Bill 30 - Trustees Act

BILL 30

Trustees Act

Her Majesty, by and with the advice and consent of the Legislative Assembly of New Brunswick, enacts as follows:

PART 1

DEFINITIONS AND APPLICATION

Definitions

1 The following definitions apply in this Act.

“alter ego trust” has the same meaning as in the Income Tax Act (Canada). (fiducie en faveur de soi-même)

“beneficiaries or purposes of the trust” means (bénéficiaire ou objets de la fiducie)

(a) if the trust is not a charitable trust, its beneficiaries, or

(b) if the trust is a charitable trust, its purposes.

“committee of the estate” means a committee of the estate under the Infirm Persons Act and includes, when applicable in context, a person appointed under paragraph 39(3)(a) of that Act to perform acts or make decisions relating to property of a person. (curateur aux biens)

“continuing trustee” means a trustee who continues as a trustee after another trustee ceases to be a trustee. (fiduciaire demeurant en fonction)

“court” means The Court of Queen’s Bench of New Brunswick. (Cour)

“fiscal period” means (exercice)

(a) the period identified in the trust instrument as the period adopted for accounting purposes;

(b) if paragraph (a) does not apply, the period specified by the trustees as the period adopted for accounting purposes; or

“incompetency” means mental incompetency as defined in the Infirm Persons Act. (incapacité)

“joint spousal or common-law partner trust” has the same meaning as in the Income Tax Act (Canada). (fiducie mixte au profit de l’époux ou du conjoint de fait)

“outgoing” means an expenditure paid or incurred in administering a trust, including, without limitation, an expenditure arising from or made with respect to repairs, maintenance, insurance, taxes, security interests, debts, calls on shares, annuities and losses. (dépense)

“post-1971 spousal or common-law partner trust” has the same meaning as in the Income Tax Act (Canada). (fiducie au profit de l’époux ou du conjoint de fait postérieure à 1971)

“pre-1972 spousal trust” has the same meaning as in the Income Tax Act (Canada). (fiducie au profit du conjoint antérieure à 1972)

“qualified beneficiary” means a beneficiary who (bénéficiaire admissible)

(a) has a vested beneficial interest in the trust property, or

(b) has delivered notice under subsection 93(1) and has not withdrawn the notice under subsection 93(2).

“secured party” means a person who has a security interest. (partie garantie)

“security interest” means an interest in property that secures payment or performance of an obligation. (sûreté)

“settlor” includes a testator in relation to a trust created by a will. (constituant)

“trust instrument” means a deed, will, document or oral declaration that creates or varies a trust, but does not include a judgment or order of a court of competent jurisdiction. (instrument de fiducie)

“trustee” means (fiduciaire)

(a) when used in the singular, a person who is a trustee;

(b) when used in the plural, the trustees acting together or, if there is only one trustee, that trustee.

Application to existing trusts

2 Unless otherwise provided in this Act, this Act applies in respect of trusts created before or after this Act comes into force.

Powers conferred by trust instrument

3( 1) A trust instrument may confer on the trustees or on a trustee powers that differ from, vary or exclude the ones provided by this Act.

3( 2) If the trust instrument confers powers described in subsection (1), the powers provided by this Act do not apply to the trust to the extent that they are inconsistent with the powers conferred by the trust instrument.

Resulting and constructive trusts

4 This Act does not apply in respect of

(a) a resulting trust,

(b) a constructive trust, or

Personal representatives

5 This Act

(a) with the exception of Part 6 does not apply to the discharge by the personal representatives of a deceased person of their responsibilities as such, but

(b) does apply to personal representatives if a will creates a trust and makes the personal representatives the trustees of the trust.

Continuation of existing rules

6 The rules of common law and equity relating to trusts continue to apply except in so far as they are inconsistent with the provisions of this Act.

Trust is not a person

7 For greater certainty, nothing in this Act gives a trust legal status as a person.

PART 2

APPOINTMENT AND REMOVAL OF A TRUSTEE

Division A

Appointment of Trustee

Designated person

8( 1) In this Division, “designated person” means, in relation to a trust, the first of the following, proceeding in descending order, who is able and willing to act:

(a) the person nominated by the trust instrument for the purpose of appointing a replacement trustee;

(b) except in relation to paragraph 11(1)(a), the continuing trustees;

8( 2) If more than one person is nominated by a trust instrument for the purpose of appointing a replacement trustee, the nominated persons may act by majority.

8( 3) If a majority of the nominated persons cannot agree on the appointment of a replacement trustee, the nominated persons are deemed for the purposes of subsection (1) to be unable to act.

Appointment of replacement trustee

9( 1) The designated person may appoint in writing a replacement trustee in any of the following circumstances:

(a) a trustee has ceased to hold office under section 17;

(b) subject to subsection (2), a trustee has died or a person appointed as trustee dies before taking office;

(d) a person disclaims the office of trustee.

9( 2) A designated person referred to in paragraph 8(1)(a) or (c)

(a) may appoint himself or herself as a replacement trustee, and

(b) may be appointed as a replacement trustee.

Appointment to follow last trustee’s death

10( 1) A sole trustee, or the last continuing trustee, may appoint in writing one or more persons to be a replacement trustee after his or her death.

10( 2) An appointment under subsection (1) is subject to an appointment of a replacement trustee that may be made by a designated person referred to in paragraph 8(1)(a).

10( 3) If a person has been appointed under subsection (1) and accepts the office of trustee, a designated person referred to in a paragraph 8(1)(c) may not make an appointment under paragraph 9(1)(b).

Temporary absence or incapacity of trustee

11( 1) If a trustee is temporarily unable to participate in the administration of the trust by reason of absence or an incapacity that does not amount to incompetency, the designated person may, in writing,

(a) authorize the other trustees, for the period that the trustee is absent or incapacitated, to administer all or part of the trust or to exercise the powers or perform the duties authorized by the designated person, or

(b) if there are no other trustees, appoint a person to act as a temporary trustee to do those things.

11( 2) The administration of the trust, exercise of powers or performance of duties by the other trustees or by the temporary trustee is deemed to be as valid as if the absent or incapacitated trustee were not absent or incapacitated and had participated in the administration of the trust, exercise of powers or performance of duties.

Trustee’s power of attorney

12( 1) A trustee may, by power of attorney, appoint an attorney to exercise any powers and perform any duties vested in the trustee for a specified period not longer than 12 months from the time the power of attorney is to take effect.

12( 2) Subject to subsection (3), a trustee may only appoint a co-trustee as attorney if the appointment would have been reasonable and prudent if the co-trustee had not been a co-trustee.

12( 3) If there are only two trustees and the terms of the trust specify that there shall be a minimum of two trustees, neither trustee may appoint the other trustee as attorney.

12( 4) A trustee who appoints an attorney under subsection (1) is liable for a loss arising from the acts or omissions of the attorney as if they were the acts or omissions of the trustee.

12( 5) No later than seven days after a power of attorney is executed under subsection (1), the trustee shall deliver written notice in accordance with subsections (6) and (7) that an attorney has been appointed.

12( 6) A notice referred to in subsection (5) shall be delivered to the following persons:

(a) every other trustee of the trust;

(b) every person who has the power under the trust instrument, whether alone or jointly, to appoint a new trustee; and

12( 7) The notice referred to in subsection (5) shall include the following information:

(a) the identity of the attorney;

(b) the mailing address for the attorney;

(d) a description of the powers and duties delegated to the attorney;

(e) the reason for the appointment;

(f) the date or event on which the appointment is to take effect; and

(g) the duration of the appointment.

12( 8) The failure by the trustee to comply with subsection (5) does not invalidate, as against a third party dealing with the trustees or the attorney in good faith, any act done or document executed by the attorney.

