	Home \| Databases \| WorldLII \| Search \| Feedback Consolidated Acts of Samoa 1996

Home | Databases | WorldLII | Search | Feedback

Consolidated Acts of Samoa 1996

You are here: PacLII >> Databases >> Consolidated Acts of Samoa 1996 >> Trustee Act 1975

Database Search | Name Search | Noteup | Download | Help

Trustee Act 1975

LAWS OF WESTERN SAMOA

TRUSTEE

ANALYSIS

Title

1. Short title

PART I
PRELIMINARY

2. Interpretation and application
3. Act to bind Government

PART II
INVESTMENTS

4. Authorised investments
5. Loans and investments by trustees not chargeable as breaches of trust
6. Liability for loss by reason of improper investment
7. Powers in relation to company securities

PART III
GENERAL POWERS AND
INDEMNITIES OF TRUSTEES

General Powers

8. Powers to sell, postpone, lease, etc.
9. Miscellaneous powers in respect of property
10. Power of trustee for sale to sell by auction, etc.
11. Power to sell property on terms
12. Power of trustees to give receipts
13. Power to compound liabilities
14. Power to raise money by sale or mortgage
15. Protection to purchasers and mortgagees dealing with trustees
16. Devolution of powers or trusts
17. Power to insure
18. Application of insurance money where policy kept up under any trust, power, or obligation
19. Valuations
20. Power to employ agents
21. Power to delegate trusts
22. Power to carry on business
23. Power to convert business into a company

Indemnities

24. Protection against creditors by means of advertisements
25. Implied indemnity of trustees
26. Protection of trustee in handing over chattels to life tenant

Maintenance, Advancement, and
Protective Trusts

27. Power to apply Income for maintenance, etc., and to accumulate surplus income during a minority
28. Power to apply capital for maintenance, etc.

PART IV
APPOINTMENT AND DISCHARGE OF TRUSTEES

29. Power of appointing new trustees
30. Evidence as to a vacancy in a trust
31. Retirement of trustee
32. Discharge of trustee with assistance of' Court or Registrar
33. Vesting of trust property in new or continuing trustees
34. Advisory trustees may be appointed to assist responsible trustee

PART V
POWERS OF THE COURT

Appointment of New Trustees

35. Power of Court to appoint new trustees

Vesting Orders

36. Vesting orders of property
37. Orders as to contingent rights of unborn persons
38. Vesting order consequential on order for sale or mortgage of land
39. Effect of vesting order
40. Power to appoint person to convey

Jurisdiction to Make Other Orders

41. Power of Court to authorise dealings with trust property and variations of trust
42. Power of Court to direct sale or lease
43. Right of trustee to apply to Court for directions
44. Persons entitled to apply to Court
45. Applications to Court to review acts and decisions of trustee
46. Powers of Court to give judgment in absence of a trustee
47. Power of Court to charge costs on trust estate
48. Commission
49. Power to relieve trustee from personal liability
50. Power to make beneficiary indemnify for breach of trust
51. Barring of claims
52. Distribution of shares of missing beneficiaries

Payment to Government

53 Payment by trustees to Government
54. Disposal of funds paid to Government
55. Orders in respect of funds paid to Government

PART VI
GENERAL PROVISIONS

56. Audit of trust estates
57. Fees and commission deemed a testamentary expense
58. Costs of inquiring regarding beneficiaries
59. Repeal and saving

-------------------------------------------------

THE TRUSTEE ACT 1975

1975, No. 11

An Act to consolidate and amend the law relating to trusts and trustees

[23 December, 1975]

1. Short title-This Act may be cited as the Trustee Act 1975.

As to periods of limitation in respect of trusts, see ss. 19 to 21 of the Limitation Act 1975 and s. 86 (2) of the Public Trust Office Act 1975.

See also the Public Trust Office Act 1975, generally, as to the powers and duties of the Public Trustee, and, in particular, s. 116 (1) (entry of Public Trustee in register of shareholders is not notice of a trust); s. 117 (registration of dealings by the Public Trustee with himself).

PART I
PRELIMINARY

2. Interpretation and application-(1) In this Act, unless the context otherwise requires,-

"Authorised investments" means investments authorised for the investment of money subject to the trust by the instrument, if any, creating the trust or by this Act or any other Act;

"Conveyance", as applied to any person, includes the execution by that person of every necessary or suitable assurance for conveying, transferring, assigning, appointing, surrendering, or otherwise disposing of land wherein he is entitled to a right or interest, either for his whole estate or for any less estate, together with the performance of all formalities required by law for the validity of the conveyance; and "to convey" has a corresponding meaning;

"Court" means the Supreme Court;

"Government securities" or "Western Samoa Government securities" means any securities issued by or under the authority of the Government by virtue of any Act, and secured upon the public revenues of Western Samoa;

"Person" includes a corporation sole, and also a body of persons, whether corporate or unincorporate;

"Personal representative" means the executor, original or by representation, or an administrator for the time being of a deceased person;

"Property" includes real and personal property, and any estate, share, and interest in any property, real or personal, and any debt, and any thing in action, and any other right or interest whether in possession or not;

"Registrar" means the Registrar of the Supreme Court and includes a Deputy Registrar in any case where the Deputy may lawfully act for and on behalf of the Registrar;

"Right" includes an estate or interest;

"Securities" includes stock, funds, and shares;

"Stock" includes Government securities, and shares;

"Transfer", in relation to stock or securities includes the performance and execution of every deed, power of attorney, act, and anything on the part of the transferor to effect and complete the title in the transferee;

"Trust" extends to implied and constructive trusts and to cases where the trustee has a beneficial interest in the trust property, and to the duties incidental to the office of a personal representative; and "trustee" has a corresponding meaning and includes the Public Trustee;

"Trust for sale", in relation to land, means an immediate binding trust for sale, whether or not exercisable at the request or with the consent of any person, and with or without power at discretion to postpone the sale; and "trustee for sale" means the person (including a personal representative) holding land on trust for sale.

(2) This Act, except where otherwise expressly provided, applies to trusts (as hereinbefore defined) constituted or created either before or after the commencement of this Act.

(3) The powers conferred by or under this Act on a trustee are in addition to the powers given by the instrument, if any, creating the trust; but the powers so conferred, unless otherwise stated, apply if and so far only as a contrary intention is not expressed in the instrument, if any, creating the trust, and have effect subject to the terms of that instrument.

(4) This Act does not affect the legality or validity of anything done before the commencement of this Act, except as otherwise in this Act expressly provided.

3. Act to bind Government-This Act shall bind the Government.

PART II
INVESTMENTS

4. Authorised investments-(1) A trustee may invest any trust funds in his hands, whether at the time in a state of investment or not, in any investments authorised by the instrument (if any) creating the trust for the investment of money subject to the trust, or in manner following, that is to say:

(a) In any Western Samoa Government securities, or in any of the stock, funds, or other securities of a Commonwealth Government;

(b) On real securities in Western Samoa to which subsection (3) of this section applies;

(d) In any securities authorised for the investment of money subject to a trust by an Order of the Head of State, acting on the advice of Cabinet.

(2) Any such investments may be varied from time to time.

(3) In this section the term "real security" means a first mortgage of an estate in freehold and a first sub-mortgage of such a first mortgage.

See the notes to ss. 53 and 54.

As to stock issued under the Financial Powers Act 1964, see s. 13 of that Act.

As to the investment of funds held by the Handicrafts Industry Development Corporation, see s. 25 of the Handicrafts Industry Act 1965.

