On 26/05/2013,
you requested for the version in force on 26/05/2013
incorporating all amendments published on or before 26/05/2013.
The closest version currently available is that of 01/03/2010.
PART IVA
AGENTS, NOMINEES AND CUSTODIANS
41A.
—(1) Subject to subsection (2), this Part shall apply in relation to trusts whether created before, on or after 15th December 2004.
[45/2004]
(2) Except as otherwise provided in section 41I(4), this Part shall apply in relation to a trust having a sole trustee as it applies in relation to other trusts, and references to trustees in this Part (except in sections 41C(1) and (3) and 41J(4)) shall be read accordingly.
[45/2004]
Agents
41B.
—(1) Subject to the provisions of this Part, the trustees of a trust may authorise any person to exercise any or all of their delegable functions as their agent.
[45/2004]
(2) In the case of a trust other than a charitable trust, the trustees’ delegable functions consist of any function other than —
(a)
any function relating to whether or in what way any assets of the trust should be distributed;
(b)
any power to decide whether any fees or other payment due to be made out of the trust funds should be made out of income or capital;
(c)
any power to appoint a person to be a trustee of the trust; or
(d)
any power conferred by any other written law or the trust instrument which permits the trustees to delegate any of their functions or to appoint a person to act as a nominee or custodian.
[45/2004]
(3) In the case of a charitable trust, the trustees’ delegable functions are —
(a)
any function relating to carrying out a decision that the trustees have taken;
(b)
any function relating to the investment of assets subject to the trust (including, in the case of land held as an investment, managing the land and creating or disposing of an interest in the land); and
(c)
any function relating to the raising of funds for the trust otherwise than by means of profits of a trade which is an integral part of carrying out the trust’s charitable purpose.
[45/2004]
(4) For the purposes of subsection (3)(c), a trade is an integral part of carrying out a trust’s charitable purpose if, whether carried on in Singapore or elsewhere, the profits are applied solely to the purposes of the trust and either —
(a)
the trade is exercised in the course of the actual carrying out of a primary purpose of the trust; or
(b)
the work in connection with the trade is mainly carried out by beneficiaries of the trust.
[[UK Trustee 2000, s. 11] ]
[45/2004]
41C.
—(1) Subject to subsection (2), the persons whom the trustees may under section 41B authorise to exercise functions as their agent include one or more of their number.
[45/2004]
(2) The trustees may not authorise 2 or more persons to exercise the same function unless they are to exercise the function jointly.
[45/2004]
(3) The trustees may not, under section 41B, authorise a beneficiary to exercise any function as their agent (even if the beneficiary is also a trustee).
[45/2004]
(4) The trustees may, under section 41B, authorise a person to exercise functions as their agent even though he is also appointed to act as their nominee or custodian (whether under section 41G, 41H or 41I or any other power).
[UK Trustee 2000, s. 12]
[45/2004]
41D.
—(1) Subject to subsection (2), a person who is authorised under section 41B to exercise any function shall, notwithstanding the terms of the agency, be subject to any specific duties or restrictions attached to the function.
Example |
A person who is authorised under section 41B to exercise the general power of investment shall be subject to the duties under section 5 in relation to that power. |
[45/2004]
(2) A person who is authorised under section 41B to exercise a power which is subject to a requirement to obtain advice shall not be subject to the requirement if he is the kind of person from whom it would have been proper for the trustees, in compliance with the requirement, to obtain advice.
[UK Trustee 2000, s. 13]
[45/2004]
41E.
—(1) Subject to subsection (2) and sections 41F(2), 41R, 41S and 41T, the trustees may authorise a person to exercise functions as their agent on such terms as to remuneration and other matters as they may determine.
[45/2004]
(2) The trustees may not authorise a person to exercise functions as their agent on any of the terms set out in subsection (3) unless it is reasonably necessary for them to do so.
[45/2004]
(3) The terms for the purposes of subsection (2) are —
(a)
a term permitting the agent to appoint a substitute;
(b)
a term restricting the liability of the agent or his substitute to the trustees or any beneficiary; and
(c)
a term permitting the agent to act in circumstances capable of giving rise to a conflict of interest.
[[UK Trustee 2000, s. 14] ]
[45/2004]
41F.
