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LAWS OF MALAYSIA
REPRINT
Act 208
TRUSTEE ACT 1949
Incorporating all amendments up to 1 January 2006
PUBLISHED BY
THE COMMISSIONER OF LAW REVISION, MALAYSIA
UNDER THE AUTHORITY OF THE REVISION OF LAWS ACT 1968
IN COLLABORATION WITH
PERCETAKAN NASIONAL MALAYSIA BHD
2006
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TRUSTEE ACT 1949
First enacted
... ... ... ... ... ...
1949 (Ordinance No. 66
of 1949); and 1965 (Act
No. 36 of 1965)
Revised
... ... ... ... ... ... ...
1978 (Act 208 w.e.f.
15 November 1978)
PREVIOUS REPRINT
First Reprint
...
...
...
...
...
2001
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LAWS OF MALAYSIA
Act 208
TRUSTEE ACT 1949
ARRANGEMENT OF SECTIONS
PART I
PRELIMINARY
Section
1.
Short title
2.
Application
3.
Interpretation
PART II
INVESTMENTS
4.
Authorized investments
5.
Further powers of investment of trustees
6.
Duty of trustees in choosing investments
7.
Statutory powers of investment
8.
Purchase at premium of redeemable stocks; change of character of
investments
9.
Discretion of trustees
10.
Power to retain investment which has ceased to be authorized
11.
Investment in bearer securities
12.
Loans and investments by trustees not chargeable as breaches of trust
13.
Liability for loss by reason of improper investment
14.
Powers supplementary to powers of investment
15.
Power to deposit at bank and to pay calls
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PART III
GENERAL POWERS OF TRUSTEES AND PERSONAL
REPRESENTATIVES
General Powers
Section
16.
Power of trustees for sale to sell by auction, etc.
17.
Power to sell subject to depreciatory conditions
18.
Power of trustees to give receipts
19.
Power to compound liabilities
20.
Power of trustees of renewable leaseholds to renew and raise money
for the purpose
21.
Power to raise money by sale, charge, etc.
22.
Protection to purchasers and chargees dealing with trustees
23.
Devolution of powers or trust
24.
Power to insure
25.
Application of insurance money where policy kept up under any trust,
power or obligation
26.
Deposit of documents for safe custody
27.
Reversionary interests, valuations and audit
28.
Power to employ agents
29.
Power to concur with others
30.
Power to delegate trusts during absence abroad
Indemnities
31.
Protection against liability in respect of rents and covenants
32.
Protection by means of advertisement
33.
Protection in regard to notice
34.
Exoneration of trustees in respect of certain powers of attorney
35.
Implied indemnity of trustees
Maintenance, Advancement and Protective Trusts
36.
Power to apply income for maintenance and to accumulate surplus
income during a minority
37.
Power of advancement
38.
Protective trusts
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PART IV
APPOINTMENT AND DISCHARGE OF TRUSTEES
Section
39.
Limitation of the number of trustees
40.
Power of appointing new or additional trustees
41.
Supplemental provisions as to appointment of trustees
42.
Evidence as to a vacancy in a trust
43.
Retirement of trustee without a new appointment
44.
Vesting of trust property in new or continuing trustees
PART V
POWERS OF THE COURT
45.
Power of Court to appoint new trustees
46.
Power to authorize remuneration
47.
Powers of new trustee appointed by the Court
Vesting Orders
48.
Vesting orders of land
49.
Orders as to contingent rights of unborn persons
50.
Vesting order in place of conveyance by minor
51.
Vesting order consequential on order for sale of land
52.
Vesting order consequential on judgment for specific performance, etc.
53.
Effect of vesting order
54.
Power to appoint person to convey
55.
Vesting orders as to stock and thing in action
56.
Vesting orders of charity or society property
57.
Vesting orders in relation to minor's beneficial interest
58.
Orders made upon certain allegations to be conclusive evidence
Jurisdiction to make other Order
59.
Power of Court to authorize dealings with trust property
60.
Persons entitled to apply for orders
61.
Power to give judgment in absence of a trustee
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Section
62.
Power to charge costs on trust estate
63.
Power to relieve trustee from personal liability
64.
Power to make beneficiary indemnity for breach of trust
Payment into Court
65.
Payment into Court by trustees
PART VI
GENERAL PROVISIONS
66.
Indemnity
67.
Effect of order of Court
68.
Validation of certain powers of trustees
69.
Repeal
SCHEDULE
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LAWS OF MALAYSIA
Act 208
TRUSTEE ACT 1949
An Act relating to Trustees.