5. Loans and investments by trustees not chargeable as breaches of trust-A trustee lending money on the security of any property on which he can properly lend shall not be chargeable with breach of trust by reason only of the proportion borne by the amount of the loan to the value of the property at the time when the loan was made, if it appears to the Court-

(a) That in making the loan the trustee was acting upon a certificate or report as to the value of the property made by a person whom he reasonably believed to be competent to value the property;

(b) That the amount of the loan does not exceed 70 percent of the value of the property as stated in the certificate or report.

6. Liability for loss by reason of improper investment-Where a trustee improperly advances trust money on a mortgage security which would at the time of the investment be a proper investment in all respects for a smaller sum than is actually advanced thereon, the security shall be deemed an authorised investment for the smaller sum, and the trustee shall only be liable to make good the sum advanced in excess thereof with interest.

7. Powers in relation to company securities-(1) Where any securities of a company are subject to a trust, the trustee may concur in any scheme or arrangement-

(a) For the reconstruction of the company; or

(b) For the sale of all or any part of the property and undertaking of the company to another company; or

(d) For the release, modification, or variation of any rights, privileges, or liabilities attached to the securities or any of them-

in like manner as if he were entitled to the securities beneficially, with power to accept any securities of any denomination or description of the reconstructed or purchasing or new company instead of or in exchange for all or any of the first-mentioned securities; and the trustee shall not be responsible for any loss occasioned by any act or thing so done in good faith, and may retain any securities so accepted as aforesaid for any period for which he could have properly retained the original securities.

(2) A trustee may apply capital money subject to a trust in payment of the calls on any shares subject to the same trust.

PART III
GENERAL POWERS AND INDEMNITIES OF TRUSTEES

General Powers

See also the following enactments:

Administration Act 1975, s. 17 (2) (trustee's power of sale on intestacy, notwithstanding that he no longer holds as administrator).

Charitable Trusts Act 1965, s. 22 (further powers in respect of property).

Chattels Transfer Act 1975, ss. 22 and 23 (instrument subject to declaration of trust, and possession, etc., of chattels comprised in or affected by such instrument, or in bankruptcy).

Magistrates' Courts Act 1969, s. 41 (suing and being sued); s. 42 joining beneficiaries).

Public Trust Office Act 1975, s. 104 (obligation to notify Public Trustee of property belonging to estate he administers); s 105 (handing over of property to Public Trustee).

Youth, Sports and Cultural Affairs Act 1976, s. 19 (donations to Council).

8. Powers to sell, postpone, lease, etc.-(1) Subject to the provisions of this section, every trustee may exercise the following powers in respect of any property for the time being vested in him:

(a) Sell the property;

(b) Postpone the sale, calling in, and conversion of the property:

Provided that nothing in this paragraph shall permit a trustee to postpone the sale, calling in, or conversion of any property of a wasting or speculative nature for longer than is reasonably necessary to permit its prudent realisation;

(c) Let or sublet the property at a reasonable rent for any term not exceeding one year or from year to year, or for a weekly, monthly, or other like tenancy, or at will;

(d) Grant a lease or sublease of the property for any term not exceeding 21 years to take effect in possession within one year next after the date of the grant of the lease or sublease at a reasonable rent;

(e) At any time during the currency of a lease of the property, reduce the rent or otherwise vary or modify the terms thereof.

(2) Where there is a power (statutory or otherwise) to postpone the sale of any land or authorised investment that a trustee has a duty to sell by reason only of a trust or direction for sale, then (subject to any express direction to the contrary in the instrument, if any, creating the trust) the trustee shall not be liable in any way merely for postponing the sale, in the exercise of his discretion, for an indefinite and unlimited period, whether or not that period exceeds the period during which the trust or direction for sale remains valid; nor shall a purchaser of the land or authorised investment be concerned in any case with any directions respecting the postponement of a sale.

9. Miscellaneous powers in respect of property-(1) Every trustee may exercise the following powers in respect of any property for the time being vested in him:

(a) Expend money subject to the same trusts for the repair, maintenance, upkeep, or renovation of the property, whether or not the work is necessary for the purpose of the salvage of the property; and (subject to the rules of law applicable in such cases and to any direction of the Court to the contrary) apportion the cost of the work between capital and income or otherwise among the persons entitled thereto in such manner as he considers equitable, with power, in any case where the whole or part of the cost of the work is charged to capital, to recoup capital from subsequent income if such a course would be equitable having regard to all the circumstances of the case;

(b) Expend money subject to the same trusts in the improvement or development of the property;

(c) Where the property is land and the land may be sold or let or leased or otherwise disposed of under any power or trust vested in the trustee, subdivide the land into sections and do all such things, and pay all such money, as he thinks necessary or as are required by any law relating to subdivisions;

(d) Pay taxes, assessments, insurance premiums, and other outgoings in respect of the property out of money subject to the same trusts;

(e) As mortgagor or mortgagee, agree to the renewal, extension, or variation of the mortgage for such period and on such terms and conditions as he thinks fit:

Provided that nothing in this paragraph shall authorise any trustee to advance any money on the security of any mortgage that would not be an authorised investment in respect of the amount advanced;

(f) Make such inquiries, by way of advertisement or otherwise, as he deems necessary for the purpose of ascertaining the next-of-kin or beneficiaries entitled to the property, and charge the cost of the inquiries and advertisements against the property;

(g) Where the property includes a life policy and there is no money or insufficient money available for the payment of premiums on the policy, surrender the policy for money, or accept instead of the policy a fully paid up policy, or vary the terms of the policy in such manner as the trustee thinks fit;

(h)Apply any part of the property in or towards satisfaction of any legacy payable thereout or any share thereof (whether settled, contingent, or absolute) to which any person is entitled, and for that purpose value the whole or any part of the property:

Provided that effectual notice thereof shall be given to all persons of full age who are interested, and any such person may within 2 calendar months after receipt of the notice apply to the Court to vary the same;

(i) Where provision is made in any instrument creating a trust for payment of an annuity or other periodical payment and notwithstanding that the annuity or payment may by the instrument be charged upon the trust property or upon any part thereof, set aside out of property available for payment of the annuity and invest a sum sufficient in the opinion of the trustee at the time of setting aside to provide out of the income thereof the amount required to pay the annuity or periodical payment, and, the residue of the trust property and the income thereof shall thereafter no longer be liable for the annuity, and may be distributed forthwith in accordance with the trusts declared of and concerning the same;

(j) Do or omit all acts and things, and execute all instruments necessary to carry into effect the powers and authorities given by this Act or by or under the instrument creating the trust.

(2) Where in the administration of any property employed in the production of income or from which income is derived a trustee considers that in the interests of the persons entitled or who may become entitled to the capital of the property it is equitable to set up a depreciation or replacement fund in respect of the property or in respect of any asset comprised therein, then, notwithstanding any rule of law to the contrary, it shall be lawful for but not obligatory upon him to do so, and to credit from time to time to the fund and accumulate by way of compound interest such part of the income so produced or derived as he considers equitable and also the resulting income therefrom. In any such case the fund shall follow the destination of the capital of the property and shall be subject to all the trusts, powers, and provisions applicable thereto; with further power to the trustee to apply as he thinks fit the fund and accumulations of income in or towards the replacement, repair, maintenance, upkeep, or renovation of the property or asset, or in or towards the acquisition by purchase or otherwise of property or assets of a like nature or which otherwise may advantageously be employed in conjunction with the property in producing or deriving the income as aforesaid.

As to the powers in respect of property of a Board under the Charitable Trusts Act 1965, see s. 22 of that Act.

