—(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 resell, without being answerable for any loss.
(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.
[UK Trustee 1925, s. 12 (1) and (2); Trustees Ordinance 1955 Ed., s. 13]
—(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.
(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.
(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 as mentioned in subsection (2).
(4) This section shall apply to sales made before, on or after 1st September 1929.
[UK Trustee 1925, s. 13; Trustees Ordinance 1955 Ed., s. 14]
—(1) The receipt in writing of a trustee for any money, securities, investments 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
effectually exonerate him from seeing to the application or being answerable for any loss or misapplication thereof.
(2) This section does not, except where the trustee is a trust corporation, enable a sole trustee to give a valid receipt for the proceeds of sale or other capital money arising under a trust for sale of land.
(3) Notwithstanding anything to the contrary in a disposition on trust for sale of land or in the settlement of the net proceeds, the proceeds of sale or other capital money arising under the disposition shall not be paid to or applied by the direction of fewer than 2 persons as trustees of the disposition, except where the trustee is a trust corporation.
(4) Subsection (3) does not affect the right of a sole personal representative as such to give valid receipts for or direct the application of the proceeds of sale or other capital money mentioned in that subsection; nor, except where capital money arises on a transaction, render it necessary to have more than one trustee.
(5) This section shall apply notwithstanding anything to the contrary in the instrument, if any, creating the trust.
[UK Trustee 1925, s. 14; Trustees Ordinance 1955 Ed., s. 15]
—(1) A personal representative, or 2 or more trustees acting together, or, subject to the restrictions imposed in regard to receipts by a sole trustee not being a trust corporation, a sole acting trustee where by the instrument, if any, creating the trust, or by statute, a sole trustee is authorised to execute the trusts and powers reposed in him, may, if and as he or they think fit —
accept any property before the time at which it is made transferable or payable;
sever and apportion any blended trust funds or property;
pay or allow any debt or claim on any evidence that he or they think sufficient;
accept any composition or any security for any debt or for any property claimed;
allow any time for payment of any debt; or
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.
(2) For any of the purposes mentioned in subsection (1)(a) to (f), such person 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 if he has or they have discharged the statutory duty of care.
[UK Trustee 1925, s. 15; Trustees Ordinance 1955 Ed., s. 16]
—(1) A trustee of any leaseholds for lives or years which are renewable from time to time either under any covenant or contract, or by custom or usual practice, may, if he thinks fit, and shall, if thereto required by any person having any beneficial interest, present or future, or contingent, in the leaseholds, use his best endeavours to obtain from time to time a renewed lease of the same hereditaments on the accustomed and reasonable terms, and for that purpose may, from time to time, make or concur in making a surrender of the lease for the time being subsisting, and do all such other acts as are requisite.
(2) Where by the terms of the settlement or will the person in possession for his life or other limited interest is entitled to enjoy the same without any obligation to renew or to contribute to the expense of renewal, this section shall not apply unless the consent in writing of that person is obtained to the renewal on the part of the trustee.
(3) If money is required to pay for the renewal, the trustee effecting the renewal may pay the same out of any money then in his hands in trust for the persons beneficially interested in the lands to be comprised in the renewed lease, and if he has not in his hands sufficient money for the purpose he may raise the money required by mortgage of the hereditaments to be comprised in the renewed lease or of any other hereditaments for the time being subject to the uses or trusts to which those hereditaments are subject.
(4) No person advancing money upon a mortgage purporting to be under subsection (3), shall be bound to see that the money is wanted, or that no more is raised than is wanted for the purpose, or otherwise as to the application thereof.
[Trustees Ordinance 1955 Ed., s. 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.
(2) This section shall apply notwithstanding anything to the contrary contained in the instrument, if any, creating the trust, but shall not apply to trustees of property held for charitable purposes.
[UK Trustee 1925, s. 16; Trustees Ordinance 1955 Ed., s. 18]
19. No purchaser or mortgagee, paying or advancing money on a sale or mortgage purporting to be made under any trust or power vested in trustees, shall be concerned to see that such money is wanted, or that no more is raised than is wanted, or otherwise as to the application thereof.
[UK Trustee 1925, s. 17; Trustees Ordinance 1955 Ed., s. 19]
—(1) Where a power or trust is given to or imposed on 2 or more trustees jointly, the same may be exercised or performed by the survivors or survivor of them for the time being.
(2) Until the appointment of new trustees, the personal representatives or representative for the time being of a sole trustee, or, where there were 2 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 trustees or trustee for the time being of the trust.
(3) This section shall take effect subject to the restrictions imposed in regard to receipts by a sole trustee, not being a trust corporation.
(4) In this section, “personal representative” shall not include an executor who has renounced or has not proved.
[UK Trustee 1925, s. 18; Trustees Ordinance 1955 Ed., s. 20]
—(1) A trustee may —
insure any property which is subject to the trust against risks of loss or damage due to any event; and
pay the premiums out of the trust funds.
(2) In the case of property held on a bare trust, the power to insure is subject to any direction given by the beneficiary or each of the beneficiaries —
that any property specified in the direction is not to be insured; or
that any property specified in the direction is not to be insured except on such conditions as may be so specified.