Power of court to appoint trustee

13 The court may appoint a replacement or additional trustee if

(a) the court removes a trustee under section 21, or

(b) the court is of the opinion that

( i) the appointment of a trustee would otherwise be inexpedient, difficult or impracticable, and

( ii) the appointment of a replacement or additional trustee is in the best interests of the beneficiaries or purposes of the trust or its good administration.

Judicial trustee

14( 1) In appointing a replacement or additional trustee under section 13, the court may do one or more of the following:

(a) appoint any person, including a court official, as a trustee;

(b) designate a person appointed under paragraph (a) as a judicial trustee;

14( 2) A judicial trustee is an officer of the court.

14( 3) The court may give directions to a judicial trustee in regard to the trust or the administration of the trust, with or without an application for directions under section 76 or 77.

14( 4) The court may determine or provide for the compensation of a judicial trustee that is to be paid out of the trust property and designate all or part of the trust property as the source for the compensation.

Person not qualified to be appointed trustee

15 A person described in section 19 shall not be appointed as a trustee.

Powers and duties of new trustees

16 A replacement or additional trustee appointed in accordance with this Act has the same powers and duties and may in all respects act as if appointed as a trustee by the trust instrument.

Division B

Termination of Trusteeship

Ceasing to be a trustee

17 A person ceases to hold office as a trustee if

(a) the person resigns,

(b) the person becomes disqualified under section 19, or

Resignation by trustee

18 A person may resign the office of trustee by delivering a written resignation to

(a) each person nominated by the trust instrument for the purpose of appointing a replacement trustee, or

(b) if no such person is nominated, each continuing trustee.

Disqualification of trustee

19 Unless the trust instrument provides otherwise, a person is disqualified as a trustee if

(a) the person becomes incompetent,

(b) the person has been convicted of an offence involving dishonest conduct under

( i) an enactment, or

( ii) a law of Canada or another province or territory of Canada, or

Removal of unsuitable trustee

20( 1) A person is unsuitable to remain in office as a trustee if

(a) the person

( i) fails to demonstrate the care, diligence and skill that a person of ordinary prudence would exercise in dealing with the property of another person,

( ii) consistently fails to respond to communications from a beneficiary or another trustee, or

( iii) is otherwise unwilling or unable, or unreasonably refuses, to act cooperatively with other trustees, and

(b) the person’s conduct is detrimental to the efficient or proper administration of the trust.

20( 2) If there are three or more trustees and the suitability of a trustee to remain in office is questioned, a majority of the other trustees may determine that the trustee is unsuitable to remain in office and may remove that trustee from office by a written resolution setting out the reasons for the removal.

20( 3) A resolution under subsection (2) is effective,

(a) if the trustee that is the subject of the resolution does not request a meeting under subsection (4), 15 days after a copy of the resolution is delivered to that trustee, or

(b) if the trustee that is the subject of the resolution requests a meeting under subsection (4), at the conclusion of the meeting, unless the resolution is rescinded.

20( 4) Within the 15-day period after a copy of the resolution is delivered to the trustee that is the subject of the resolution, that trustee may deliver to the other trustees a written request for a meeting with them to respond to the reasons set out in the resolution.

20( 5) A meeting requested under subsection (4) shall take place as soon as practicable.

20( 6) After the trustee responds to the reasons set out in the resolution, the other trustees may rescind or confirm the resolution.

Power of court to remove trustee

21( 1) The court may remove a person from the office of trustee if

(a) subsection 20(1) applies and there are fewer than three trustees, or

(b) the court is of the opinion that

( i) the removal of the person under section 20 or under a power conferred by a trust instrument would be inexpedient, difficult or impracticable, and

( ii) the removal of the person is in the best interests of the beneficiaries or purposes of the trust or its good administration.

21( 2) If the court considers a reduction in the number of trustees to be in the best interests of the beneficiaries or purposes of the trust or its good administration, the court may

(a) reduce the number of trustees, and

(b) to give effect to the decision under paragraph (a), remove a person as trustee.

21( 3) The court may remove a trustee appointed by the court under section 13.

21( 4) Despite any other provision of this Act or a power conferred by a trust instrument, a trustee who is designated as a judicial trustee by the court under paragraph 14(1)(b) may only be removed under subsection (3).

Power of court to reinstate trustee

22( 1) A person removed as trustee, except a person removed under section 21, may apply to the court for an order under subsection (3)

(a) if the person is removed under section 20, within 60 days after the resolution becomes effective, or

(b) in any other case, within 60 days after the earlier of

( i) the date of the appointment of a replacement trustee under section 9(1), and

( ii) the date that the removal as trustee comes to the attention of the person removed.

22( 2) The court may make an order under subsection (3) if

(a) the court is satisfied that the person was removed as trustee based on a mistake of fact or law, and

(b) the court considers making the order to be in the best interests of the beneficiaries or purposes of the trust or its good administration.

22( 3) Subject to subsection (2), the court may

(a) reinstate the person as trustee on a specified date,

(b) declare that the person did not cease to hold the office of trustee during the period following the purported removal, or

22( 4) If the court makes an order under subsection (3), the court may also give directions or make a declaration as to the person’s status as trustee or the liability of

(a) a replacement trustee appointed under section 9,

(b) the person who is the subject of the order, or

Mistaken belief does not invalidate actions

23( 1) If a person is mistakenly believed to have ceased holding the office of trustee under section 17, the exercise of powers and performance of duties in the administration of the trust by a replacement trustee appointed under section 9 or by any continuing trustees is not invalid by reason only of the mistake, whether of fact or law.

23( 2) If a person is mistakenly believed to be holding the office of trustee, the exercise of powers and performance of duties in the administration of the trust by the person as trustee or by the trustees is not invalid by reason only of the mistake, whether of fact or law.

Liability of former trustee

24 Unless the court orders otherwise, if a person ceases to be a trustee, any consequential vesting of trust property in or transfer of trust property to a replacement trustee does not relieve the former trustee from liability for a breach of trust occurring while that person was a trustee.

PART 3

VESTING OF PROPERTY

Joint tenants

25 If a trust has more than one trustee, the trust property vests in the trustees as joint tenants.

Vesting

26( 1) A person who is appointed as a replacement or additional trustee becomes a joint tenant of the trust property at the time the appointment is effective.

26( 2) If a person ceases to be a trustee, the trust property ceases to be vested in that person and remains vested in the continuing trustees.

26( 3) If a person who is a sole trustee or the last continuing trustee ceases to be a trustee or there is otherwise no trustee, the trust property vests in the new trustee when the new trustee is appointed.

26( 4) No further declaration or order is required in relation to trust property that vests or ceases to be vested under this section.

26( 5) Without limiting subsection (4), if an enactment provides that property may be transferred only by registration, by an entry in a record or by other specified means, a person in whom the property vests under this section is entitled to perfect the transfer of the property in accordance with the enactment.

26( 6) This section applies whether a person ceases to be a trustee, or is appointed as a replacement or additional trustee, in accordance with the terms of the trust or of this Act.

Leasehold property

27 If trust property includes a leasehold interest in property, the vesting of a joint tenancy interest in a trustee in accordance with section 26

(a) does not require the consent of the lessor,

(b) is not a breach of any provision of the lease that prohibits or restricts the disposition of the lessee’s interest in the leasehold property, and

Vesting orders

28( 1) If the court considers it to be in the best interests of the beneficiaries or purposes of the trust or its good administration, the court may make an order

(a) vesting all or part of the trust property in a person as trustee, or

(b) appointing a person to enter into or to join in entering into a transaction relating to all or part of the trust property.

28( 2) An order under subsection (1) may be made in the manner and on the terms and conditions the court considers appropriate.

28( 3) An order under subsection (1) may be made on application by the Attorney General or a person referred to in section 83.

