On 19/05/2013,
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incorporating all amendments published on or before 19/05/2013.
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PART IV
APPOINTMENT AND DISCHARGE OF TRUSTEES
36.
—(1) In the case of settlements and dispositions on trust of property, whether movable or immovable, made or coming into operation on or after 1st September 1929 —
(a)
the number of trustees thereof shall not in any case exceed 4, and where more than 4 persons are named as such trustees, the 4 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; and
(b)
the number of the trustees shall not be increased beyond 4.
(2) The restrictions hereby imposed on the number of trustees shall not apply in the case of property vested in trustees for charitable, religious or public purposes.
[Trustees Ordinance 1955 Ed., s. 36]
37.
—(1) Where a trustee, either original or substituted, and whether appointed by a court or otherwise —
(a)
is dead;
(b)
remains out of Singapore for more than 12 months;
(c)
desires to be discharged from all or any of the trusts or powers reposed in or conferred on him;
(d)
refuses or is unfit to act therein;
(e)
is incapable of acting therein; or
(f)
is an infant,
then, subject to the restrictions imposed by this Act on the number of trustees —
(i)
the person or persons nominated for the purpose of appointing new trustees by the instrument, if any, creating the trust; or
(ii)
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 Singapore, desiring to be discharged, refusing, or being unfit or being incapable, or being an infant.
(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 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, on or after 1st September 1929, then, for the purposes of this section and of any written law replaced thereby, 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) or any similar previous written law 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 similar previous written law, if willing to act for that purpose and without thereby accepting the office of executor.
(6) Where a sole trustee, other than a trust corporation, is or has been originally appointed to act in a trust, or where, in the case of any trust, there are not more than 3 trustees (none of them being a trust corporation) either original or substituted and whether appointed by the court or otherwise, then and in any such case —
(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 trustee or trustees for the time being,
may, by writing, appoint another person or other persons to be an additional trustee or additional trustees.
(7) It shall not be obligatory to appoint any additional trustee under subsection (6) unless the instrument, if any, creating the trust, or any written law provides to the contrary, nor shall the number of trustees be increased beyond 4 by virtue of any such appointment.
(8) 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.
(9) The provisions of this section relating to a trustee who is dead include the case of a person nominated a 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.
(10) Where a trustee lacks capacity (within the meaning of the Mental Capacity Act 2008) to exercise his functions as trustee and 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.
[Trustees Ordinance 1955 Ed., s. 37]
38.
—(1) On the appointment of a trustee for the whole or any part of trust property —
(a)
the number of trustees may, subject to the restrictions imposed by this Act on the number of trustees, be increased;
(b)
a separate set of trustees, not exceeding 4, 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, except as hereinafter provided, one separate trustee may be appointed;
(c)
it shall not be obligatory, except as hereinafter provided, 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 2 trustees were originally appointed, but, except where only one trustee was originally appointed, and a sole trustee when appointed will be able to give valid receipts for all capital money, a trustee shall not be discharged from his trust unless there will be either a trust corporation or at least 2 individuals to act as trustees to perform the trust; and
(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.
(2) Nothing in this Act shall authorise the appointment of a sole trustee, not being a trust corporation, where the trustee, when appointed, would not be able to give valid receipts for all capital money arising under the trust.
[Trustees Ordinance 1955 Ed., s. 38]
39.
—(1) A statement contained in any instrument coming into operation on or after 1st September 1929 by which a new trustee is appointed for any purpose connected with land, to the effect that a trustee has remained out of Singapore for more than 12 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.
(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.
[Trustees Ordinance 1955 Ed., s. 39]
40.
—(1) Where a trustee is desirous of being discharged from the trust, and after his discharge there will be either a trust corporation or at least 2 individuals to act as trustees to perform the trust, then —
(a)
if such trustee by deed declares that he is desirous of being discharged from the trust; and
(b)
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.
(2) Any assurance or thing requisite for vesting the trust property in the continuing trustees alone shall be executed or done.
[Trustees Ordinance 1955 Ed., s. 40]
41.
—(1) Where by a deed a new trustee is appointed to perform any trust, then —
(a)
if the deed contains a declaration by the appointor 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
(b)
if the deed is made on or after 1st September 1929 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 the appointor extending to all the estates, interests and rights with respect to which a declaration could have been made.
(2) Where by a deed a retiring trustee is discharged under the statutory power without a new trustee being appointed, then —
(a)
if the deed contains such a declaration as referred to in subsection (1) 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
(b)
if the deed is made on or after 1st September 1929 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 referred to in paragraph (a) extending to all the estates, interests and rights with respect to which a declaration could have been made.
(3) An express vesting declaration, whether made before, on or after 1st September 1929, shall, notwithstanding that the estate, interest or 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 provision 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, interests and rights as are capable of being and ought to be vested in those persons.
(4) This section shall not extend —
(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;
(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 written law or rule of law, the vesting declaration, express or implied, would not operate as a breach of covenant or give rise to a forfeiture; or
(c)
to any share, stock, annuity or property which is only transferable in books kept by a company or other body, or in the manner directed by or under any written law.
(5) In subsection (4), “lease” includes an underlease and an agreement for a lease or underlease.
(6) This section shall apply to deeds of appointment or discharge executed on or after 1st August 1886.
[Trustees Ordinance 1955 Ed., s. 41]