10. Power of trustee for sale to sell by auction, etc.-(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 encumbrances or not, and either together or in lots, by public auction or by public tender or by private contract, subject to any such conditions respecting title or evidence of title or other matters 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, and also includes a trust or power to sell or dispose of any buildings, fixtures, timber, or other things affixed to the soil apart and separately from the land itself.

11. Power to sell property on terms-(1) A sale of property by a trustee in exercise of any power vested in him in that behalf by the instrument creating the trust or by or under this Act or any other enactment may be on terms of deferred payment or otherwise.

(2) The terms of deferred payment shall be such as a person acting with prudence would, if the property were his own, have accepted in the circumstances in order to sell the property to the best advantage, and, subject thereto, may provide for the payment of the purchase money or any part thereof under an agreement for sale or for the conveyance of the property sold and the securing of the unpaid purchase money by mortgage of the property sold.

(3) For the purposes of any consent or direction required by the instrument, if any, creating the trust or by statute, a trustee selling property on terms of deferred payment shall not be deemed to be lending money or investing trust funds.

12. Power of trustees to give receipts-The receipt in writing of a trustee for any money, securities, 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 shall effectually exonerate that person from seeing to the application or being answerable for any loss or misapplication thereof.

13. Power to compound liabilities-A trustee may, if and as he thinks fit,-

(a) Accept any property, real or personal, before the time at which it is made transferable or payable; or

(b) Sever and apportion any blended trust funds or property; or

(d) Accept any composition or any security, real or personal, for any debt or for any property, real or personal, claimed; or

(e) Allow any time for payment of any debt; or

(f) Surrender any leasehold property subject to onerous covenants of such a nature that it would not be to the advantage of the person beneficially interested to retain the property; or

(g) Compromise, compound, abandon, submit to arbitration, or otherwise settle any debt, account, claim, or thing whatever relating to the trust or to the trust property,-

and for any of those purposes may enter into, give, execute, and do such agreements, instruments of composition or arrangement, releases, and other things as to him seem expedient, without being responsible for any loss occasioned by any act or thing so done by him in good faith.

14. Power to raise money by sale or mortgage-Where a trustee is authorised by the instrument, if any, creating the trust or by this Act or any other Act or by law to pay or apply capital money subject to the trust for any purpose or in any manner, he 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.

15. Protection to purchasers and mortgagees dealing with trustees-No purchaser or mortgagee, paying or advancing money on a sale or mortgage purporting to be made under any trust or power (statutory or otherwise) vested in a trustee, shall be concerned to see that the money is wanted, or that no more than is wanted is raised, or otherwise as to the application thereof.

16. Devolution of powers or trusts-(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 a new trustee, the personal 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 the trustees for the time being of the trust.

17. Power to insure-(1) A trustee may insure against loss or damage, whether by fire or earthquake or otherwise, any building or other insurable property to any amount, including the amount of any insurance already on foot, not exceeding the full insurable value of the building or property, or (with the consent of the person entitled to the income or of the Court) the full replacement value of the building or property; and may insure against any risk or liability against which it would be prudent for a person to insure if he were acting for himself; and may pay the premiums for the insurance out of the income of the building or property concerned or out of the income of any other property subject to the same trusts without obtaining the consent of any person who may be entitled wholly or partly to that income.

(2) The trustee may recover the costs of any premiums paid in respect of any such insurance from the life tenant or other person entitled to or in receipt of the rents and profits of the building or property concerned.

(3) Nothing in this section shall impose any obligation on a trustee to insure.

18. Application of insurance money where policy kept up under any trust, power, or obligation-(1) Money receivable by a trustee or any beneficiary under a policy of insurance against the loss of or damage to any property subject to a trust, whether by fire or otherwise, shall, where the policy has been kept up under any trust in that behalf or under any power, statutory or otherwise, or in performance of any covenant or of any obligation, statutory or otherwise, or by a tenant for life impeachable for waste, be capital for the purposes of the trust, except so far as it would be regarded as income under any rule of law.

(2) If any such money is receivable by any person other than the trustee 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 trustee of the trust.

(3) Any such money,-

(a) 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 the trust;

(b) 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) Any such money, or any part thereof, may also be applied by the trustee, in rebuilding, reinstating, replacing, or repairing the property lost or damaged but any such application by the trustee 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, or repairing the property lost or damaged, or the rights of any mortgagee, lessor, or lessee, whether under any statute or otherwise.

(6) This section applies to policies effected either before or after the commencement of this Act, but only to money received after the commencement thereof.

19. Valuations-A trustee 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 this Act or any other Act, from time to time ascertain and fix the value of any trust property, or of any property which he is authorised to purchase or otherwise acquire, in such manner as he thinks proper; and where the trustee is not personally qualified to ascertain the value of any property he shall consult a duly qualified person (whether employed by him or not) as to that value; but the trustee shall not be bound to accept any valuation made by any person whom the trustee may consult. Any valuation made by the trustee in good faith under this section shall be binding on all persons beneficially interested under the trust.

20. Power to employ agents-A trustee may, instead of acting personally, employ and pay an agent, whether a solicitor, accountant, bank, corporation, stockbroker, or other person, to transact any business or do any act required to be transacted or done in the execution of the trust or the administration of the trust property, including the receipt and payment of money, and the keeping and audit of trust accounts, and shall be entitled to be allowed and paid all charges and expenses so incurred, and shall not be responsible for the default of any such agent if employed in good faith.

21. Power to delegate trusts-(1) A trustee who for the time being is out of Western Samoa or is about to depart therefrom or who is or may be about to become, by reason of physical infirmity, temporarily incapable of performing all his duties as a trustee may, notwithstanding any rule of law or equity to the contrary, by power of attorney executed as a deed, delegate to any person the execution or exercise during his absence from Western Samoa or during his incapacity, as the case may be, of all or any trusts, powers, authorities, and discretions vested in him as such trustee, whether alone or jointly with any other person or persons:

Provided that a person being the only other co-trustee shall not be appointed to be an attorney under this subsection.

(2) The power of attorney shall not come into operation unless and until the donor is out of Western Samoa or is incapable of performing all his duties as a trustee, and shall be deemed to be revoked by his return or by his recovery of that capacity, as the case may be.

(3) A statutory declaration by the donee of a power of attorney relating to any trust or estate that the power has come into operation, or that in any transaction the donee is acting in the execution of the trust or the administration of the estate, shall in favour of a person dealing with the donee of the power be conclusive evidence of that fact.

22. Power to carry on business-(1) Subject to the provisions of any other Act, if at the time of his death any person (whether alone or in partnership) is engaged in carrying on a business, trade, or occupation, it shall be lawful for his trustee to continue to carry on the same in the same manner for any one or more of the following periods:

(a) Three years from the death of that person";

(b) Such period as may be necessary or desirable for the winding up of the business;

(2) In exercise of the powers conferred by this section or by the instrument creating the trust, a trustee may employ any part of the deceased's estate which is subject to the same trusts; and may from time to time increase or diminish the part of the estate so employed; and may purchase stock, plant, [and] chattels for the purposes of the business; and may employ such managers, agents, servants, clerks, workmen, and others as he thinks fit; and may at any time enter into a partnership agreement to take the place of any partnership agreement subsisting immediately before the death of the deceased or at any time thereafter.

(3) Application to the Court for leave to carry on a business may be made by the trustee or any person beneficially interested in the estate at any time, whether or not any previous authority to carry on the business has expired; and the Court may make such an order, or may order that the business be not carried on, or be carried on subject to conditions, or may make such other order as in the circumstances seems proper.

(4) Nothing in this section shall prejudice any other authority to do the acts thereby authorised to be done.

