41Power of appointing new or additional trustees

41 Power of appointing new or additional trustees S. 41(1) amended by Nos 6867 s. 2(Sch. 1), 9075 s. 5(1), 9427 s. 5(Sch. 4 item 12). (1) Where a trustee is dead, or remains out of Victoria for more than one year without having properly delegated the execution of the trust, 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 a minor, then, subject to the restrictions imposed by this Act on the number of trustees— (a) the person or persons nominated for the purpose of appointing new trustees by the instrument (if any) creating the trust; or (b) if there is no such person or no such person able and willing to act, then the surviving or continuing trustees or trustee for the time being, or the personal representatives of the last surviving or continuing trustee— may, by writing, 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 Victoria, desiring to be discharged, refusing, or being unfit, or being incapable, or being a minor as aforesaid. (2) Where a trustee has been removed under a power contained in the instrument creating the trust, then 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. (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 and of any corresponding previous enactment, 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. (4) The power of appointment given by subsection (1) of this section or any corresponding 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. (5) But a sole or last surviving executor intending to renounce, or all the executors where they all intend to renounce, shall have and shall be deemed always to have had power, at any time before renouncing probate, to exercise the power of appointment given by this section, or by any corresponding previous enactment, if willing to act for that purpose and without thereby accepting the office of executor. S. 41(6) amended by Nos 55/1987 s. 57(3)(Sch. 5 item 67), 45/1994 s. 42(Sch. item 12.9). (6) Where in the case of any trust, there are not more than three trustees (none of them being a trustee company)— (a) the person or persons nominated for the purpose of appointing new trustees by the instrument (if any) creating the trust; or (b) if there is no such person, or no such person able and willing to act, the trustee or trustees for the time being— may, by writing, 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, or any statutory enactment provides to the contrary, nor shall the number of trustees be increased beyond four by virtue of any such appointment. (7) 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. (8) The provisions of this section relative 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. S. 41(9) substituted by Nos 7332 s. 2(Sch. 1 item 115), 59/1986 s. 143(2), amended by Nos 26/2014 s. 455(Sch. item 32), 39/2022 s. 875. (9) If a person who is a patient within the meaning of the **Mental Health and Wellbeing Act 2022** is a trustee of property and is entitled in possession to some beneficial interest in the property no appointment of a new trustee in his or her place can be made by the continuing trustee or trustees under this section unless leave has been given— S. 41(9)(a) amended by Nos 52/1998 s. 311(Sch. 1 item 98), 13/2019 s. 221(Sch. 1 item 55). (a) in the case of a represented person within the meaning of the **Guardianship and Administration Act 2019**, by the guardian or administrator; or (b) in any other case, by the Court. (10) The provisions of this section relative to a person nominated for the purpose of appointing new trustees apply, whether the appointment is to be made in a case specified in this section or in a case specified in the instrument (if any) creating the trust, but where a new trustee is appointed under this section in a case specified in that instrument, the appointment shall be subject to the terms applicable to an appointment in that case under the provisions of that instrument. No. 5770 s. 42.