[Peninsular Malaysia--31 December 1949;
Sabah and Sarawak--30 June 1965]
PART I
PRELIMINARY
Short title
1. This Act may be cited as the Trustee Act 1949.
Application
2. (1) This Act, except where otherwise expressly provided, applies
to trusts including, so far as this Act applies thereto, executorships
and administratorships constituted or created either before or after
the commencement of this Act.
(2) The powers conferred by this Act on trustees are in addition
to the powers conferred by the instrument, if any, creating the
trust, but those powers, 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.
(3) This Act does not affect the legality or validity of anything
done before the commencement of this Act, except as otherwise
expressly provided.
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Interpretation
3. (1) In this Act, unless the context otherwise requires--
"approved company" means a company--
(a) incorporated in Malaysia or, if incorporated prior to
Malaysia Day, in Sabah or Sarawak, and having a place
of business in Malaysia;
(b) having as its sole or primary object the promotion of
home ownership by advancing for the purchase of lands
and buildings sums of money, repayable by instalments
of principal and interest over a fixed period of years, not
exceeding at any time the valuation of such lands and
buildings made by an approved valuer; and
(c) approved by the Minister by notification in the Gazette
for the purpose of receiving loans from trustees in
accordance with paragraph 4(1)(e);
"approved valuer" means a registered or licensed surveyor or a
licensed appraiser and includes any other person approved by the
Minister;
"authorized investments" means investments authorized by the
instrument, if any, creating the trust for the investment of money
subject to the trust, or by law;
" c h a r g e " , "chargee" and "chargor" include "mortgage",
"mortgagee" and "mortgagor" respectively, and further include
and relate to every estate and interest regarded in equity as merely
a security for money and every person lawfully claiming under the
original chargee;
"contingent right" as applied to land, includes a contingent or
executory interest, a possibility coupled with an interest, whether
the object of the gift or limitation of the interest or possibility is
or is not ascertained, also a right of entry, whether immediate or
future and whether vested or contingent;
"convey" and "conveyance" as applied to any person include the
execution by that person of every necessary or suitable assurance
( i n c l u d i n g an assent) for conveying, assigning, appointing,
surrendering, or otherwise transferring or disposing of land whereof
he is proprietor or possessed or wherein he is entitled to a contingent
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right, either for his whole interest or for any less interest, together
with the performance of all formalities required by law to the
validity of the conveyance;
"the Court" means the High Court in Malaya or the High Court
in Sabah and Sarawak, as the case may be;
"instrument" includes a written law;
"land" means immovable property and includes any interest
therein and also an undivided share of land;
"material" date means--
(a) in respect of Peninsular Malaysia (other than Malacca
and Penang), the 9th day of September 1932;
(b) in respect of the States of Malacca and Penang, the 1st
day of September 1929;
(c) in respect of the State of Sabah (other than Labuan), the
30th day of April 1953;
(d) in respect of Labuan, the 1st day of September 1929; and
(e) in respect of the State of Sarawak, the 30th day of June
1965;
"mentally disordered person" means any person found by due
course of law to be unsound mind and incapable of managing his
affairs;
"pay" and "payment" as applied in relation to stocks and securities
and in connection with the expression "into Court", include the
deposit or transfer of the same in or into Court;
"person of unsound mind" means any person, not a minor, who,
not having been found to be a mentally disordered person, is
incapable from infirmity of mind of managing his own affairs;
"personal representative" means the executor, original or by
representation, or administrator for the time being of a deceased
person;
"possession" includes receipt of rents and profits or the right to
receive the same, if any; "income" includes rents and profits; and
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"possessed" applies to receipt of income of and to any vested
interest less than a life interest in possession or in expectancy in
any land;
"property" includes movable and immovable property, and any
interest in any property, movable or immovable, and any debt, and
any thing in action, and any other right or interest, whether in
possession or not;
"rights" includes estates and interests;
"sale" includes an exchange;
"securities" includes stocks, funds and shares; and so far as
relates to payments into Court has the same meaning as in the
written law relating to funds in Court; and "securities payable to
bearer" includes securities transferable by delivery or by delivery
and endorsement;
"solicitor" means advocate and solicitor in Peninsular Malaysia
or advocate in Sabah or Sarawak, as the case may be;
"stock" includes fully paid up shares and, so far as relates to
vesting orders made by the Court under this Act, includes any
fund, annuity, or security transferable in books kept by any
corporation, company, association, or society, or by instrument of
transfer, either alone or accompanied by other formalities, and any
share or interest therein;
"transfer", in relation to stock or securities, includes the execution
and performance of every instrument, power of attorney, act, and
thing on the part of the transferor to effect and complete the title
in the transferee;
"trust" does not include the duties of chargee, but with this
exception the expressions "trust" and "trustee" extend 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", where the context
admits, includes a personal representative, and "new trustee" includes
an additional trustee;
"trust corporation" means the Public Trustee* or a corporation
appointed by the Court in any particular case to be a trustee, or
registered as a trust company under the Trust Companies Act 1949
[Act 100];
*NOTE--The words "Public Trustee" is now refered to as"corporation" under the name of Amanah
Raya Berhad incorporated under the Companies Act 1965 [Act 125] pursuant to sectionsee
section 2 and subsection 43(3) of the Public Trust Corporation Act 1995 [Act 532].