PART 4

DUTIES AND POWERS OF TRUSTEES

Division A

Duties

Fiduciary duty

29( 1) In the administration of a trust, a trustee shall act in good faith and in accordance with

(a) the terms of the trust, and

(b) this Act.

29( 2) A trustee shall exercise the powers and perform the duties of the office of trustee solely in the best interests of the beneficiaries or purposes of the trust.

Duty of care

30( 1) In the performance of a duty or the exercise of a power, whether the duty or power arises by operation of law or from the trust instrument, a trustee shall exercise the care, diligence and skill that a person of ordinary prudence would exercise in dealing with the property of another person.

30( 2) If, because of a trustee’s profession, occupation or business, the trustee possesses or ought to possess a particular degree of care, diligence and skill that is relevant to the administration of the trust and is greater than that which a person of ordinary prudence would exercise in dealing with the property of another person, the trustee shall exercise that greater degree of care, diligence and skill.

Conflict of interest

31( 1) Unless the law or the trust instrument permits or the beneficiaries consent, a trustee shall not knowingly permit a situation to arise in which

(a) the trustee’s personal interest conflicts with the trustee’s exercise of the powers or performance of the duties of the office of trustee, or

(b) the trustee may derive any personal benefit or a benefit for any other person.

31( 2) On application by a trustee who shows that acting or declining to act is in the best interests of the beneficiaries or purposes of the trust, whether or not the beneficiaries consent, the court may make an order, on the terms and conditions the court considers appropriate,

(a) allowing the trustee to act or decline to act, whether or not the trustee may be in a situation that contravenes subsection (1), or

(b) excusing a trustee from liability for contravening subsection (1).

31( 3) An order under paragraph (2)(b) may be made any time after the contravention of subsection (1).

31( 4) A trustee shall serve notice of an application under this section as follows:

(a) to all qualified beneficiaries of the trust, unless otherwise ordered by the court; and

(b) if the trust is a charitable trust, to any person the court directs.

31( 5) If paragraph (4)(b) applies, the trustee shall also serve notice of an application under this section on the Attorney General at least 30 days before the date set for the hearing of the application, and the Attorney General is entitled to appear and be heard on the application.

31( 6) On application by the trustee, a qualified beneficiary or the Attorney General, the court may vary an order under this section if

(a) additional information becomes available after the order is made, or

(b) the circumstances under which the order was made change.

31( 7) Nothing in this section limits the jurisdiction of the court under sections 60, 78 and 79.

Duty to report to qualified beneficiaries

32( 1) Unless the trust instrument provides otherwise, for each fiscal period of a trust, the trustees shall provide to the qualified beneficiaries a report in respect of the trust that includes the following:

(a) for the fiscal period in which the trust is created, a statement of the assets and liabilities of the trust and the value of those assets and liabilities at the time the trust is created;

(b) a statement of the assets and liabilities of the trust and the value of those assets and liabilities at the beginning and end of the fiscal period;

(d) a statement of receipts and their sources for the fiscal period; and

(e) a statement of disbursements and their recipients for the fiscal period.

32( 2) A report under subsection (1) in respect of a fiscal period shall be delivered no later than 60 days after the end of the fiscal period.

32( 3) On the written request of a qualified beneficiary, the trustees shall allow the beneficiary to inspect the source documents for the statements referred to in subsection (1).

32( 4) Subject to subsection 33(2), the trustees are not required to disclose information under this section if, in the opinion of the trustees, the disclosure would

(a) be detrimental to the best interests of any beneficiary or otherwise be prejudicial to the trust property or the administration of the trust,

(b) conflict with any duty owed by a trustee as a director of a corporation in which the trust has an ownership interest,

(c) reveal the reasons why the trustees did or did not exercise a power conferred by the trust instrument or an enactment,

(d) place an unreasonable administrative burden on the trustees, or

(e) place the trustees in breach of obligation, properly assumed by the trustees, to maintain confidence.

32( 5) A beneficiary may waive, by delivering written notice to the trustees, the right to a report or to specific information in the report that is required to be given under this section.

32( 6) A beneficiary may revoke a waiver by delivering written notice to the trustees.

Duty to provide information

33( 1) Section 32 does not limit the duty of trustees under general trust law to provide to a beneficiary, on request, accounts or trust information within a reasonable period of time.

33( 2) On application by a qualified beneficiary or a beneficiary who has requested information that has not been provided by the trustees, the court may order, on terms and conditions the court considers appropriate, the disclosure of any information regarding any of the following:

(a) the terms of the trust;

(b) the administration of the trust; and

Division B

General Administrative Powers

Powers of trustees

34( 1) Subject to this Act and to their fiduciary obligations, the trustees have the powers and capacity of an individual of full capacity in relation to trust property as if the property were vested in the trustees absolutely and for their own use.

34( 2) Without limiting subsection (1), the trustees may

(a) sell, lease or enter into any other transaction relating to trust property,

(b) borrow money for the purpose of carrying out the trust, and

34( 3) The trustees may, with the consent of a beneficiary, use the income or capital to which the beneficiary is entitled

(a) to purchase or rent living accommodation for the beneficiary, or

(b) to construct a residence for the beneficiary on land that is part of the trust property or is purchased for the construction.

34( 4) The trustees may, with the consent of a beneficiary, appropriate specific trust property, at fair market value, in or towards satisfaction of the share or interest of the beneficiary.

Power of court to confer further powers on trustees

35( 1) If, in the administration of a trust, a transaction relating to trust property that is expedient and in the best interests of the beneficiaries or purposes of the trust cannot be carried out because the trustees lack the power, the court may confer the necessary power on the trustees, either generally or in any particular instance and on terms and conditions the court considers appropriate.

35( 2) An order under subsection (1) may be made on application by the Attorney General or a person referred to in section 83.

Division C

Investment Powers

Power to invest

36( 1) Subject to the terms of the trust instrument, the trustees may invest trust property in any kind of property or investment.

36( 2) For greater certainty,

(a) the trustees may invest in a mutual fund, the common fund of a trust company or a similar pooled fund, and

(b) if a corporation is a trustee, the trustees may invest in the securities of the corporation.

Duty relating to investments

37( 1) When investing trust property, the trustees shall act prudently and in accordance with sections 29 and 30, and having regard to the circumstances of the trust, including

(a) its assets,

(b) its beneficiaries or purposes and its different classes of beneficiaries or purposes,

(d) a reasonable balance between risk and return.

37( 2) The trustees shall review the trust investments at reasonable intervals for the purpose of determining that the investments continue to be appropriate to the circumstances of the trust.

Prudence of investments

38 An investment that would be imprudent if viewed in isolation is not imprudent if, viewed in the context of the trustees’ other investments, section 37 has been complied with.

Division D

Allocation of Income and Capital

Duty to act impartially and prudently

39 Nothing in this Division alters the duty of trustees

(a) to act impartially as between different classes of beneficiaries in the administration of a trust, and

(b) to comply with section 37 in relation to investments.

Apportionment of outgoings

40( 1) This section does not apply in respect of the following trusts unless the trust instrument expressly provides otherwise:

(a) an alter ego trust;

(b) a joint spousal or common-law partner trust;

(d) a pre-1972 spousal trust.

40( 2) The trustees may charge all or part of an outgoing to the income or capital of the trust as the trustees consider is

(a) just and equitable in the circumstances,

(b) in accordance with ordinary business practice, and

40( 3) If the amount of an outgoing charged to the income or capital of the trust under subsection (2) is not equal to the amount paid out of the income or capital in respect of the outgoing, the trustees may allocate an amount between income and capital to recover or reimburse the payment in respect of the outgoing.