—(1) The trustees may not authorise a person to exercise any of their asset management functions as their agent except by an agreement which is in writing or evidenced in writing.
[45/2004]
(2) The trustees may not authorise a person to exercise any of their asset management functions as their agent unless —
(a)
the trustees have provided that person with a statement that gives guidance as to how the functions should be exercised (referred to in this Act as a policy statement); and
(b)
the agreement under which the agent is to act includes a term to the effect that he will secure compliance with —
(i)
the policy statement; or
(ii)
if the policy statement is revised or replaced under section 41M, the revised or replacement policy statement.
[45/2004]
(3) The trustees shall formulate any guidance given in the policy statement with a view to ensuring that the functions will be exercised in the best interests of the trust.
[45/2004]
(4) The policy statement shall be in writing or evidenced in writing.
[45/2004]
(5) For the purposes of this section, the asset management functions of trustees are their functions relating to —
(a)
the investment of assets subject to the trust;
(b)
the acquisition of property which is to be subject to the trust; and
(c)
the management of property which is subject to the trust and the disposal of, or the creation or disposal of an interest in, such property.
[[UK Trustee 2000, s. 15] ]
[45/2004]
Nominees and custodians
41G.
—(1) Subject to the provisions of this Part, the trustees of a trust may —
(a)
appoint a person to act as their nominee in relation to such of the assets of the trust as they may determine (other than settled land); and
(b)
take such steps as are necessary to secure that those assets are vested in a person so appointed.
[45/2004]
(2) An appointment under this section shall be in writing or evidenced in writing.
[UK Trustee 2000, s. 16]
[45/2004]
41H.
—(1) Subject to the provisions of this Part, the trustees of a trust may appoint a person to act as a custodian in relation to such of the assets of the trust as the trustees may determine.
[45/2004]
(2) For the purposes of this Act, a person is a custodian in relation to assets if he undertakes the safe custody of the assets or of any document or record concerning the assets.
[45/2004]
(3) An appointment under this section shall be in writing or evidenced in writing.
[UK Trustee 2000, s. 17]
[45/2004]
41I.
—(1) If trustees retain or invest in securities payable to bearer, they shall appoint a person to act as a custodian of the securities.
[45/2004]
(2) Subsection (1) shall not apply if the trust instrument or any written law contains any provision which (however expressed) permits the trustees to retain or invest in securities payable to bearer without appointing a person to act as a custodian.
[45/2004]
(3) An appointment under this section shall be in writing or evidenced in writing.
[45/2004]
(4) This section shall not impose a duty on a sole trustee if that trustee is a trust corporation.
[UK Trustee 2000, s. 18]
[45/2004]
41J.
—(1) A person may not be appointed under section 41G, 41H or 41I as a nominee or custodian or continue to act as such nominee or custodian unless —
(a)
the person carries on a business which consists of or includes acting as a nominee or custodian; or
(b)
the person is a body corporate which is controlled by the trustees.
[45/2004]
(2) For the purposes of subsection (1)(b), a body corporate is controlled by the trustees if the trustees have power to secure —
(a)
by means of the holding of shares or the possession of voting power in or in relation to that or any other body corporate; or
(b)
by virtue of any powers conferred by the articles of association or other document regulating that or any other body corporate,
that the affairs of the first-mentioned body corporate are conducted in accordance with the wishes of the trustees.
[45/2004]
(3) The trustees of a charitable trust which is registered under the Charities Act (Cap. 37) shall act in accordance with any guidance given by the Commissioner of Charities concerning the selection of a person for appointment as a nominee or custodian under section 41G, 41H or 41I.
[45/2004]
(4) Subject to subsections (1) and (3), the persons whom the trustees may, under section 41G, 41H or 41I, appoint as a nominee or custodian include —
(a)
one of their number, if that one is a trust corporation; or
(b)
2 or more of their number, if they are to act as joint nominees or joint custodians.
[45/2004]
(5) The trustees may, under section 41G, appoint a person to act as their nominee even though he is also —
(a)
appointed to act as their custodian (whether under section 41H or 41I or any other power); or
(b)
authorised to exercise functions as their agent (whether under section 41B or any other power).