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"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; "trustees for sale" means the persons (including
a personal representative) holding land on trust for sale.
*"Peninsular Malaysia" has the meaning assigned by section 3
Interpretation Acts 1948 and 1967 [Act 388], and includes the
Federal Territory.
(2) In relation to the application of this Act to Sabah and
Sarawak, references in this Act to any written law in force in
Peninsular Malaysia or any part thereof shall--
(a) if such written law has been extended to apply to Sabah
and Sarawak, be construed as references to that law as
so extended; or
(b) if such written law has not been extended to Sabah or
Sarawak, be construed as reference to the corresponding
written law, if any, in force in Sabah or Sarawak, as the
case may be.
(3) References in this Act to the commencement of this Act
mean, in the case of Peninsular Malaysia, 31st day of December
1949; and, in the case of Sabah and Sarawak, 30th day of June
1965.
PART II
INVESTMENTS
Authorized investments
4. (1) A trustee may invest any trust funds in his hands, whether
at the time in a state of investment or not, in manner following:
(a) in any of the securities of the Federal Government or the
Government of the State of Sabah or the State of Sarawak
or of the Republic of Singapore;
(b) in any securities the interest on which is or shall be
guaranteed by Parliament or by the Federal Government;
*NOTE--All references to "West Malaysia" shall be construed as references to "Peninsular Malaysia"­
see Interpretation (Amendment) Act 1997 [Act A996], subsection 5(2).
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(c) in or upon titles to immovable property in Malaysia, such
titles being freehold titles or grants in perpetuity or leases
(other than mining leases) for a term thereof sixty years
at least is unexpired at the time of such investment:
Provided that--
(i) the land to which any such title relates shall be
situate within the limits of any City, Municipality,
Town Council or Town Board area; and
(ii) there be erected on the land to which such title
relates houses or other buildings the gross rental
whereof, together with the land appurtenant thereto,
is at the time of such investment not less than
seven per centum of the purchase price of the land,
in the case of the purchase price, or of the value
of such land, as ascertained under paragraph 12(1)(a),
in the case of a charge.
(d) in fixed interest securities issued in Malaysia with the
approval of the Treasury by any public authority established
under federal or State law;
(e) in loans to an approved company;
(f) in loans the principal and interest on which is or shall
be guaranteed by the Federal Government,
and may also from time to time vary any such investment as
aforesaid.
(2) No trust funds shall be invested under paragraph (1)(e)
unless--
(a) the paid up ordinary share capital of the approved company
is not less than five million ringgit; and
(b) the approved company has paid a dividend at the rate of
not less than five per centum upon such ordinary share
capital during each of the last three years prior to the
time of investment, and where the approved company is
a company which has acquired the assets and liabilities
of another approved company, payment of a dividend by
that other company during each of the last three years
prior to the time of such acquisition shall be treated as
payment by the approved company; and
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(c) the total amount of the borrowings of the approved company
from all sources, whether trustee or not, accepted by the
approved company on loan and deposit, and including
interest due and thereon not repaid by the approved
company, does not at any time exceed two thirds of the
amount, excluding prospective interest, for the time being
secured to the approved company from its borrowers.
(3) Paragraph (1)(e) shall not be taken to override the provisions
of paragraph 4(2)(c) of the *Employees Provident Fund Act 1951
[Act 272] (which confer express powers on the Trustees of the
Employees Provident Fund to invest in loans to an approved
company).
Further powers of investment of trustee
5. (1) The investments specified in section 4 shall include any
security to which this section applies and any units, or any shares
of the investments subject to the trust, of a unit trust scheme
approved by the Yang di-Pertuan Agong by notification published
in the Gazette.
(2) Subject to this section, this section applies to any securities
issued by a company (whether incorporated in Malaysia or elsewhere)
prices for which are quoted on the Stock Exchange of Malaysia.