40( 4) If trust property is subject to depreciation, the trustees may

(a) deduct from the income earned from the trust property an amount that the trustees consider is

( i) just and equitable in the circumstances,

( ii) in accordance with ordinary business practice, and

( iii) in the best interests of the beneficiaries or purposes of the trust, and

(b) add that amount to the capital of the trust.

Discretionary allocation trusts of receipts and outgoings

41( 1) If the trustees are expressly directed by the trust instrument to hold trust property on discretionary allocation trusts, the trustees may allocate receipts and charge outgoings to the income and capital of the trust as the trustees consider just and equitable in the circumstances.

41( 2) If the amount of an outgoing charged to the income or capital of the trust under subsection (1) is not equal to the amount paid out of the income or capital in respect of the outgoing, the trustees may allocate an amount between income and capital to recover or reimburse the payment in respect of the outgoing.

Total return investment

42( 1) The following definitions apply in this section.

“assets” means trust property that is subject to a total return investment policy. (actifs)

“specified percentage” means a percentage specified in the trust instrument for the purpose of this section. (pourcentage fixé)

“total return investment policy” means a policy of investing property so as to obtain the optimal return without regard to whether the return is characterized as income or capital. (politique de rendement à placement total)

“valuation period” means the valuation period determined under subsection (10). (période d’évaluation)

42( 2) For the purposes of this section, the following words in a trust instrument constitute a reference to a total return investment policy:

(a) “on percentage trusts”; or

(b) “total return”, when used with reference to investments.

42( 3) In a trust instrument, a settlor may direct or authorize the trustees to adopt a total return investment policy with respect to all or part of the trust property.

42( 4) Subject to subsection (5), the trustees of a charitable trust may adopt a total return investment policy with respect to trust property, whether or not the terms of the trust contain a direction or authorization to that effect.

42( 5) A total return investment policy may not be adopted under subsection (4) if, in the trust instrument, the settlor expressly directs the trustees not to adopt a total return investment policy with respect to that trust property.

42( 6) If a total return investment policy is adopted, the trustees shall determine the net value of the assets at the beginning of each valuation period.

42( 7) For the purposes of this section, the net value of the assets is the amount equal to the fair market value of the assets less any liabilities in relation to those assets.

42( 8) If a total return investment policy is adopted, the trustees shall, in each fiscal period, pay to the persons who would otherwise be the income beneficiaries, or apply to the purposes of the trust, an amount equal to the specified percentage of the net value of the assets at the beginning of the valuation period.

42( 9) The trustees shall:

(a) if possible, pay or apply the amount required under subsection (8) from income earned during the fiscal period from the investment of the assets;

(b) if the income referred to in paragraph (a) is insufficient to pay or apply the amount required under subsection (8), pay or apply an amount from capital; and

(c) if the income earned during the fiscal period from the investment of the assets exceeds the amount paid or applied under subsection (8), add the amount of the excess to the assets.

42( 10) The valuation period for assets that are invested in accordance with a total return investment policy is determined as follows:

(a) the first valuation period begins

( i) on the date of the settlement, or

( ii) in the case of a testamentary trust, one year after the date of the testator’s death;

(b) the second and subsequent valuation periods begin immediately after the end of the previous valuation period;

( i) three years;

( ii) the period specified in the trust instrument; and

( iii) the period selected by the trustee.

Application of sections 41 and 42

43 Sections 41 and 42 do not limit any other power of the trustees to encroach on capital in favour of a beneficiary.

Division E

Distributive Powers

Interpretation and application

44( 1) In this Division, “spouse” means either of two persons who

(a) are married to each other, or

(b) are not married to each other but have cohabited continuously in a conjugal relationship for a period of two years.

44( 2) This Division does not apply in respect of the following trusts unless the trust instrument expressly provides otherwise:

(a) an alter ego trust;

(b) a joint spousal or common-law partner trust;

(d) a pre-1972 spousal trust.

44( 3) A direction in a provision of a trust instrument to accumulate income is not in itself sufficient to exclude or vary a provision in this Division.

Power to pay income

45( 1) Subject to any interest or charge affecting the trust property, if property is held in trust for an individual, the trustees may do any of the following as they consider reasonable in the circumstances:

(a) if the individual is a minor, pay all or part of the income earned from the property

( i) towards the individual’s past, present or future maintenance, education, benefit or advancement in life,

( ii) to the parent, guardian or other person having custody or control of the individual, to be used for those purposes;

(b) if the individual has reached the age of majority and does not have an income or capital interest vested in interest and in possession, pay to, or for the benefit of, the individual all or part of the income earned from the property;

(c) if the individual has a child, spouse or former spouse and the trustees consider the payment to be to the benefit of the individual,

( i) pay all or part of the income earned from the property towards the child’s past, present or future maintenance, education, benefit or advancement in life,

( ii) pay to, or for the benefit of, the spouse or former spouse all or part of the income earned from the property.

45( 2) The trustees may pay the income earned from the trust property under subsection (1)

(a) whether the interest of the individual in the trust property is vested or contingent,

(b) whether or not there is any other fund available for the same purpose, and

Power to pay amount from capital

46( 1) Subject to this section and to any interest or charge affecting the trust property, if property is held in trust for an individual for any interest in capital, the trustees may pay an amount in respect of the individual from the capital of the trust, as the trustees consider reasonable in the circumstances:

(a) if the individual is a minor, towards the individual’s past, present or future maintenance, education, benefit or advancement in life;

(b) if the individual has reached the age of majority, towards the individual’s benefit;

(c) if the individual has a child or spouse and the trustees consider the payment to be to the benefit of the individual,

( i) towards the child’s past, present or future maintenance, education, benefit or advancement in life, or

( ii) towards the spouse’s benefit.

46( 2) In order to pay an amount under subsection (1), the trustees may

(a) create a security interest in a capital asset of the trust, or

(b) sell, lease or otherwise dispose of a capital asset of the trust.

46( 3) The trustees may pay an amount under subsection (1) or exercise the power under subsection (2) whether the interest of the individual in the capital

(a) is vested or contingent, or

(b) is in possession or in remainder or reversion.

46( 4) The total of the amounts paid under subsection (1) shall not exceed the greater of

(a) half of the value of the interest of the individual, or

(b) an amount approved by the court.

46( 5) If the court approves an amount under paragraph (4)(b) and the trustees pay an amount in accordance with the order, the trustees shall promptly give written notice of the following to any other beneficiary who, at the time of the payment of the amount, is entitled to receive income from the capital from which the amount was paid:

(a) the terms of the order made by the court under paragraph (4)(b); and

(b) the amount paid in accordance with the order.

46( 6) The trustees may not pay an amount under subsection (1)

(a) unless the income or accumulated surplus income that is available under the terms of the trust for the maintenance, education, benefit or advancement in life of the individual or of the individual’s child or spouse is insufficient, or

(b) if the payment is detrimental to the pecuniary interest of a person who is entitled to a prior life or other interest, whether vested or contingent, in the amount to be paid, unless

( i) the person is of full capacity and consents in writing to the payment, or

( ii) the person is not of full capacity and the court approves the payment, on application by the trustees.

46( 7) If an amount is paid under subsection (1) in respect of an individual, the individual’s interest in the capital of the trust shall be reduced by that amount.

46( 8) If the individual referred to in subsection (7) does not have a vested interest in the capital of the trust when the amount is paid or applied under subsection (1), the reduction under subsection (7) is to be made when that interest is vested.