(3) If a direction under subsection (2) is given, the power to insure, so far as it is subject to the direction, ceases to be a delegable function for the purposes of section 41B.
(4) For the purposes of this section —
property is held on a bare trust if it is held on trust for —
a beneficiary who is of full age and capacity and absolutely entitled to the property subject to the trust; or
beneficiaries each of whom is of full age and capacity and who (taken together) are absolutely entitled to the property subject to the trust; and
“trust funds” means any income or capital funds of the trust.
(5) This section shall apply in relation to trusts whether created before, on or after 15th December 2004.
[UK Trustee 2000, s. 34]
—(1) Money receivable by trustees or any beneficiary under a policy of insurance against the loss or damage of any property that is subject to a trust shall, where the policy has been kept up under any trust in that behalf or under any power statutory or otherwise, or in the 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 purpose of the trust.
(2) If any such money is receivable by any person, other than the trustees of the trust, 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 it, to the trustees of the trust, or, if there are no trustees capable of giving a discharge therefor, into court.
(3) Any such money —
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; and
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.
(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.
(5) Nothing 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, replacing or repairing the property lost or damaged, or the right of any mortgagee, lessor or lessee, whether under any statute or otherwise.
(6) This section shall apply to policies effected either before, on or after 1st September 1929, but only to money received on or after that date.
[UK Trustee 1925, s. 20; Trustees Ordinance 1955 Ed., s. 22]
Deposit of documents for safe custody
23. [Repealed by Act 45/2004]
—(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 —
agree or ascertain the amount or value thereof or any part thereof in such manner as they may think fit;
accept in or towards satisfaction thereof, at the market or current value, or upon any valuation or estimate of value which they may think fit, any authorised investments;
allow any deductions for duties, costs, charges and expenses which they may think proper or reasonable;
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,
without being responsible in any such case for any loss occasioned by any act or thing so done by them if they have discharged the statutory duty of care.
(2) The trustees shall not be under any obligation and shall not be chargeable with any breach of trust by reason of any omission —
to apply for any stop or other like order upon any securities or other property out of or on which such share or interest or other thing in action as referred to in subsection (1) is derived, payable or charged; or
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,
unless required in writing to do so 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.
(3) Nothing in subsection (2) 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.
(4) 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 statute, 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 discharge of the statutory duty of care shall be binding upon all persons interested under the trust.
(5) 4 Trustees may, in their absolute discretion, from time to time, but not more than once in every year 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.
(6) 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.
[UK Trustee 1925, s. 22; Trustees Ordinance 1955 Ed., s. 24]
Power to employ agents
25. [Repealed by Act 45/2004]
26. 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 representatives 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.
[UK Trustee 1925, s. 24; Trustees Ordinance 1955 Ed., s. 26]
—(1) Notwithstanding any rule of law or equity to the contrary, a trustee may, by power of attorney, delegate the execution or exercise of all or any trusts, powers and discretions vested in him as trustee either alone or jointly with any other person or persons.
(2) A delegation under this section —
shall commence as provided by the instrument creating the power or, if the instrument makes no provision as to the commencement of the delegation, on the date of the execution of the instrument by the donor; and
shall continue for a period of 18 months or any shorter period provided by the instrument creating the power.
(3) The persons who may be donees of a power of attorney under this section include a trust corporation.
(4) Before or within 7 days after giving a power of attorney under this section, the donor shall give written notice of it (specifying the date on which the power comes into operation and its duration, the donee of the power, the reason why the power is given and, where only some trusts, powers and discretions are delegated, the trusts, powers and discretions delegated) to —
each person (other than himself), if any, who under any instrument creating the trust has power (whether alone or jointly) to appoint a new trustee; and
each of the other trustees, if any,
but failure to comply with this subsection shall not, in favour of a person dealing with the donee of the power, invalidate any act done or instrument executed by the donee.
(5) A power of attorney given under this section by a single donor —
in the form set out in the Third Schedule; or
in a form to the like effect but expressed to be made under this subsection,
shall operate to delegate to the person identified in the form as the single donee of the power, the execution and the exercise of all the trusts, powers and discretions vested in the donor as trustee (either alone or jointly with any other person or persons) under the single trust so identified.
(6) 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.
(7) 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 statute or by the instrument creating the trust, including power, for the purpose of the transfer of any inscribed stock or securities, for himself to delegate to an attorney the power to transfer, but not including the power of delegation conferred by this section.
(8) The fact that it appears from any power of attorney given under this section, or from any evidence required for the purposes of any such power of attorney or otherwise, that in dealing with any stock or securities the donee of the power is acting in the execution of a trust shall not be deemed for any purpose to affect the Depository (as defined in section 130A of the Companies Act (Cap. 50)), any person in whose books the stock is inscribed or registered or the issuer of the securities with any notice of the trust.
(9) This section shall apply to a personal representative as it applies to a trustee except that subsection (4) shall apply as if it required the notice referred therein to be given to each of the other personal representatives, if any, except any executor who has renounced probate.
[UK Trustee 1925, s. 25 (as amended by UK Powers of Attorney Act 1971)]