition from being void for remoteness, those persons shall
thenceforth be deemed for all the purposes of the disposition to be excluded
from the class, and the said provisions shall thereupon have effect
accordingly. |
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(4) |
Where, in the case of a disposition to which subsection (3) does not apply,
it is apparent at the time the disposition is made or becomes apparent at a
subsequent time that, apart from this subsection, the inclusion of any
persons, being potential members of a class or unborn persons who at birth
would become members or potential members of the class, would cause the
disposition to be treated as void for remoteness, those persons shall,
unless their exclusion would exhaust the class, thenceforth be deemed for
all the purposes of the disposition to be excluded from the class. |
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(5) |
Where this section has effect in relation to a disposition to which section
70 above applies, the operation of this section shall not affect the
validity of anything previously done in relation to the interest disposed of
by way of advancement, application of intermediate income or otherwise. |
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Condition relating to death of surviving spouse |
72. |
Where a disposition is limited by reference to the time of death of the
survivor of a person in being at the commencement of the perpetuity period
and any spouse of that person, and that time has not arrived at the end of
the perpetuity period, the disposition shall be treated for all purposes,
where to do so would save it from being void for remoteness, as if it had
instead been limited by reference to the time immediately before the end of
that period. |
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Saving and acceleration of expectant interests |
73. |
A disposition shall not treated as void for remoteness by reason only that
the interest disposed of is ulterior to and dependent upon an interest under
a disposition which is so void, and the vesting of an interest shall not be
prevented from being accelerated on the failure of a prior interest by
reason only that the failure arises because of remoteness. |
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Powers of appointment |
74. |
For the purposes of the rule against perpetuities, a power of appointment
shall be treated as a special power unless |
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(a) |
in the instrument creating the power it is expressed to be exercisable by
one person only; and |
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(b) |
it could, at all times during its currency when that person is of full age
and capacity, be exercised by him so as immediately to transfer to himself
the whole of the interest governed by the power without the consent of any
other person or compliance with any other condition, not being a formal
condition relating only to the mode of exercise of the power, except that
for the purpose of determining whether a disposition made under a power of
appointment exercisable by will only is void
for remoteness, the power shall be treated as a general power where it would
have fallen to be so treated if exercisable by deed. |
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Administrative powers of trustees |
75. |
(1) |
The rule against perpetuities shall not operate to invalidate a power
conferred on trustees or other persons to sell, lease, exchange or otherwise
dispose of any property for full consideration, or to do any other act in
the administration (as opposed to the distribution) of any property, and
shall not prevent the payment to trustees or other persons of reasonable
remuneration for their services. |
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(2) |
Subsection (1) shall apply for the purpose of enabling a power to be
exercised at any time after the commencement of this Part notwithstanding
that the power is conferred by an instrument which took effect before that
commencement. |
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Options relating to land |
76. |
(1) |
The rule against perpetuities shall not apply to a disposition consisting of
the conferring of an option to acquire for valuable consideration an
interest reversionary, whether directly or indirectly, on the term of a
lease if |
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(a) |
the option is exercisable only by the lessee or his successors in title; and |
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(b) |
it ceases to be exercisable at or before the expiration of one year
following the determination of the lease. |
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(2) |
Subsection (1) shall apply in relation to an agreement for a lease as it
applies in relation to a lease, and "lessee" shall be construed accordingly. |
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(3) |
Except as provided in subsection (1), in the case of a disposition
consisting of the conferring of an option to acquire for valuable
consideration any interest in land, the perpetuity period under the rule
against perpetuities shall be 21 years, and section 68 shall not apply. |
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(4) |
Subsection (3) shall not apply to a right of pre-emption conferred on any
governmental or public authority in respect of land used or to be used for
religious purposes where the right becomes exercisable only if the land
ceases to be used for such purposes. |
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Possibilities of reverter, conditions subsequent, exceptions
and reservations |
77. |
(1) |
In the case of |
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(a) |
a possibility of reverter on the determination of a determinable fee simple; or |
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(b) |
a possibility of a resulting trust on the determination of any other
determinable interest in property, |
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the rule against perpetuities shall apply in relation to the provision
causing the interest to be determinable as it would apply if that provision were
expressed in the form of a condition subsequent giving rise, on breach thereof,
to a right of re-entry or an equivalent right in the case of property other than
land, and where the provision falls to be treated as void for remoteness the
determinable interest shall become an absolute interest. |
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Accumulation of income |
78. |
Subject to any term of a trust prohibiting the accumulation of income or
directing or authorizing the accumulation of income for a period shorter
than the period of the trust, income may be accumulated for the duration of
the period of the trust. |
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Interpretation and extent of Part VII |
79. |
(1) |
In this Part |
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(a) |
"disposition", includes the conferring of a power of appointment and any
other disposition of an interest in or right over property, and references
to the interest disposed of shall be construed accordingly; |
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(b) |
"in being" means living or en ventre sa mere; |
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(c) |
"power of appointment" includes any discretionary power to transfer a
beneficial interest in property without the furnishing of valuable
consideration; and |
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(d) |
"will" includes a codicil. |
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(2) |
For the purposes of this Part a disposition contained in a will shall be
deemed to be made at the death of the testator. |
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(3) |
For the purposes of this Part a person shall be treated as a member of a
class if in his case all the conditions identifying a member of the class
are satisfied, and shall be treated as a potential member if in his case
some only of those conditions are satisfied but there is a possibility that
the remainder will in time be satisfied. |
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(4) |
Nothing in this Part shall affect the operation of the rule of law rendering
void for remoteness certain dispositions under which property is limited to
be applied for purposes other than the benefit of any person or class of
persons in cases where the property may be so applied after the end of the
perpetuity period. |
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(5) |
This Part shall apply in relation to a disposition made otherwise than by an
instrument as if the disposition had been contained in an instrument taking
effect when the disposition was made. |
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(6) |
This Part shall apply, except as provided in subsection (6) of section 70,
and subsection (2) of section 75, only in relation to instruments taking
effect after the commencement of this Part, and in the case of an instrument
made in the exercise of a special power of appointment shall apply only
where the instrument creating the power takes effect after that commencement
except that section 74 shall apply in all cases for construing the foregoing
reference to a special power of appointment. |
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