In subs. (2) the word "and" has been inserted pursuant to s. 3 (f) of the Reprint of Statutes Act 1972.

23. Power to convert business into a company-A trustee may at any time, at the expense of the trust property, convert or join in converting any business into a company limited by shares in such manner as he may think fit; and may, at the like expense, promote and assist in promoting a company for taking over the business; and may sell or transfer the business and the capital and assets and goodwill thereof, or any part thereof, to the company, or to any company having for its objects the purchase of such a business, in consideration, in either case, wholly or in part of ordinary or preference shares wholly or partially paid up of any such company, or wholly or in part of debentures, debenture stock, or bonds of any such company, and as to the balance (if any) in cash payable immediately, or by any instalments with or without security.

Indemnities

24. Protection against creditors by means of advertisements-(1) Where a trustee has given notice by advertisement published at least once in a newspaper circulating in Western Samoa requiring creditors to send to the trustee, within the time fixed in the notice, particulars of their claims against or in respect of the estate of a deceased person and warning them of the consequences of their failure to do so, then, at the expiration of that time or at any time thereafter the trustee may administer or transfer or distribute the property or any part thereof to which the notice relates to or among the persons entitled thereto having regard only to the claims, whether formal or not, of which the trustee then has notice; and he shall not, as respects the property so administered or transferred or distributed, be liable to any person of whose claim the trustee has not had notice at the time of the administration or transfer or distribution:

Provided that nothing in this section shall prejudice any right which the person may have to follow the property or any part thereof or any property representing the same into the hands of any person who may have received it.

(2) The time to be fixed as aforesaid by any such notice shall not be less than 3 months from the date on which the notice is given.

(3) Any advertisement published under this section may relate to more than one estate or trust property.

25. Implied indemnity of trustees-(1) A trustee shall be chargeable only for money and securities actually received by him, and shall be answerable and accountable only for his own acts, receipts, neglects, or defaults, and not for those of any other trustee, nor for any bank, or other person with whom any trust money or securities may be deposited, nor for the insufficiency or deficiency of any securities, nor for any other loss, unless the same happens through his own wilful default.

(2) A trustee may reimburse himself or pay or discharge out of the trust property all expenses reasonably incurred in or about the execution of the trusts or powers; but, except as provided in this Act or any other Act or as agreed by the persons beneficially interested under the trust, no trustee shall be allowed the costs of any professional services performed by him in the execution of the trusts or powers unless the contrary is expressly declared by the instrument creating the trust:

Provided that the Court may on the application of the trustee allow such costs as in the circumstances seem just.

26. Protection of trustee in handing over chattels to life tenant-(1) Where any chattels are, under the provisions of any will, bequeathed to any person for life or for any limited interest, the trustee may cause an inventory to be made of the chattels, which inventory shall be signed by that person and retained by the trustee, and a copy of the inventory shall be delivered to that person.

(2) The trustee may thereupon deliver the chattels to that person on such terms and conditions as the trustee thinks fit, and shall not thereafter be bound to see to the repair or insurance of the chattels, and shall not be subject to any liability whatsoever by reason of the loss or destruction of the chattels or the neglect of that person to effect any such repairs or insurance.

Maintenance, Advancement, and Protective Trusts

27. Power to apply income for maintenance, etc., and to accumulate surplus income during a minority-(1) Where any property is held by a trustee in trust for any person for any interest whatsoever, whether vested or contingent, then, subject to any prior interests or charges affecting that property,-

(a) During the infancy of any such person, if his interest so long continues, the trustee may, at his sole discretion, pay to his parent or guardian, if any, or otherwise apply for or towards his maintenance or education (including past maintenance or education) or his advancement or benefit, the whole or such part, if any, of the income of that property as may, in all the circumstances, be reasonable, whether or not there is-

(i) Any other fund applicable to the same purpose; or

(ii) Any person bound by law to provide for his maintenance, education, advancement, or benefit; and

(b) If the person on attaining the age of 21 years has not a vested interest in that income, the trustee shall thenceforth pay the income of that property and of any accretion thereto under subsection (2) of this section to him until he either attains a vested interest therein or dies, or until failure of his interest:

Provided that, in deciding whether the whole or any part of the income of the property is during a minority to be paid or applied for the purposes aforesaid, the trustee shall have regard to the age of the infant and his requirements and generally to the circumstances of the case, and in particular to what other income, if any, is applicable for the same purposes; and where the trustee has notice that the income of more than one fund is applicable for those purposes, then, so far as practicable, unless the entire income of the funds is paid or applied as aforesaid or the Court otherwise directs, a proportionate part only of the income of each fund shall be so paid or applied.

(2) During the infancy of any such person, if his interest so long continues, the trustee shall accumulate all the residue of that income in the way of compound interest by investing the same and the resulting income thereof from time to time in authorised investments, and shall hold those accumulations as follows:

(a) If any such person-

(i) Attains the age of 21 years, or marries under that age, and his interest in the income during his infancy or until his marriage is a vested interest; or

(ii) On attaining the age of 21 years or on marriage under that age becomes entitled to the property from which the income arose-

the trustee shall hold the accumulations in trust for that person absolutely, but without prejudice to any provision with respect thereto contained in any settlement by him made under any statutory powers during his infancy, and so that the receipt of that person after marriage, and though still an infant, shall be a good discharge; and

(b) In any other case the trustee shall, notwithstanding that that person had a vested interest in the income, hold the accumulations as an accretion to the capital of the property from which the accumulations arose and as one fund with that capital for all purposes,-

but the trustee may, at any time during the infancy of that person if his interest so long continues, apply those accumulations, or any part thereof, as if they were income arising in the then current year.

(3) This section applies in the case of a contingent interest only if the limitation or trust carries the intermediate income of the property, but it applies to a future or contingent legacy by the parent of, or a person standing in the place of a parent to, the legatee, if and for such period as, under the general law, the legacy carries interest for the maintenance of the legatee, and in any such case as last aforesaid the rate of interest shall (if the income available is sufficient and subject to any rules of Court to the contrary) be 4 percent per annum.

(4) This section applies to a vested annuity in like manner as if the annuity were the income of property held by a trustee in trust to pay the income thereof to the annuitant for the same period for which the annuity is payable, save that in any case accumulation made during the infancy of the annuitant shall be held in trust for the annuitant or his personal representatives absolutely.

28. Power to apply capital for maintenance, etc. -A trustee may at any time or times pay or apply any capital money or other capital asset subject to a trust, for the maintenance or education (including past maintenance or education), or the advancement or benefit, in such manner as he may in his absolute discretion think fit, of any person entitled to the capital of the trust property or of any share thereof, whether absolutely or contingently on his attaining any specified age or on the occurrence of any other event, or subject to a gift over on his death under any specified age or on the occurrence of any other event, and whether in possession or in remainder or reversion, and any such payment or application may be made notwithstanding that the interest of that person is liable to be defeated by the exercise of a power of appointment or revocation, or to be diminished by the increase of the class to which he belongs:

Provided that-

(a) The money or asset so paid or applied for the maintenance, education, advancement, or benefit of any person shall not exceed altogether half of the presumptive or vested share or interest of that person in the trust property where the value of that share or interest exceeds $4,000, and in any other case shall not exceed altogether $2,000 in amount or value; and

(b) If that person is or becomes absolutely and indefeasibly entitled to a share in the trust property the money or asset so paid or applied shall be brought into account as part of that share; and

(c) No such payment or application shall be made so as to prejudice any person entitled to any prior life or other interest, whether vested or contingent, in the money or asset paid or applied unless that person is in existence and of full age and consents in writing to the payment or application, or unless the Court, on the application of the trustee, so orders.

