sec.12Power of appointing new trustees

### sec.12 Power of appointing new trustees Where a trustee, whether original or substituted, and whether appointed by the court or otherwise— is dead; or remains out of the State for more than 1 year without having properly delegated the execution of the trust; or seeks to be discharged from all or any of the trusts or powers reposed in or conferred on the trustee; or refuses to act therein; or is unfit to act therein; or is incapable of acting therein; or is an infant; or being a corporation, has ceased to carry on business, is under official management, is in liquidation or has been dissolved; then the person nominated for the purpose of appointing new trustees by the instrument (if any) creating the trust, or 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 representative of the last surviving or continuing trustee, may by writing appoint a person or persons (whether or not being the person or persons exercising the power) to be a trustee or trustees in the place of the trustee first in this subsection mentioned. On the appointment of a trustee or trustees for the whole or any part of the trust property— the number of trustees may, subject to the restriction imposed by this Act on the number of trustees, be increased; and a separate set of trustees may be appointed for any part of the trust property held on trusts distinct from those relating to any other part, and whether or not new trustees are or are to be appointed for any other part of the trust property; and any existing trustee may be appointed or remain 1 of the separate set of trustees; or if only 1 trustee were originally appointed, then 1 separate trustee may be so appointed for the part of the trust first in this paragraph mentioned; and it is not obligatory to fill up the original number of trustees where 2 or more trustees were originally appointed; but (except where only 1 trustee was originally appointed or where the trust instrument otherwise provides) a trustee is not discharged under this section unless— in the case of any trust (including a trust referred to in subparagraph (ii) )—there will remain either a trustee corporation or at least 2 individuals to act as trustees of the trust; or in the case of a trust for any charitable or public purpose or for any purpose of recreation or other leisuretime use or occupation—there will remain a local government to act as trustee of the trust; and any assurance or thing requisite for vesting the trust property, or any part thereof, jointly in the persons who are the trustees shall be executed or done. 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 that trustee were dead, or, in the case of a corporation, as if the corporation had been dissolved, and the provisions of this section shall apply accordingly. The power of appointment given by subsection (1) , or any similar previous enactment, to the personal representative of the last surviving or continuing trustee is and shall be deemed always to have been exercisable by the administrator for the time being of that trustee or the executor for the time being, whether original or by representation, of that surviving or continuing trustee who has proved the will of his or her testator without the concurrence of any executor who has renounced or has not proved. Where, in the case of any trust, there are not more than 3 trustees (none of them being a trustee corporation or a local government), then— the person or persons nominated for the purpose of appointing new trustees by the instrument (if any) creating the trust; or where there is no person nominated for the purpose of appointing new trustees by the instrument creating the trust, or no such person able and willing to act, then the trustee or trustees for the time being; may, by writing, appoint a person or persons (whether or not being the person or persons exercising the power) 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; but (except where the Minister has given a certificate in writing that the Minister approves the appointment of the additional trustees) on any appointment of additional trustees under this subsection the number of trustees shall not be increased beyond 4. Every new trustee appointed under this section has the same powers, authorities, and discretions and may in every respect act, as if the new trustee had originally been appointed a trustee by the instrument (if any) creating the trust, both before and after all the trust property becomes by law or by assurance or otherwise vested in the trustee. The provisions of this section which are brought into effect by the circumstance that a person nominated trustee (whether sole or otherwise) in a will is dead are brought into effect whether the death of that person occurred before or after the death of the testator; and the provisions relative to a continuing trustee relate also to a refusing or retiring trustee, if willing to act in the execution of the provisions of this section. The provisions of this section relating to a person nominated for the purpose of appointing new trustees apply whether the appointment is 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. In this section— trustee does not include a personal representative as such. In this section— trustee corporation — includes the public trustee of another State, or a person in that State discharging functions similar to the public trustee of this State; includes a trustee corporation authorised by the laws of another State to administer the estate of deceased persons and other trust estates. s 12 amd 1979 No. 28 s 4 ; 1981 No. 72 s 8 ; 1990 No. 80 s 3 sch 1 (sec.12-ssec.1) Where a trustee, whether original or substituted, and whether appointed by the court or otherwise— is dead; or remains out of the State for more than 1 year without having properly delegated the execution of the trust; or seeks to be discharged from all or any of the trusts or powers reposed in or conferred on the trustee; or refuses to act therein; or is unfit to act therein; or is incapable of acting therein; or is an infant; or being a corporation, has ceased to carry on business, is under official management, is in liquidation or has been dissolved; then the person nominated for the purpose of appointing new trustees by the instrument (if any) creating the trust, or 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 representative of the last surviving or continuing trustee, may by writing appoint a person or persons (whether or not being the person or persons exercising the power) to be a trustee or trustees in the place of the trustee first in this subsection mentioned. (sec.12-ssec.2) On the appointment of a trustee or trustees for the whole or any part of the trust property— the number of trustees may, subject to the restriction imposed by this Act on the number of trustees, be increased; and a separate set of trustees may be appointed for any part of the trust property held on trusts distinct from those relating to any other part, and whether or not new trustees are or are to be appointed for any other part of the trust property; and any existing trustee may be appointed or remain 1 of the separate set of trustees; or if only 1 trustee were originally appointed, then 1 separate trustee may be so appointed for the part of the trust first in this paragraph