Conditions on payment from capital

47( 1) If the trustees pay an amount under subsection 46(1) or if, under the terms of the trust, they pay an amount from capital for the benefit of an individual or an individual’s child or spouse, the trustees may impose conditions on the person receiving the payment or the benefit of the payment, including, without limitation, conditions relating to any of the following:

(a) the repayment of the payment to the trustees;

(b) the payment of interest to the trustees; and

47( 2) The trustees may do any of the following in relation to a condition imposed under subsection (1):

(a) waive all or part of a condition;

(b) release a person from an obligation undertaken; and

47( 3) If an amount paid under subsection 46(1) is repaid to or recovered by the trustees in accordance with a condition under subsection (1) of this section, the amount repaid or recovered is deemed not to have been paid under section 46.

47( 4) When imposing a condition in respect of security under subsection (1), the trustees are not bound by any restrictions on the investment of the trust property.

47( 5) A trustee who has acted in accordance with section 29 in paying an amount under section 46 is not liable for a loss arising from the transaction, including a loss arising because a person breaches a condition imposed by the trustees.

Payment or transfer in relation to minor or incompetent person

48 If a minor or an incompetent person is entitled to trust money or trust securities, the trustees may pay the money to or transfer the securities

(a) to the parent or other guardian of the minor, as property of the minor, or

(b) if a committee of the estate has been appointed for the incompetent person, to the committee of the estate.

Division F

Delegation

Delegation of administrative powers

49( 1) Subject to subsection (3), if it is reasonable and prudent, trustees may appoint an agent, within or outside the province, as their delegate to exercise any power or perform any duty in the administration of the trust property.

49( 2) Without limiting subsection (1), trustees may appoint an agent to do one or more of the following:

(a) acquire, dispose of or enter into other transactions relating to the trust property;

(b) execute documents; and

49( 3) The trustees may not appoint an agent to

(a) exercise a discretion to distribute or transfer trust property to, or for the benefit of, a beneficiary of the trust, or

(b) perform the duties of a trustee under section 51(1).

Agents – appointment, supervision and trustee liability

50( 1) In appointing an agent, the trustees shall

(a) personally select the agent, and

(b) be satisfied of the agent’s suitability to exercise the power or perform the duty for which the agent is to be appointed.

50( 2) The trustees shall exercise reasonable and prudent supervision over the agent they appoint.

50( 3) Subject to subsection (4), a trustee is not liable for a loss in the value of the trust property caused by an act or omission of an agent unless the trustee is in breach of subsection (1) or (2) and the loss is a consequence of that breach.

50( 4) A trustee is not liable for a loss in the value of the trust property caused by the conduct of a financial institution or another person with whom trust property is deposited or left for safekeeping unless the trustee fails to

(a) exercise prudence in the selection of the financial institution or other person, or

(b) exercise reasonable and prudent supervision over the financial institution or other person.

50( 5) The trustees may appoint one of themselves as their agent if the appointment is reasonable and prudent.

50( 6) With the approval of the trustees, an agent appointed by the trustees may delegate a power or duty of the agent to another person.

50( 7) In delegating a power or duty under subsection (6), the agent shall

(a) personally select the delegate, and

(b) be satisfied of the delegate’s suitability to exercise the power or perform the duty delegated.

50( 8) An agent shall exercise reasonable and prudent supervision over a person to whom a power or duty is delegated under subsection (6).

Delegation of authority with respect to investment

51( 1) If the trustees delegate authority with respect to the investment of trust property, they shall determine the investment objectives for the trust and exercise prudence in

(a) establishing the terms and limits of the authority delegated, and

(b) acquainting the agent with the investment objectives.

51( 2) Despite subsection 50(3), a trustee is liable for a loss in the value of the trust property caused by an act or omission of an agent to whom authority is delegated under this section if the trustee is in breach of subsection (1) and the loss is a consequence of that breach.

51( 3) Investment in a mutual fund, a common trust fund or a similar pooled fund referred to in paragraph 36(2)(a) is not a delegation of authority with respect to the investment of trust property.

Division G

Miscellaneous

Liability of trustee

52( 1) Subject to this Act, a trustee is not liable for a breach of trust committed by a co-trustee unless the trustee participated in the breach of trust by the trustee’s own acts or omissions.

52( 2) A trustee is not liable for a loss in relation to trust property by reason only that the trustee signs a receipt with a co-trustee because of a requirement imposed by the trust instrument that the trustees act unanimously.

Powers and duties conferred jointly

53 Unless the trust instrument provides otherwise,

(a) if a power is conferred or a duty is imposed on two or more trustees, the power is conferred and the duty is imposed jointly, and

(b) if a power is conferred or a duty is imposed on trustees jointly,

( i) the power may be exercised or the duty may be performed in accordance with section 54, and

( ii) if there is only one continuing trustee, the power may be exercised or the duty may be performed by that trustee.

Trustees may act by majority

54( 1) Subject to subsection (2), this section does not apply in respect of a trust created by a trust instrument executed before this section comes into force.

54( 2) The trustees of a trust described in subsection (1) may elect in writing that this section applies unless doing so is contrary to the trust instrument.

54( 3) If there are more than two trustees, the trustees may perform their duties and exercise their powers by a majority of the trustees holding office.

54( 4) A trustee who disagrees with a decision or act of the majority of trustees may deliver a written statement of disagreement to the other trustees but, unless the decision or act is unlawful, shall join with the majority in doing anything necessary to carry out that decision or act if it cannot be carried out otherwise.

54( 5) A trustee who delivers a written statement as required by subsection (4) is not liable for a loss or breach of trust arising from the decision or act even if the trustee joins with the majority in accordance with that subsection.

54( 6) If a trustee abstains from participating in a decision or act of the trustees because there is a conflict or potential conflict between the trustee’s personal interest and the powers and duties of the office of trustee, or for another good reason, the trustee is deemed not to be holding office for the purpose of determining whether a decision made or act done by the other trustees is made or done

(a) by the trustees unanimously, or

(b) by a majority of the trustees holding office.

Allocation of insurance proceeds

55( 1) This section only applies to proceeds under a contract of insurance that are payable after this section comes into force.

55( 2) The trustees shall allocate insurance proceeds to the capital of the trust if

(a) the trustees entered into a contract of insurance against loss of, or damage to, any trust property,

(b) the trustees paid the premiums owing under the contract, and

55( 3) If a beneficiary of a trust enters into a contract of insurance against loss of, or damage to, any trust property, whether or not the beneficiary is required by the trust instrument or by a third party to obtain the insurance, and insurance proceeds under the contract are paid to the beneficiary,

(a) the beneficiary shall pay the insurance proceeds to the trustees,

(b) the trustees shall allocate the insurance proceeds to the capital of the trust, and

(c) the trustees shall reimburse the beneficiary for expenses incurred by the beneficiary in entering into the contract of insurance, in the amount the trustees consider to reflect the interests of the other beneficiaries in the trust property.

55( 4) The trustees may apply all or part of the insurance proceeds received under subsection (2) or (3) to the rebuilding, reinstatement, replacement or major repair of the trust property that has been lost or damaged.

55( 5) Nothing in this section affects the rights of a secured party, lessor, lessee or other person

(a) to receive insurance proceeds, or

(b) to require that the insurance proceeds be applied to the rebuilding, reinstatement, replacement or major repair of the trust property that has been lost or damaged.

No notice from other trust

56 A trustee does not, in the absence of fraud, have notice of an instrument, matter, fact or thing in relation to a trust merely because the trustee has notice of the instrument, matter, fact or thing in his or her capacity as trustee of another trust.

PART 5

VARIATION AND TERMINATION OF TRUSTS

Definition of “arrangement”

57 In this Part, “arrangement” means

(a) a variation, resettlement or termination of a trust, or

(b) a variation or deletion of, or an addition to, the powers of trustees in relation to the management or administration of a trust.

Application of this Part

58 This Part applies whether the interest of a beneficiary in the trust property is vested or contingent or arises by operation of law.