PART IV
APPOINTMENT AND DISCHARGE OF TRUSTEES

See also the following enactments.

Administration Act 1975, s. 8 (2) (devolution of trusteeship where executor appointed trustee by will has not taken up executorship); s. 10 (Registrar's duty to notify Public Trustee on filing of applications for administration).

Charitable Trusts Act 1965 (incorporation of trustees of a charitable trust as a Board).

Industrial and Provident Societies Act 1968, s. 19 (transfer of assets on disability of society trustee).

Public Trust Office Act 1975, s. 70 (certificate by Public Trustee as to his legal status).

29. Power of appointing new trustees-(1) Where a trustee (whether original or substituted, and whether appointed by the Court or otherwise)-

(a) Is dead; or

(b) Remains out of Western Samoa for the space of 12 months during which no delegation of any trusts, powers, or discretions vested in him as such trustee remains in operation under this Act; or

(d) Refuses to act therein; or

(e) Is unfit to act therein; or

(f) Is incapable of so acting,-

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 trustees for the time being, or the personal representatives of the last surviving or continuing trustee, may by deed 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 first-mentioned trustee.

(2) On the appointment of a trustee or trustees for the whole or any part of trust property-

(a) The number of trustees may be increased; and

(b) 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.

(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 he were dead, and the provisions of this section shall apply accordingly.

(4) The power of appointment given by subsection (1) of this section or any similar 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 that surviving or continuing trustee who have proved the will of their testator or by the administrators for the time being of that trustee without the concurrence of any executor who has renounced or has not proved.

(5) Where a sole trustee 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 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 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.

(6) 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 discretion, and may in all respects act as if he had been originally appointed a trustee by the instrument, if any, creating the trust.

(7) The provisions of this section relative to a trustee who is dead include the case of a person nominated trustee whether sole or otherwise in a will, and who dies 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.

(8) The provisions of this section relative 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.

30. Evidence as to a vacancy in a trust-(1) A statement contained in any instrument coming into operation after the commencement of this Act by which a new trustee is appointed for any purpose connected with land as to how a vacancy in the office of trustee occurred shall, in favour of a purchaser, of the land, be conclusive evidence of the matter stated.

(2) In favour of any 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.

31. Retirement of trustee-(1) Where there are 2 or more trustees-

(a) If one of them 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 of the trust property in the co-trustees alone-

then, subject to the provisions of subsection (3) of this section, 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 and done.

(3) Except where only one trustee was originally appointed, a trustee shall not be discharged under subsection (1) of this section unless there will be at least 2 individuals to act as trustees to perform the trust.

32. Discharge of trustee with assistance of Court or Registrar-(1) Where any trustee is desirous of being discharged from his trust he shall be entitled to retire therefrom on passing his accounts before the Registrar, and giving notice of his retirement to his co-trustees (if any), and to such other person (if any) as is empowered to appoint new trustees.

(2) If such co-trustees, or such other person as aforesaid empowered to appoint new trustees, or any of them, refuse or neglect to appoint a new trustee or to consent to such appointment in place of the trustee so retiring, or if the retiring trustee is the sole trustee having power to appoint a new trustee, but the exercise of that power is impracticable or difficult without the assistance of the Court, it shall be lawful for the retiring trustee to apply to the Court for the appointment of a new trustee in his place.

(3) The Court may, upon any such application, make an order appointing some proper person as trustee in place of the trustee so desirous of being discharged from his trust, and direct any accounts and inquiries to be made, and make an order discharging the trustee from the trust and from all liability in respect thereof, and may make such order as to costs or otherwise as it thinks fit; and the person who upon the making of the order becomes trustee shall have the same rights and powers as he would have had if appointed by judgment in an action duly instituted.

(4) If on any such application the Court thinks proper to appoint the Public Trustee to be trustee instead of the retiring trustee, it shall be the duty of the Public Trustee to undertake the trust.

33. Vesting of trust property in new or continuing trustees-(1) Where by a deed a new trustee is appointed to perform any trust, the deed, subject to any provision to the contrary therein contained, shall operate, without any conveyance or assignment, to vest in those persons as joint tenants and for the purposes of the trust the estate or interest or right that is subject to the trust.

(2) Where by a deed a retiring trustee is discharged under the statutory power without a new trustee being appointed, the deed, subject to any provision to the contrary therein contained, 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 or interest or right that is subject to the trust.

(3) An express vesting declaration, whether made before or after the commencement of this Act, shall, notwithstanding that the estate or 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) of this section, as the case may require, such estates, interests, and rights as are capable of being and ought to be vested in those persons.

(4) Any such deed shall be registrable in any registry wherein any property subject to the trust is registered.

34. Advisory trustees may be appointed to assist responsible trustee-(1) In the administration of any trust property any trustee may act, to the extent hereinafter provided, with an advisory trustee.

(2) An advisory trustee may be appointed in respect of all or any part of the trust property-

(a) By the testator, settlor, or other creator of the trust, in the instrument creating the trust; or

(b) By order of the Court made on the application of any beneficiary or trustee or of any person on whose application the Court would have power to appoint a new trustee; or

(3) Where a trustee acts with an advisory trustee the trust property shall be vested in the first-mentioned trustee (hereafter in this section referred to as the responsible trustee), who shall have the sole management and administration of the estate and its trusts as fully and effectually as if he were the sole trustee:

Provided that-

(a) The responsible trustee may consult the advisory trustee on any matter relating to the trusts or the estate;

(b) The advisory trustee may advise the responsible trustee on any matter relating to the trusts or the estate, but shall not be a trustee in respect of the trust;

(c) Where any advice or direction is tendered or given by the advisory trustee, the responsible trustee may follow the same and act thereon, and shall not be liable for anything done or omitted by him by reason of his following that advice or direction;

(d) In any case where the responsible trustee is of opinion that such advice or direction conflicts with the trusts or any rule of law, or exposes him to any liability, or is otherwise objectionable, he may apply to the Court for directions in the matter, and the decision and order therein shall be final and shall bind the responsible trustee and the advisory trustee, and the Court may make such order as to costs as appears proper:

Provided that nothing in this paragraph shall make it necessary for the responsible trustee to apply to the Court for any such directions;

(e) Where advisory trustees are not unanimous, and tender to the responsible trustee conflicting advice or directions, the responsible trustee may similarly apply to the Court for directions.

(4) No person dealing with the responsible trustee in relation to any trust property shall be concerned to inquire as to the concurrence or otherwise of the advisory trustee, or be affected by notice of the fact that the advisory trustee has not concurred.

(5) Subject to the provisions of the instrument (if any) creating the trust and to any order made by the Court, in any case where remuneration is payable to the trustee of any trust property, remuneration or commission may be paid to both the responsible trustee and the advisory trustee.

(6) Nothing shall prevent the Public Trustee from accepting appointment or acting as trustee in respect of any trust property in respect of which an advisory trustee is appointed under this section.

PART V
POWERS OF THE COURT

Appointment of New Trustees

35. Power of Court to appoint new trustees-(1) The Court may, whenever it is expedient to appoint a new trustee or new trustees, and it is found inexpedient, difficult, or impracticable so to do without the assistance of the Court, make an order appointing a new trustee or new trustees, either in substitution for or in addition to any existing trustee or trustees or although there is no existing trustee.

(2) In particular and without prejudice to the generality of the foregoing provision, the Court may make an order appointing a new trustee in substitution for a trustee who-

(a) Has been held by the Court to have misconducted himself in the administration of the trust; or

(b) Is convicted of any offence involving dishonesty; or

(d) Is a bankrupt.