[45/2004]
(6) The trustees may, under section 41H or 41I, appoint a person to act as their custodian even though he is also —
(a)
appointed to act as their nominee (whether under section 41G or any other power); or
(b)
authorised to exercise functions as their agent (whether under section 41B or any other power).
[[UK Trustee 2000, s. 19] ]
[45/2004]
41K.
—(1) Subject to subsection (2) and sections 41R, 41S and 41T, the trustees may, under section 41G, 41H or 41I, appoint a person to act as a nominee or custodian on such terms as to remuneration and other matters as they may determine.
[45/2004]
(2) The trustees may not, under section 41G, 41H or 41I, appoint a person to act as a nominee or custodian on any of the terms set out in subsection (3) unless it is reasonably necessary for them to do so.
[45/2004]
(3) The terms for the purposes of subsection (2) are —
(a)
a term permitting the nominee or custodian to appoint a substitute;
(b)
a term restricting the liability of the nominee or custodian or his substitute to the trustees or to any beneficiary; and
(c)
a term permitting the nominee or custodian to act in circumstances capable of giving rise to a conflict of interest.
[[UK Trustee 2000, s. 20] ]
[45/2004]
Review of and liability for agents, nominees and custodians, etc.
Application of sections 41M and 41N
41L.
—(1) Sections 41M and 41N shall apply in a case where trustees have, under section 41B, 41G, 41H or 41I —
(a)
authorised a person to exercise functions as their agent; or
(b)
appointed a person to act as a nominee or custodian.
[45/2004]
(2) Subject to subsection (3), sections 41M and 41N shall also apply in a case where trustees have, under any power conferred on them by the trust instrument or by any written law —
(a)
authorised a person to exercise functions as their agent; or
(b)
appointed a person to act as a nominee or custodian.
[45/2004]
(3) If the application of section 41M or 41N in a case is inconsistent with the terms of the trust instrument or any written law, that section shall not apply to that case.
[UK Trustee 2000, s. 21]
[45/2004]
41M.
—(1) While the agent, nominee or custodian continues to act for the trust, it shall be the duty of the trustees —
(a)
to keep under review the arrangements under which the agent, nominee or custodian acts and the manner in which such arrangements are being put into effect;
(b)
if circumstances make it appropriate to do so, to consider whether there is a need to exercise any power of intervention that they have; and
(c)
if they consider that there is a need to do so, to exercise the power of intervention.
[45/2004]
(2) If the agent has been authorised to exercise asset management functions, the duty under subsection (1) shall include, in particular —
(a)
a duty to consider whether there is any need to revise or replace the policy statement made for the purposes of section 41F;
(b)
if the trustees consider that there is a need to revise or replace the policy statement, a duty to do so; and
(c)
a duty to assess whether the policy statement (as it has effect for the time being) is being complied with.
[45/2004]
(3) Section 41F(3) and (4) shall apply to the revision or replacement of a policy statement under this section as they apply to the making of a policy statement under that section.
[45/2004]
(4) In this section, “power of intervention” includes —
(a)
a power to give directions to the agent, nominee or custodian; and
(b)
a power to revoke the authorisation or appointment of the agent, nominee or custodian.
[[UK Trustee 2000, s. 22] ]
[45/2004]
41N.
—(1) A trustee shall not be liable for any act or default of the agent, nominee or custodian unless he fails to comply with the statutory duty of care applicable to him under paragraph 3 of the First Schedule when —
(a)
entering into the arrangements under which the person acts as agent, nominee or custodian; or
(b)
carrying out his duties under section 41M.
[45/2004]
(2) If a trustee has agreed to a term under which the agent, nominee or custodian is permitted to appoint a substitute, the trustee shall not be liable for any act or default of the substitute unless he has failed to comply with the statutory duty of care applicable to him under paragraph 3 of the First Schedule —
(a)
when agreeing to that term; or
(b)
when carrying out his duties under section 41M in so far as they relate to the use of the substitute.
[[UK Trustee 2000, s. 23] ]
[45/2004]
Supplementary
41O. A failure by the trustees to act within the limits of the powers conferred by this Part —
(a)
in authorising a person to exercise a function of theirs as an agent; or
(b)
in appointing a person to act as a nominee or custodian,
shall not invalidate the authorisation or appointment.
[UK Trustee 2000, s. 24]
[45/2004]