Arrangement effective on unanimous consent

59 The beneficiaries of the trust may make an arrangement if

(a) they are all of full capacity, and

(b) they all agree to the arrangement.

Arrangement effective with court approval

60( 1) An arrangement requires the approval of the court if

(a) a beneficiary is unable to consent to the arrangement because he or she is

( i) a minor or otherwise not of full capacity,

( ii) an unborn person,

( iii) a person, whether ascertained or not, who has a vested or contingent interest and whose existence or whereabouts cannot be established despite reasonable measures having been taken, or

( iv) a person who has an interest that may arise by reason of the person being in a class of persons that may benefit from a power of appointment that may or must be exercised by the trustees or any other donee of the power,

(b) a beneficiary who has full capacity does not consent to an arrangement,

(c) a beneficiary is a charitable organization that is legally incapable in its own right of consenting to an arrangement, and

(d) the terms of the trust include a charitable purpose.

60( 2) If paragraph (1)(a) applies,

(a) the application for approval may be made by the trustees or a beneficiary, and

(b) the court may approve the arrangement if

( i) the court is satisfied that the arrangement is for the benefit of, or not unfair to, the person referred to in paragraph (1)(a), and

( ii) the beneficiaries that are of full capacity consent.

60( 3) If paragraph (1)(b) applies,

(a) the application for approval may be made by the trustees or a beneficiary, and

(b) the court may approve the arrangement if the court is satisfied that

( i) the arrangement will not be detrimental to the pecuniary interest of the person who has not consented,

( ii) a substantial majority of the beneficiaries, representing a substantial majority of the beneficial interests in the trust property as determined by the monetary value of those interests, have consented to the arrangement or have had the court approve the arrangement on their behalf under subsection (2), and

( iii) not approving the arrangement will be detrimental to the administration of the trust and to the interests of the beneficiaries referred to in subparagraph (ii).

60( 4) If paragraph (1)(c) or (d) applies,

(a) the application for approval may be made by the trustees or any other person the court considers has a sufficient interest, and

(b) the court may approve the arrangement if the court is satisfied that the arrangement is beneficial to, or not unfair to, the charitable organization or the charitable purpose.

Notice to Attorney General

61( 1) If a person applies to the court under subsection 60(4), the person shall serve notice of the application on the Attorney General at least 30 days before the date set for the hearing of the application.

61( 2) The Attorney General is entitled to appear and be heard on an application referred to in subsection (1).

PART 6

TRUSTEE COMPENSATION AND ACCOUNTS

Definitions

62 The following definitions apply in this Part.

“trust” includes the estate of a deceased person whether the person dies before or after this Part comes into force. (fiducie)

“trustee” includes an executor or administrator of the estate of a deceased person, whether or not the property included in the estate is subject to a trust. (fiduciaire)

Compensation of trustee

63( 1) A trustee is entitled to fair and reasonable compensation to be paid out of the trust property for services rendered as trustee of the trust.

63( 2) As part of the compensation to which a trustee is entitled under subsection (1), a trustee is entitled to charge fees at reasonable rates for those services that are reasonably necessary for the purpose of carrying out the trust if the trustee

(a) has professional skills, and

(b) has rendered services to the trust, apart from those generally associated with the office of trustee, that required the exercise of those professional skills.

63( 3) Each trustee is not presumed to be entitled to equal compensation under subsection (1).

63( 4) On application by a trustee during the administration of the trust or on the passing of accounts, the court may determine the amount of compensation to which the trustee is entitled under subsection (1).

63( 5) In determining a trustee’s compensation, the court may consider the following:

(a) the gross value of the trust property at the time compensation is claimed;

(b) any change in the gross value of the trust property since compensation was last claimed or the trust was created and the portion of that change attributable to decisions of the trustee;

(d) the complexity of the work involved in administering the trust, including whether or not any difficult or unusual questions were raised;

(e) any unusual difficulties or situations encountered in administering the trust;

(f) whether or not the trustee had to instruct on litigation relating to the trust;

(g) whether or not the trustee was required to manage a business, be the director of a corporation or perform other additional roles in administering the trust;

(h) the amount of skill, labour, responsibility, technological support and specialized knowledge required in administering the trust;

(i) the number and complexity of tasks relating to the administration of the trust that were delegated to others;

(j) the time expended in administering the trust;

(k) the number of trustees; and

(l) any other matter that the court considers relevant.

63( 6) A trustee may make an application under subsection (4) even if the trust instrument provides for the determination of the amount of compensation.

63( 7) Subsection (4) does not authorize the variation of a contract with respect to compensation between a settlor and a trustee if the contract is not part of the trust instrument, whether or not the contract is incorporated by reference in the trust instrument.

Interim compensation of trustees

64( 1) Subject to subsection (2), if there is at least one beneficiary who is of full capacity and has a vested beneficial interest in the trust property, a trustee may take payment out of the trust property during the administration of the trust in an amount that is fair and reasonable compensation for services rendered as trustee during the period to which the payment relates.

64( 2) Before taking a payment under subsection (1), the trustee shall deliver to the qualified beneficiaries and to the other trustees a notice stating

(a) the amount of the payment to be taken,

(b) a description of the services rendered, and

(c) that if no objection is received within a specified period of not less than 30 days the trustee will take the payment.

64( 3) If there is an objection, the trustee may

(a) take payment of a different amount agreed to by the trustees and the qualified beneficiaries,

(b) apply to the court to approve the amount, or

64( 4) On application by the trustee in accordance with subsection (3), the court may determine the amount of compensation, if any, that the trustee may be paid under subsection (1).

Reimbursement of expenses

65 During the administration of the trust and without prior authorization of the court, a trustee may reimburse himself or herself out of the trust property for expenses personally and properly incurred by the trustee in the administration of the trust.

Passing of accounts

66( 1) On application by a qualified beneficiary or a trustee, the court may order that the trustees’ accounts be passed on a single occasion or at intervals.

66( 2) The qualified beneficiary or trustee making an application under subsection (1) shall serve notice of the application on every qualified beneficiary, and on every trustee, who is not the applicant.

66( 3) If a qualified beneficiary on whom a notice must be served under subsection (2) is a minor or incompetent and the parent or guardian or the committee of the estate of the qualified beneficiary is not present at the passing of accounts, the court may determine, at the passing of accounts or at a subsequent hearing, that the qualified beneficiary is to be or is deemed to have been represented by another person who, at the passing of accounts,

(a) is of full capacity,

(b) has a substantially similar interest in the trust property, and

Repayment by trustee

67 If a trustee’s compensation as finally determined by the court is less than the total of the payments taken by the trustee without court authorization during the administration of the trust, the trustee shall restore the difference to the trust property.

Application of Part to judicial trustee

68 The provisions in an order under subsection 14(4) concerning the compensation of a judicial trustee prevail over any contrary provision of this Part.

PART 7

CHARITABLE TRUSTS AND CHARITABLE GIFTS

Power of court to vary charitable trusts and charitable gifts

69( 1) References in this section to charitable gifts include charitable gifts given before this Act comes into force.

69( 2) On an application by the trustees of a charitable trust or by the donor or the personal representatives of the donor of a charitable gift, the court may vary the terms of the trust or gift in accordance with subsection (3) if the court is of the opinion that

(a) an impracticability, impossibility or other difficulty hinders or prevents giving effect to the terms of the trust or gift, or

(b) a variation of the trust or gift would facilitate the carrying out of the intention of the settlor or donor.

69( 3) In an order under subsection (2), the court may

(a) vary, delete or add to the terms of the trust or gift,

(b) vary, delete or add to the powers of the trustees in relation to the administration of the trust, and

69( 4) If the court makes a finding under paragraph (2)(a), the court may vary, delete or add to the terms of the trust or gift to provide for a purpose that is as close as is practicable or reasonable to an existing purpose of the trust or gift.