(3) An order under this section, and any consequential vesting order or conveyance, shall not operate further or otherwise as a discharge to any former or continuing trustee than an appointment of new trustees under any power for that purpose contained in any instrument would have operated.

(4) Nothing in this section shall give power to appoint an executor or administrator.

(5) Every trustee appointed by the Court shall, as well before as after the trust property becomes by law, or by assurance, or otherwise, vested in him, have the same powers, authorities, and discretions, and may in all respects act is if he had been originally appointed a trustee by the instrument, if any, creating the trust.

Vesting Orders

36. Vesting orders of property-(1) Subject to the provisions of subsections (2) and (3) of this section, in any of the following cases, namely-

(a) Where the Court appoints or has appointed a trustee, or where a trustee has been appointed out of Court under any statutory or express power;

(b) Where a trustee entitled to or possessed of any property, whether by way of mortgage or otherwise, either solely or jointly with any other person-

(i) Is under disability; or

(ii) Is out of the jurisdiction of the Court; or

(iii) Cannot be found:

(c) Where it is uncertain who was the survivor of 2 or more trustees jointly entitled to or possessed of any interest in property;

(d) Where it is uncertain whether the last trustee known to have been entitled to or possessed of any interest in property is alive or dead;

(e) Where there is no personal representative of a deceased trustee who was entitled to or possessed of any interest in property, or where it is uncertain who is the personal representative of a deceased trustee who was entitled to or possessed of any interest in property;

(f) Where a deceased person was entitled to or possessed of any interest in property and his personal representative is under disability;

(g) Where a trustee jointly or solely entitled to or possessed of any interest in property, or entitled to a contingent right therein, has been required, by or on behalf of a person entitled to require a conveyance of the property or interest or a release of the right, to convey the property or interest or to release the right, and has wilfully refused or neglected to convey the property or interest or release the right for 28 days after the date of the requirement;

(h) Where property or any interest therein is vested in a trustee whether by way of mortgage or otherwise, and it appears to the Court to be expedient-

the Court may make an order (in this Act called a vesting order) vesting the property or interest therein in any such person in any such manner and for any such estate or interest as the Court may direct, or releasing or disposing of the contingent right to such person as the Court may direct.

(2) Where any such order is consequential on the appointment of a trustee, the property or interest therein shall be vested for such estate as the Court may direct in the persons who on the appointment are the trustees.

(3) Where any such order relates to a trustee entitled or formerly entitled jointly with another person, and that trustee is under disability or out of the jurisdiction of the Court or cannot be found, the property, interest, or right shall be vested in the other person who remains entitled, either alone or with any other person that the Court may appoint.

37. Orders as to contingent rights of unborn persons-Where any interest in land is subject to a contingent right in an unborn person or class of unborn persons who, on coming into existence would, in respect thereof, become entitled to or possessed of that interest on any trust, the Court may make an order releasing the land or interest therein from the contingent right or may make an order vesting in any person the estate or interest to or of which the unborn person or class of unborn persons would, on coming into existence, be entitled or possessed in the land.

38. Vesting order consequential on order for sale or mortgage of land-Where the Court gives a judgment or makes an order directing the sale or mortgage of any land, every person who is entitled to or possessed of any interest in the land, or entitled to a contingent right therein, and is a party to the action or proceeding in which the judgment or order is given or made or is otherwise bound by the judgment or order, shall be deemed to be so entitled or possessed, as the case may be, as a trustee for the purposes of this Act, and the Court may, if it thinks expedient, make an order vesting the land or any part thereof for such estate or interest as the Court thinks fit in the purchaser or mortgagee or in any other person.

39. Effect of vesting order-A vesting order under any of the foregoing provisions shall, in the case of a vesting order consequential on the appointment of a trustee, have the same effect-

(a) As if the persons who before the appointment were the trustees, if any, had duly executed all proper conveyances of the land for such estate or interest as the Court directs; or

(b) If there is no such person or no such person of full age and full mental capacity, as if such person had existed and been of full age and full mental capacity and had duly executed all proper conveyances of the land for such estate or interest as the Court directs;

and shall in every other case have the same effect as if the trustee or other person or description or class of persons to whose rights or supposed rights the said provisions respectively relate had been an ascertained and existing person of full age and full mental capacity and had executed a conveyance or release to the effect intended by the order.

40. Power to appoint person to convey-In all cases where a vesting order can be made under any of the foregoing provisions, the Court may, if it is more convenient, appoint a person to convey the land or any interest therein or release the contingent right, and a conveyance, or release by that person in conformity with the order shall have the same effect as an order under the appropriate provision.

Jurisdiction to Make Other Orders

41. Power of Court to authorise dealings with trust property and variations of trust-(1) Subject to the provisions of subsection (3) of section 2 of this Act, where in the management or administration of any property vested in a trustee, any sale, lease, mortgage, surrender, release, or other disposition, or any purchase, investment, acquisition, retention, expenditure, or other transaction, is in the opinion of the Court expedient, but it is inexpedient or difficult or impracticable to effect the same without the assistance of the Court, or the same cannot be effected by reason of the absence of any power for that purpose vested in the trustee by the trust instrument, if any, or by law, the Court may by order confer upon the trustee, either generally or in any particular instance, the necessary power for the purpose, on such terms, and subject to such provisions and conditions (if any) as the Court may think fit, and may direct in what manner any money authorised to be expended, and the costs of any transaction, are to be paid or borne as between capital and income.

(2) Where it is desired to rearrange the trusts to which any property is subject, but the rearrangement cannot be effected because those who take or may take any beneficial interest under the trusts include unborn or unascertained or unknown persons or persons under a disability, the Court may approve the rearrangement on behalf of the unborn or unascertained or unknown per sons and the persons under a disability if the rearrangement is not to their detriment; and in determining whether any such rearrangement is to the detriment of any person the Court may have regard to all benefits which may accrue to him directly or indirectly in consequence of the rearrangement, including the welfare and honour of the family to which he belongs. Any rearrangement so made shall be binding on all persons on whose behalf it is approved by the Court.

(3) The Court may from time to time rescind or vary any order made under this section, or may make any new or further order:

Provided that no such rescission or variation of any order shall affect any act or thing done in reliance on the order before the person doing the act or thing became aware of the application to the Court to rescind or vary the order.

(4) An application to the Court under this section may be made by the trustees, or by any of them, or by any person beneficially interested under the trust.

42. Power of Court to direct sale or lease-(1) Notwithstanding anything to the contrary in the instrument (if any) creating the trust, and notwithstanding the wishes of any trustee or person beneficially interested, the Court may, in any proceedings in which all trustees and persons who are or may be beneficially interested are parties or are represented, direct a sale or lease of any property subject to the trust on such terms, and subject to such provisions and conditions (if any) as the Court may think fit.

(2) Nothing in this section shall restrict any other power of the Court.

43. Right of trustee to apply to Court for directions-(1) Any trustee may apply to the Court for directions concerning any property subject to a trust, or respecting the management or administration of any such property, or respecting the exercise of any power or discretion vested in the trustee.

(2) Every such application shall be served upon, and the hearing may be attended by, all persons interested in the application or such of them as the Court thinks expedient.

44. Persons entitled to apply to Court-(1) An order under this Act for the appointment of a new trustee or concerning any property subject to a trust may be made on the application of any person beneficially interested in the property, whether under disability or not, or on the application of any person duly appointed trustee thereof or intended to be so appointed.

(2) An order under this Act concerning any interest in any property subject to a mortgage may be made on the application of any person beneficially interested in the property, whether under disability or not, or of any person interested in the money secured by the mortgage.