mentioned; and it is not obligatory to fill up the original number of trustees where 2 or more trustees were originally appointed; but (except where only 1 trustee was originally appointed or where the trust instrument otherwise provides) a trustee is not discharged under this section unless— in the case of any trust (including a trust referred to in subparagraph (ii) )—there will remain either a trustee corporation or at least 2 individuals to act as trustees of the trust; or in the case of a trust for any charitable or public purpose or for any purpose of recreation or other leisuretime use or occupation—there will remain a local government to act as trustee of the trust; and any assurance or thing requisite for vesting the trust property, or any part thereof, jointly in the persons who are the trustees shall be executed or done. (sec.12-ssec.3) 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 that trustee were dead, or, in the case of a corporation, as if the corporation had been dissolved, and the provisions of this section shall apply accordingly. (sec.12-ssec.4) The power of appointment given by subsection (1) , or any similar previous enactment, to the personal representative of the last surviving or continuing trustee is and shall be deemed always to have been exercisable by the administrator for the time being of that trustee or the executor for the time being, whether original or by representation, of that surviving or continuing trustee who has proved the will of his or her testator without the concurrence of any executor who has renounced or has not proved. (sec.12-ssec.5) Where, in the case of any trust, there are not more than 3 trustees (none of them being a trustee corporation or a local government), then— the person or persons nominated for the purpose of appointing new trustees by the instrument (if any) creating the trust; or where there is no person nominated for the purpose of appointing new trustees by the instrument creating the trust, or no such person able and willing to act, then the trustee or trustees for the time being; may, by writing, appoint a person or persons (whether or not being the person or persons exercising the power) 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; but (except where the Minister has given a certificate in writing that the Minister approves the appointment of the additional trustees) on any appointment of additional trustees under this subsection the number of trustees shall not be increased beyond 4. (sec.12-ssec.6) Every new trustee appointed under this section has the same powers, authorities, and discretions and may in every respect act, as if the new trustee had originally been appointed a trustee by the instrument (if any) creating the trust, both before and after all the trust property becomes by law or by assurance or otherwise vested in the trustee. (sec.12-ssec.7) The provisions of this section which are brought into effect by the circumstance that a person nominated trustee (whether sole or otherwise) in a will is dead are brought into effect whether the death of that person occurred before or after the death of the testator; and the provisions relative to a continuing trustee relate also to a refusing or retiring trustee, if willing to act in the execution of the provisions of this section. (sec.12-ssec.8) The provisions of this section relating to a person nominated for the purpose of appointing new trustees apply whether the appointment is 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. (sec.12-ssec.9) In this section— trustee does not include a personal representative as such. (sec.12-ssec.10) In this section— trustee corporation — includes the public trustee of another State, or a person in that State discharging functions similar to the public trustee of this State; includes a trustee corporation authorised by the laws of another State to administer the estate of deceased persons and other trust estates. - (a) is dead; or - (b) remains out of the State for more than 1 year without having properly delegated the execution of the trust; or - (c) seeks to be discharged from all or any of the trusts or powers reposed in or conferred on the trustee; or - (d) refuses to act therein; or - (e) is unfit to act therein; or - (f) is incapable of acting therein; or - (g) is an infant; or - (h) being a corporation, has ceased to carry on business, is under official management, is in liquidation or has been dissolved; - (a) the number of trustees may, subject to the restriction imposed by this Act on the number of trustees, be increased; and - (b) a separate set of trustees may be appointed for any part of the trust property held on trusts distinct from those relating to any other part, and whether or not new trustees are or are to be appointed for any other part of the trust property; and any existing trustee may be appointed or remain 1 of the separate set of trustees; or if only 1 trustee were originally appointed, then 1 separate trustee may be so appointed for the part of the trust first in this paragraph mentioned; and - (c) it is not obligatory to fill up the original number of trustees where 2 or more trustees were originally appointed; but (except where only 1 trustee was originally appointed or where the trust instrument otherwise provides) a trustee is not discharged under this section unless— (i) in the case of any trust (including a trust referred to in subparagraph (ii) )—there will remain either a trustee corporation or at least 2 individuals to act as trustees of the trust; or (ii) in the case of a trust for any charitable or public purpose or for any purpose of recreation or other leisuretime use or occupation—there will remain a local government to act as trustee of the trust; and - (i) in the case of any trust (including a trust referred to in subparagraph (ii) )—there will remain either a trustee corporation or at least 2 individuals to act as trustees of the trust; or - (ii) in the case of a trust for any charitable or public purpose or for any purpose of recreation or other leisuretime use or occupation—there will remain a local government to act as trustee of the trust; and - (d) any assurance or thing requisite for vesting the trust property, or any part thereof, jointly in the persons who are the trustees shall be executed or done. - (i) in the case of any trust (including a trust referred to in subparagraph (ii) )—there will remain either a trustee corporation or at least 2 individuals to act as trustees of the trust; or - (ii) in the case of a trust for any charitable or public purpose or for any purpose of recreation or other leisuretime use or occupation—there will remain a local government to act as trustee of the trust; and - (a) the person or persons nominated for the purpose of appointing new trustees by the instrument (if any) creating the trust; or - (b) where there is no person nominated for the purpose of appointing new trustees by the instrument creating the trust, or no such person able and willing to act, then the trustee or trustees for the time being; - (a) includes the public trustee of another State, or a person in that State discharging functions similar to the public trustee of this State; - (b) includes a trustee corporation authorised by the laws of another State to administer the estate of deceased persons and other trust estates.