New South Wales Consolidated Acts

TRUSTEE ACT 1925 - SECT 6

6 New trustee

(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.