45. Applications to Court to review acts and decisions of trustee-(1) Any person who is beneficially interested in any trust property, and who is aggrieved by any act or omission or decision of a trustee in the exercise of any power conferred by this Act, or who has reasonable grounds to anticipate any such act or omission or decision of a trustee by which he will be aggrieved, may apply to the Court to review the act or omission or decision or to give directions in respect of the anticipated act or omission or decision; and the Court may require the trustee to appear before it, and to substantiate and uphold the grounds of the act or omission or decision that is being reviewed, and may make such order in the premises as the circumstances of the case may require:

Provided that no such order shall-

(a) Disturb any distribution of the trust property made without breach of trust before the trustee became aware of the making of the application to the Court;

(b) Affect any right acquired by any person in good faith and for valuable consideration.

(2) Where any such application is made, the Court may,-

(a) If any question of fact is involved, direct how the question shall be determined;

(b) If the Court is being asked to make an order that may prejudicially affect the rights of any person who is not a party to the proceedings, direct that any such person shall be made a party to the proceedings.

46. Powers of Court to give judgment in absence of a trustee-Where in any proceedings the Court is satisfied that diligent search has been made for any person who, in the character of trustee, is made a defendant in any action, to serve him with a process of the Court, and that he cannot be found, the Court may hear and determine the proceedings and give judgment therein against that person in his character of a trustee as if he had been duly served, or had entered an appearance in the action, and had also appeared by his counsel and solicitor at the hearing, but without prejudice to any interest he may have in the matters in question in the proceedings in any other character.

47. Power of Court to charge costs on trust estate-The Court may order the costs and expenses of and incidental to any application for any order under this Act, or of and incidental to any such order, or any conveyance or assignment in pursuance thereof, to be raised and paid out of the property in respect whereof the same is made, or out of the income thereof, or to be borne and paid in such manner and by such persons as to the Court may seem just.

48. Commission-(1) The Court may, out of the property subject to any trust, allow to the trustee for the time being, in passing his accounts, any such commission or percentage, not exceeding 10 percent, for his pains and trouble as is just and reasonable.

(2) No such allowance shall be made to any trustee without a special order of the Court on the final passing of accounts, unless the Court otherwise orders.

(3) Where the Court allows a commission or percentage under this section in any case in which there are or have been 2 or more trustees, whether acting at the same time or at different times, the Court may, in its discretion, apportion the total amount allowed among the trustees in such manner as it thinks fit, and, in particular, may divide the amount in unequal shares or may make the allowance to one or more of the trustees to the exclusion of the other or others.

49. Power to relieve trustee from personal liability-If it appears to the Court that a trustee, whether appointed by the Court or otherwise, is or may be personally liable for any breach of trust, whether the transaction alleged to be a breach of trust occurred before or after the commencement of this Act, but has acted honestly and reasonably, and ought fairly to be excused for the breach of trust and for omitting to obtain the directions of the Court in the matter in which he committed the breach, then the Court may relieve him either wholly or partly from personal liability for the same.

50. Power to make beneficiary indemnify for breach of trust-(1) Where a trustee commits a breach of trust at the instigation or request or with the consent in writing of a beneficiary, the Court may, if it thinks fit, make such order as to the Court seems just for impounding all or any part of the interest of the beneficiary in the trust estate by way of indemnity to the trustee or persons claiming through him.

(2) This section applies to breaches of trust committed as well before as after the commencement of this Act.

51. Barring of claims-(1) Where a trustee desires to reject a claim that has been made, or that he has reason to believe may be made against-

(a) The estate or property that he is administering; or

(b) The trustee personally by reason of his being under any liability in respect of which he is entitled to reimburse himself out of the estate or property that he is administering for all expenses which he may incur in respect of the liability-

the trustee may serve upon the person by whom or on whose behalf the claim is made or expected a notice calling upon him, within a period of 3 months from the date of service of the notice to take legal proceedings to enforce the claim and also to prosecute the proceedings with all due diligence.

(2) At the expiration of that period the trustee may apply to the Court for an order under subsection (3) of this section, and shall serve a copy of the application on the person concerned.

(3) If on the hearing of that application that person does not satisfy the Court that he has commenced the proceedings and is prosecuting them with all due diligence, the Court may make an order-

(a) Extending the period, or barring the claim, or enabling the trust property to be dealt with without regard to the claim; and

(b) Imposing such conditions and giving such directions, including a direction as to the payment of the costs of or incidental to the application, as to the Court seems just.

(4) Any such notice may be given by delivering it to the person for whom it is intended or by sending it by post in a letter addressed to that person at his usual or last known place of abode or business. Where a notice is sent by post as aforesaid it shall be deemed to be served at the time at which the letter would have been delivered in the ordinary course of post.

(5) On an application by a trustee under this section, the persons beneficially entitled to the estate or property need not be made parties to the proceedings, and no order made by the Court on the application shall prejudice their right to contest the claim of the trustee to be entitled to indemnify himself out of the estate or property that he is administering if they have not been parties to the proceedings in which the order was made.

As to similar notices by the Public Trustee, see s. 96 of the Public Trust Office Act 1975.

52. Distribution of shares of missing beneficiaries -(1) Where any real or personal property is held by a trustee and the property or any part thereof cannot be distributed by reason of the fact that it is not known to the trustee whether any person or class of persons who is or may be entitled thereto is in existence or whether any such person or class of persons ever has been in existence or whether any person or any member of any class of persons is alive or dead or where any such person is, the trustee may publish such advertisements (whether in Western Samoa or elsewhere) as are appropriate in the circumstances calling upon every such person to send in his claim within a time to be specified in the advertisements, not being less than 2 months in any case from the date on which the advertisement is published. Where the trustee is in doubt as to what advertisements should be published under this subsection or what notices should be given under subsection (2) of this section, he may apply to the Court for directions in that regard.

(2) Upon proof by affidavit of the circumstances and of the inquiries that have been made and that such advertisements as aforesaid have been published and that no person to whom the order will relate has sent in any claim, the Court may authorise the trustee to distribute the property or part thereof, subject to such conditions as the Court may impose, as if every person to whom the order relates and every member of any class to which the order relates had died before a date or event specified in the order, whether or not any such person is known to have survived the date or event, and whether or not it is known whether any person or any member of any class has ever been in existence. Any such order may be made notwithstanding that there has not been strict compliance with any directions as to advertisements previously given by the Court.

(3) Any such order shall exonerate the trustee from any further liability in respect of the property or any part thereof distributed in accordance with the order:

Provided that nothing in this subsection shall prejudice any right which any person may have to follow the property or any part thereof or any property representing the same into the hands of the person who has received it.

(4) In making any order under this section no regard shall be had to any presumption which may arise by reason of any person not having been heard of for 7 years or more.

(5) Any such order may provide that the order shall not be acted on for such period as is specified in the order, and may provide that the effect of the order shall during that period be advertised in such manner and form as may be specified in the order, or that the order be served upon such person or persons as are specified therein; and in the event of the Court exercising the jurisdiction conferred by this subsection it may in the order direct that the same shall be of no effect in the event of any person specified therein instituting proceedings in Western Samoa to enforce his claim and serving the proceedings upon the trustee within such period as is specified in the order.

(6) Any order made under this section may direct how the costs of the order and of advertising under or for the purposes of the order shall be borne.

(7) Nothing in this section shall prejudice the right of the trustee (if he so desires) to distribute under any other law or statutory provision or prejudice the protection thereby afforded when he makes distribution pursuant to any such law or provision.