69( 5) For the purposes of a variation under subsection (2), it is irrelevant whether the charitable intent of the settlor or donor was general or specific, except that, if the terms of the trust or gift expressly provide for a gift over or a reversion in the event of the lapse or other failure of a charitable purpose, the gift over or reversion, if otherwise valid, takes effect.

Power to order sale of property – charitable trust

70( 1) If, on application, the court finds that a specific property held in trust for a charitable purpose can no longer be used advantageously for the charitable purpose or should for any other reason be sold, the court may authorize the sale of the property and give directions concerning the conduct of the sale and the application of the proceeds from the sale.

70( 2) An order under subsection (1) may be made on application by any of the following:

(a) the Attorney General;

(b) the trustees; or

Notice to Attorney General

71 If an application is made for an order under section 69 or 70 by a person other than the Attorney General, the order may not be made unless the person has served notice of the application on the Attorney General at least 30 days before the date set for the hearing of the application.

Imperfect trust provisions – charitable and non-charitable purposes

72( 1) A trust that does not create an equitable interest in any person is not void by reason only that its purposes consist of a charitable purpose and a non-charitable purpose.

72( 2) The trustees may make an application to the court for an order under this section in relation to a trust described in subsection (1).

72( 3) On an application under subsection (2), the court may make one or more of the following orders:

(a) if the court determines that it is practicable to separate the charitable purpose from the non-charitable purpose,

( i) an order that the charitable purpose constitutes a charitable trust, and

( ii) an order that the terms of the disposition of property relating to the non-charitable purpose shall be construed as provided in section 73;

(b) if the court determines that it is not practicable to separate the charitable and non-charitable purposes of the trust, an order that the terms of the disposition of property purporting to create a trust shall be construed as provided in section 73.

72( 4) If the court makes an order under paragraph (3)(a), the trustees, subject to any order of the court and to any terms in the trust instrument regarding apportionment of the trust property or the manner in which a power of apportionment may be exercised, shall divide the trust property as the trustees consider reasonable in the circumstances between any new trusts and powers of appointment.

72( 5) If subparagraph (3)(a)(ii) or paragraph (3)(b) applies, the court may make orders for the purposes of subsection 73(3) or (4).

72( 6) Despite subsection (3), if the purposes of a trust consist of a charitable purpose linked conjunctively or disjunctively with a purpose that is not described specifically but is referred to only by an indefinite qualifying term, such as “charitable”, “benevolent”, “worthy” or “philanthropic”,

(a) the trust takes effect as a charitable trust, and

(b) the trustees shall apply all of the property of the trust as if only the charitable purpose had been set out in the trust instrument.

Deemed power to appoint

73( 1) This section applies in respect of a disposition described in subsection (2) that is made after this section comes into force.

73( 2) If the terms of a disposition of property purport to create a trust that does not create an equitable interest in any person and is for a specific non-charitable purpose, the terms of the disposition shall be construed, subject to this section, as constituting a power to appoint the income or the capital, as the case may be, for that purpose for a period not exceeding 21 years.

73( 3) Despite subsection (2), the terms of a disposition described in that subsection shall not be construed as constituting a power to appoint if the terms of the disposition provide for an illegal purpose or a purpose contrary to public policy.

73( 4) Despite subsection (2), if the disposition is expressed to be of perpetual duration, the court may declare the disposition to be void if the court is of the opinion that, by voiding the disposition, the result would be closer to the intention of the person disposing of the property than the period of validity provided by this section.

73( 5) An order under subsection (4) may be made on application by

(a) the person who purported to create a trust,

(b) the purported trustees, or

73( 6) If the income or capital that is subject to a power to appoint under subsection (2) is not fully expended within a period of 21 years, the person who would have been entitled to the property that is subject to the power to appoint, if the power to appoint had terminated at the expiration of the 21-year period, is entitled to that unexpended income or capital.

73( 7) If the disposition described in subsection (2) provides for the expenditure of all or a portion of the income or capital within a period that is less than 21 years and that income or capital is not fully expended within that period, the person who would have been entitled to the property that is subject to the power to appoint, if the power to appoint had terminated at the expiration of that period, is entitled to that unexpended income or capital.

73( 8) Nothing in this section applies to any discretionary power to transfer a beneficial interest in property to any person as a gift.

Trust property held for specific charitable purpose not to be seized

74 Property held in trust for a specific charitable purpose by a trustee or charitable corporation, as opposed to property held for the general purposes of the trust or corporation, is exempt from enforcement action under the Enforcement of Money Judgements Act to satisfy a judgment against that trustee or corporation, except to the extent that the judgment is based on a liability incurred by the trustee or corporation in relation to that specific charitable purpose.

PART 8

ADDITIONAL POWERS OF THE COURT

Non-performance by trustees

75( 1) If, on application by a beneficiary, the court is satisfied that the trustees have refused or failed to perform a duty, or to consider in good faith the exercise of a power, the court may

(a) order the trustees to perform the duty, or

(b) order the trustees to consider in good faith the exercise of the power.

75( 2) The court may order the trustees to satisfy the court that the trustees have performed the duty or given due consideration to the exercise of the power.

Directions

76( 1) The trustees may apply to the court for directions on any matter or question of fact, law or discretion arising in respect of a trust.

76( 2) Without limiting subsection (1), if the trustees are deadlocked on any matter arising in respect of a trust, a trustee may apply to the court for directions respecting the resolution of the matter.

76( 3) A trustee who acts in accordance with directions given under subsection (1) or (2) or subsection 14(3) discharges his or her duty with respect to the subject matter of the directions, unless the trustee is guilty of fraud, wilful concealment or misrepresentation in obtaining the directions.

Order re distribution of trust property

77( 1) On application by the trustees, the court may authorize the trustees to distribute trust property among the persons entitled to receive it, having regard only to

(a) the persons whom the trustees have been able to locate after making diligent efforts, and

(b) the claims or interests that the trustees have been able to determine after making diligent efforts.

77( 2) In making an order under subsection (1), the court may give directions respecting the procedure to be followed by the trustees in relation to a distribution of the trust property, including, without limitation, directions concerning the notice that shall be given to persons who may have an interest in the distribution of the trust property.

77( 3) An order under subsection (1) or a similar order under subsection 14(3) does not prejudice any right that a creditor or claimant may have to follow the trust property into the hands of a person who receives it.

Exemption clauses

78( 1) In this section, “exemption clause” means a provision of a trust instrument that excludes or restricts the liability of a trustee, including, without limitation, a provision that purports to

(a) make the enforcement of the liability of the trustee subject to restrictive or onerous conditions,

(b) permit a trustee to act despite a conflict between the trustee’s personal interest and the powers and duties of the office of trustee,

(c) exclude or restrict any right or remedy in respect of the liability of a trustee, or prejudice any person who pursues the right or remedy,

(d) exclude or restrict rules of evidence, or

(e) negate a duty that, in the absence of the provision, would otherwise be imposed on the trustee.

78( 2) Subject to subsection (3), an exemption clause in a trust instrument is effective, according to its terms, to relieve a trustee of liability for a breach of trust.

78( 3) The court may declare that any exemption clause contained in a trust instrument is ineffective in relation to a breach of trust, and that the liability of the trustee for breach of trust is as if the trust instrument did not contain the clause, if the court is of the opinion that the conduct of a trustee

(a) constitutes a breach of trust, and

(b) has been so unreasonable, irresponsible or incompetent that the trustee ought not to be relieved by the exemption clause from liability for the breach of trust.

Trustee may be relieved of liability for breach of trust

79 The court may relieve a trustee or former trustee either wholly or partly from personal liability for an actual or possible breach of trust if the court is satisfied that the trustee or former trustee has acted honestly and reasonably and ought fairly to be excused for the breach of trust.

