(1) A new trustee may by registered deed be appointed in place of a trustee,
either original or substituted, and whether appointed by the Court or
otherwise.
(2) A new trustee may be so appointed in any of the following
cases, namely--
(a) where a trustee is dead,
(b) where a trustee remains out
of New South Wales for more than one year without having properly delegated
the execution of the trust,
(c) where a trustee remains out of New South
Wales for more than two years,
(d) where a trustee desires to be discharged
from all or any of the trusts or powers reposed in or conferred on the
trustee,
(e) where a trustee refuses or is unfit to act in such trusts or
powers, or is incapable of acting therein, or is a minor,
(f) where a trustee
is removed under a power contained in the instrument creating the trust,
(g)
where a trustee being a corporation is dissolved.
Provided that a new trustee
may not be appointed on the sole ground that a trustee remains out of New
South Wales for more than two years if such trustee has delegated the
execution of the trust pursuant to the Trustee and Wills (Emergency
Provisions) Act 1940 and such delegation remains in force.
(3) The person to
be appointed a trustee may be the person, or one of the persons, by whom or
with whose consent the appointment is or may be made.
(4) The appointment may
be made by the following persons, namely--
(a) by 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 by the surviving or continuing trustees or
trustee for the time being, or by the legal representative of the last
surviving or continuing trustee.
(5) The appointment may be made for the
whole or any part of the trust property, and on the appointment--
(a) two or
more trustees may be appointed concurrently,
(b) the number of trustees may
be increased, but not beyond four,
(c) a separate set of trustees may be
appointed for any distinct part of the trust property, that is to say, for any
part for the time being held on trusts distinct from those relating to any
other part or parts, notwithstanding that no new trustees or trustee are or is
to be appointed for other parts, provided that the number of trustees in any
separate set shall not exceed four,
(d) any existing trustee may be appointed
or remain one of the separate set of trustees,
(e) if only one trustee was
originally appointed, then one separate trustee may be appointed for the
distinct part,
(f) it shall not be obligatory to appoint more than one new
trustee where only one trustee was originally appointed, or to fill up the
original number of trustees where more than two trustees were originally
appointed.
(6) By the appointment a trustee in place of whom the new trustee
is appointed shall be discharged from the trust, provided that, except where
only one trustee was originally appointed, a trustee shall not be so
discharged unless there will be left after the discharge at least two
trustees, or the NSW Trustee, or a trustee company, to perform the trust.
(7)
Any conveyance 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.
(8) Every new trustee appointed under this section, as well before as
after all the trust property becomes by law or by conveyance or otherwise
vested in the new trustee, shall have the same powers authorities and
discretions, and may in all respects act as if the new trustee had been
originally appointed a trustee by the instrument, if any, creating the trust.
(9) The provisions of this section relative to a trustee who is dead include
the case of a person nominated trustee in a will but dying before the
testator.
(10) The provisions of this section relative to a person nominated
for the purpose of appointing new trustees apply, whether the appointment is
to be 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.
(11) The provisions of this section
relative to a continuing trustee include a refusing or retiring trustee, if
willing to act in the execution of the provisions of this section, provided
that--
(a) where there is in fact a continuing trustee, nothing in this
section shall authorise a refusing or retiring trustee to act apart from the
continuing trustee,
(b) if a refusing or retiring trustee does not act in the
execution of the provisions of this section, the fact that the refusing or
retiring trustee was willing to act shall not affect the validity of an
appointment made by any other person.
(12) Nothing in this section shall give
power to appoint any person as an executor or administrator.
(13) Except as
otherwise provided in subsection (12), this section applies only if and as far
as a contrary intention is not expressed in the instrument, if any, creating
the trust, and shall have effect subject to the terms of that instrument and
to the provisions therein contained.
(14) This section applies to trusts
created either before or after the commencement of this Act, and extends to
the appointment of a new trustee where the case for the appointment arose
before the commencement of this Act.
(15) An appointment of a new trustee
made before the commencement of this Act, under a power conferred by statute
or by the instrument, if any, creating the trust, shall not be deemed to be
invalid for the reason only that on the appointment the number of the trustees
was increased or decreased, unless the increase or decrease was expressly
forbidden by statute or by that instrument, but nothing in this subsection
shall be deemed to invalidate any appointment of a new trustee made before the
commencement of this Act.