Payment to Government

53. Payment by trustees to Government-(1) Trustees, or the majority of trustees having in their hands or under their control money or securities belonging to a trust, may, on filing in the Court an affidavit describing the instrument creating the trust and giving particulars of the persons beneficially entitled under the trust according to the best of their knowledge and belief, and on serving a copy of the affidavit on the Financial Secretary, pay the money or transfer the securities (if they can legally be so transferred) to the Government in the matter of the particular trust, which shall be described in the affidavit by the names of the parties as accurately as may be for the purpose of distinguishing it. All money and securities so paid or transferred shall be administered in the Treasury. All such money and all money derived from securities which have been transferred to or vested in the Government under this section shall be credited by the Financial Secretary to a deposit account established under the Public Money Act 1964 to be dealt with as hereafter provided in this Act.

(2) The receipt of the Financial Secretary shall be a sufficient discharge to the trustees for the money or securities paid or transferred to the Government under this section.

(3) Where money or securities are vested in any persons as trustees, and the majority are desirous of paying or transferring the same to the Government as aforesaid, but the concurrence of the other or others cannot be obtained, the Court may order the payment or transfer to the Government to be made by the majority without the concurrence of the other or others.

(4) Where any such money or securities are deposited with any banker, or other depositary, the Court may order payment or delivery of the money or securities to the majority of the trustees for the purpose of payment or transfer to the Government.

(5) Every transfer, payment, and delivery made in pursuance of any such order shall be valid and take effect as if the same had been made on the authority or by the act of all the persons entitled to the money and securities so transferred, paid, or delivered.

(6) The Financial Secretary may at any time sell any securities held by the Government under this section.

As to money payable to the Government in trust for any purpose, see s. 46 (1) (c) of the Public Money Act 1964.

54. Disposal of funds paid to Government-(1) All money and securities for the time being held by the Government under the preceding section of this Act shall be so held to attend the order of the Court:

Provided that any such money or securities may be paid or transferred by the Financial Secretary to the person entitled thereto upon his establishing a claim thereto or may be paid or transferred to the person from whom they were received to be held by him as trustee if that person so requests:

Provided also that all costs and expenses reasonably incurred by the Government in connection with any such money or securities may be deducted out of the money or securities or out of any other money and securities which are for the time being held by the Government and are subject to the same trusts.

(2) Where any money or securities paid or transferred to any claimant under this section are afterwards claimed by any other person, the Government and the Financial Secretary shall not be responsible for the payment or transfer thereof, but that person shall have recourse against the claimant to whom the money was paid or the securities were transferred.

See the note to s. 53 above.

As to investment and payment of sums subject to s. 46 of the Public Money Act 1964, see s. 47 of that Act.

55 Orders in respect of funds paid to Government-Upon application made ex parte by such person or persons as are competent or necessary in that behalf, the Court may from time to time make such order as it thinks fit in respect of any money or securities for the time behind held by the Government under this Act, and for the payment, transfer, and administration thereof:

Provided that the Court may direct service of the application on such persons as it thinks fit.

PART VI
GENERAL PROVISIONS

56. Audit of trust estates-(1) Subject to the provisions of any regulations made under this Act, and unless the Court otherwise orders, the condition and accounts of any estate which is not being administered by the Public Trustee shall, on an application being made and notice thereof being given in the prescribed manner by or on behalf of any trustee or beneficiary in that estate, be investigated and audited by such solicitor or such member of the Western Samoa Society of Accountants as may be agreed on between the applicant trustee and his co-trustees and the Public Trustee, or between the applicant beneficiary and the trustees and the Public Trustee, as the case may be, or, in default of any such agreement, by a solicitor or a member of the Western Samoa Society of Accountants appointed by the Public Trustee:

Provided that-

(a) Except with the leave of the Court, such an investigation or audit shall not be required within 12 months after any such previous investigation or audit; and

(b) A beneficiary shall not be appointed under this section to make an investigation or audit; and

(c) The Public Trustee may require the applicant to deposit a sum of money covering the costs of the investigation and audit, as estimated by the Public Trustee, or to secure the same to the Public Trustee's satisfaction before proceeding with the application.

(2) The person making the investigation or audit (in this section called "the auditor") shall have a right of access to the books, accounts, and vouchers of the trustees, and to any securities and documents of title held by them on account of the estate, and may require from them such information and explanations as may be necessary for the performance of his duties.

(3) Upon the completion of the investigation and audit, the auditor shall forward to the applicant, and to every trustee, and to the Public Trustee, a copy of the accounts of the estate, together with a report thereon, and a certificate signed by him to the effect that the accounts correctly show the state of the affairs of the estate, and that he has had the securities of the trust fund investments (if any) produced to and verified by him, or (as the case may be) that such accounts are deficient in such respects as may be specified in that certificate.

(4) Every beneficiary shall, subject to the provisions of any regulations made under this section, be entitled at all reasonable times to inspect and take copies of the accounts, report, and certificate, and, at his own expense, to be furnished with copies thereof or extracts therefrom.

(5) The auditor may be removed by order of the Court; and if any auditor is removed, or resigns, or dies, or becomes bankrupt or incapable of acting before the investigation and audit are completed, a new auditor may be appointed in his place in like manner as the original auditor was appointed.

(6) The remuneration of the auditor and the other expenses of the investigation and audit shall be such as may be approved by the Public Trustee but shall be subject to review by the Court on the application of any person affected. Unless the Court otherwise orders such expenses shall be borne by the estate, and, in the event of the Court so ordering, shall be borne by the trustees personally or any of them, or by the applicant, or be apportioned between them or any of them, or between them and any of them and the estate, in such proportions as the Court thinks just.

(7) If any person having the custody of any books, accounts, vouchers, securities, or documents to which the auditor has a right of access under this section falls or refuses to allow him to have access thereto, or in anywise obstructs the investigation or audit, the auditor may apply to the Court, and thereupon the Court shall make such order as it thinks just.

(8) Subject to any rules of Court, applications under or for the purposes of this section to the Court shall be made to a judge in Chambers.

(9) If any person in any statement of accounts, report, or certificate required for the purposes of this section wilfully makes a statement that is false in any material particular, he shall be liable on conviction to imprisonment for a term not exceeding 2 years, or to a fine not exceeding $500 instead of or in addition to that imprisonment.

(10) The Public Trustee shall not be liable for any expenses or costs under this section.

(11) All expenses and costs for which the estate is liable under this section shall be a charge on the assets of the estate, and that charge may be enforced in such manner as the Court directs.

57. Fees and commission deemed a testamentary expense-The fees, commission, remuneration and other charges payable to a trustee in respect of the administration of the estate of a deceased person shall be deemed to be testamentary expenses.

58. Costs of inquiring regarding beneficiaries-The costs, expenses, and charges of the trustee of any property in respect of any inquiries made by him to ascertain the existence and identity of any person or persons entitled to any legacy, money, or distributive share in the property or otherwise incurred in relation thereto shall be borne by and paid out of the legacy, money, or distributive share of the person or persons in respect of whom the inquiries were made.

59. Repeal and saving-(1) The Trustee Act 1956 (N.Z.) is hereby repealed as part of the law of Western Samoa.

(2) It is hereby declared that the repeal of the said Act shall not affect any document made or any thing whatsoever done under that Act, and every such document or thing, so far as it is subsisting or in force at the time of the repeal and could have been made or done under this Act, shall continue and have effect as if it had been made or done under the corresponding provision of this Act and as if that provision had been in force when the document was made or the thing was done.

-------------------------------------------

The Trustee Act 1975
is administered in the Department of Justice.

PacLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.paclii.org/ws/legis/consol_act_1996/ta1975122