Contribution and indemnity

80( 1) In this section, “breach of trust” includes any act or omission that gives rise to the liability of a trustee to the beneficiaries, regardless of whether the act or omission

(a) is intentional,

(b) is negligent, or

80( 2) This section only applies with respect to a breach of trust

(a) that is the subject of a legal proceeding commenced after this Act comes into force, or

(b) if no legal proceeding has been commenced, for which a claim for contribution or indemnity is made after this Act comes into force.

80( 3) Except as provided in this section, a trustee is not obliged to contribute to or indemnify a co-trustee in relation to a breach of trust by the co-trustee.

80( 4) If a trustee commits a breach of trust, the court, having regard to the responsibility of each other trustee for the loss to the trust, may determine the amount the court considers appropriate

(a) for which each trustee is liable in order to make good the loss to the trust, or

(b) that a trustee shall contribute to another trustee.

80( 5) The court may

(a) exempt a trustee from liability to make a contribution to another trustee, or

(b) order that any contribution due to, or to be recovered from, a trustee amounts to a complete indemnity.

80( 6) The powers conferred on the court by this section may be exercised even if the trustee claiming contribution or indemnity or the trustee against whom the claim is made, or both of them, have acted fraudulently in breach of trust.

80( 7) If a trustee who is in breach of trust is insolvent, the court may apportion among the solvent co-trustees, as the court considers appropriate, liability for making good the loss to the trust and any other losses.

80( 8) If the beneficiaries have settled with a trustee who is in breach of trust and who subsequently seeks contribution from a co-trustee, the court, in making any order for contribution and without limiting subsections (4) and (5), may consider whether the settlement was reasonable.

Beneficiaries instigating breach of trust

81( 1) If a trustee commits a breach of trust, and the breach was at the instigation or request of or with the consent of some but not all of the beneficiaries, the court may order the beneficiaries who instigated, requested or consented to the breach to contribute to or indemnify the trustee or persons claiming through the trustee.

81( 2) If the court makes an order under subsection (1), the court may order that all or part of the interest of the beneficiaries in the trust is to be used to satisfy the obligation to contribute to or indemnify the trustee or persons claiming through the trustee.

Payment into court

82( 1) The trustees may pay into or deposit in court trust money or trust securities.

82( 2) If a trustee is not available to receive a payment or transfer of trust money or trust securities and to give a receipt for the trust money or trust securities, the court may order, on application by a person in possession or control of the trust money or trust securities, that the trust money or trust securities be paid into or deposited in court.

82( 3) A receipt given by the proper officer of the court for any money or securities paid into or deposited in court under subsection (1) or (2) relieves the trustee or other person paying or depositing the money or securities from any further obligation relating to the money or securities.

82( 4) The court may make any orders it considers necessary or appropriate regarding the trust money or trust securities paid into or deposited in court under subsection (1) or (2) and for the administration of the trust to which the money or securities are subject.

Who may apply to court for order

83 Subject to this Act, an order of the court under this Act in respect of a trust may be made on application by any of the following persons:

(a) a beneficiary;

(b) a trustee; and

Costs paid by party or out of trust property

84( 1) The court may order costs of a proceeding under this Act, in the amounts or proportions the court may order, to be paid

(a) by or to a party to the proceeding, or

(b) out of the trust property.

84( 2) The court may order the costs of any transaction respecting trust property, in the amounts or proportions the court may order, to be paid out of the trust property.

84( 3) For the purposes of paragraph (1)(b) or subsection (2), the court may designate all or part of the trust property as the source for the payment.

PART 9

GENERAL

Determination of family relationships

85( 1) Subject to this section and to the terms of the trust instrument, if, in the administration of a trust, a question arises that depends on determining whether a person has, had or will have children or other relatives,

(a) the trustees may proceed on the assumption that a person will not have children when younger than 14 or older than 55, and

(b) other family relationships may be determined accordingly.

85( 2) If there is evidence that a person has or will have children when subsection (1) presumes that he or she will not, the trustees shall consider it.

85( 3) If there is evidence that a person will not or cannot have children at a time when subsection (1) presumes that he or she may, the trustees shall consider it.

85( 4) If a question is determined in accordance with this section, other related questions in the administration of the trust shall be determined on the same basis.

85( 5) If a determination in accordance with this section proves to be incorrect in light of facts that are discovered subsequently or events that occur subsequently, the court may make any order it considers appropriate to protect the right that a person would have had in the trust property if the question had not been determined as it was.

85( 6) The possibility that a person may adopt a child is relevant under this section if there is evidence that the person is actively trying to adopt.

85( 7) If, in relation to the rule against perpetuities, a question arises as to whether or when a person is able to have children, that question shall be determined in accordance with the provisions of this section relating to whether or when a person will have children.

Entitlement to income arising from contingent interest in trust property

86 Unless the trust instrument provides otherwise, if a beneficiary is entitled to a contingent interest in trust property, and that interest vests, the beneficiary is entitled to the income earned from that interest before it vested, subject to any other person’s interest in that income.

Effect of notice on purchaser

87( 1) In this section, “purchaser” means

(a) a purchaser for value,

(b) a secured party, or

87( 2) A purchaser of trust property takes the property subject to the terms of the trust if the purchaser, at the time of the purchase, has received notice that

(a) former trustees did not possess, or the current trustees do not possess, the power that is purported to be exercised with respect to that property, or

(b) a former trustee or current trustee has acted or is acting in breach of trust with respect to that property.

Protection of purchaser

88( 1) This section applies to a person who receives notice of the existence of a trust by reason only of the production or registration of a document evidencing

(a) an appointment of a trustee,

(b) a trustee ceasing to hold office, or

88( 2) A person to whom this section applies may assume without inquiry that the current trustees possess and any former trustees possessed the powers they exercised or purported to exercise over the trust property.

Person not liable if compliant with Act or order

89 Subject to this Act, a person who complies with this Act or an order made under it is not liable for a loss arising from anything done or permitted to be done under this Act or the order, unless it was done or permitted to be done in bad faith.

Receipt relieves person from further obligation

90 A receipt given by a trustee for any money or other property received by the trustee relieves the person paying or otherwise transferring the money or other property from any further obligation relating to the money or other property.

Representation of beneficiary

91( 1) If a beneficiary is a person for whom a committee of the estate has been appointed, the committee of the estate is, subject to the authority of the court under the Infirm Persons Act, the representative of the beneficiary for the purposes of this Act.

91( 2) Without limiting subsection (1), the following are validly taken or given if taken by, given to or given by the committee of the estate on behalf of the beneficiary:

(a) any action required or permitted to be taken by the beneficiary;

(b) any notice or report required or permitted to be given to the beneficiary; and

Agent of beneficiary

92 For the purposes of this Act, the following are validly taken or given if taken by, given to or given by an agent of the beneficiary acting within the scope of the authority conferred by that beneficiary:

(a) any action required or permitted to be taken by a beneficiary;

(b) any notice or report required or permitted to be given to a beneficiary; and

Notice – qualified beneficiary

93( 1) A beneficiary of a trust may deliver written notice to the trustees advising that the beneficiary wants to be a qualified beneficiary.

93( 2) A beneficiary may withdraw a notice under subsection (1) by delivering written notice of the withdrawal to the trustees.

PART 10

REPEAL AND COMMENCEMENT

Repeal of Trustees Act and regulation

94( 1) The Trustees Act, chapter T-15 of the Revised Statutes of New Brunswick, 1973, is repealed.

94( 2) New Brunswick Regulation 84-101 under the Trustees Act is repealed.

Commencement

95 This Act or any provision of it comes into force on a day or days to be fixed by proclamation.