(3) This section does not apply to securities of any company
unless--
(a) the total issued and paid-up share capital of the company
is, or if converted into ringgit from currency other than
ringgit is, five million ringgit or more; and
(b) the company has in each of the five years immediately
preceding the calendar year in which the investment is
made paid a dividend on all the shares issued by the
company, excluding any shares issued after the dividend
was declared and any shares which by their terms of
issue did not rank for the dividend for that year,
and the rate exchange in relation to the conversion of issued and
paid-up share capital shall be that certified by a bank manager, as
defined in paragraph 6(3)(b), to be appropriate on the day a trustee
exercises his power to invest in such securities.
*NOTE--Employees Provident Fund Act 1951 [Act 272] has been repealed by Employees Provident
Fund Act 1991 [Act 452see paragraph 75(a) of Act 452.
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(4) For the purposes of paragraph 3(b), a company formed--
(a) to take over the business of another company or other
companies; or
(b) to acquire the securities, or control, of another company
or other companies; or
(c) for either of those purposes and for other purposes,
shall be deemed to have paid a dividend as mentioned in that
paragraph in any year in which such a dividend has been so paid
by the other company or all of the other companies, as the case
may be.
(5) This section does not apply to shares or debenture stock not
fully paid up, except shares or stock which by the terms of issue
are required to be fully paid up within nine months of the date of
issue.
(6) No provision relating the powers of the trustee contained in
any instrument made before 30th day of June 1965 shall limit the
powers conferred by this section, but those powers are exercisable
only in so far as a contrary intention is not expressed in any
instrument so relating which is made after 29th day of June 1965.
Duty of trustees in choosing investments
6. (1) In the exercise of any of his powers of investment a trustee
shall have regard--
(a) to the need for diversification of the investments of the
trust, in so far as is appropriate to the circumstances of
the trust, and to the degree of risk attaching to the holding
of any particular investment or of investments of any
particular description; and
(b) to the suitability to the trust of investment of the description
of investment proposed and of the investment proposed
as an investment of that description.
(2) A trustee whose power of investment is restricted to the
making of investments specified in section 4, shall, before exercising
any power to invest in such securities, units or shares as are
mentioned in section 5, obtain proper advice on the question whether
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the investment is satisfactory having regard to the matters mentioned
in paragraph (1)(a) and (b), and shall consider the advice obtained:
Provided that this subsection shall not apply to the Public Trustee*
and to trust companies defined in the Trust Companies Act 1949.
(3) (a) For the purposes of subsection (2) proper advice is
either the advice of a stock broker obtained through the trustee's
bank manager or the advice of an authorized accountant.
(b) In this subsection "bank manager" means the manager of a
bank (including a branch of a bank) licensed under section 3 of
the Banking Act 1973 [Act 102]**, and "authorized accountant"
means a person authorized in writing under any written law relating
to companies, to be an auditor of companies generally.
(4) A trustee retaining any such security, unit or part as is
mentioned in section 5 shall determine at what intervals the
circumstances, and in particular the nature of the investment, make
it desirable to obtain such advice as aforesaid, and shall obtain and
consider such advice accordingly.
(5) A trustee shall not be treated as having complied with
subsections (2) to (4) unless the advice was given, or has been
subsequently confirmed, in writing.
(6) Subsections (2) to (4) shall not apply to one of two or more
trustees where he is the person giving the advice required by this
section to his co-trustee or co-trustees.
Statutory powers of investment
7. (1) In the case of trustees constituted under any written law,
section 5 shall apply only in so far as the Minister may direct.
(2) Where any body of persons, not being trustees, have under
any written law power (however expressed) to make the like
investments as trustees are for the time being authorized by law
to make, section 5 shall not apply to the body except in so far as
the Minister may direct.
*NOTE--The words "Public  Trustee" is now refered to as "corporation" under the name of
Amanah Raya Berhad incorporated under the Companies Act 1965 [Act 125] pursuant to section
3­see section 2 and subsection 43(3) of the Public Trust Corporation Act 1995 [Act 532].
**NOTE--Banking Act 1973 [Act 102] has been repealed by Banking and Financial Institutions
Act 1989 [Act 372see subsection 128(1) of Act 372.
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(3) The Minister may direct that any specified body of persons,
not being trustees constituted under any written law, which apart
from this subsection would not have the like power of investment
as is conferred by section 5, shall have that power to such extent
as may be specified in the direction.
(4) Any direction under this section may be given generally or
in a particular case, and unconditionally or subject to conditions.
Purchase at premium of redeemable stocks; change of character
of investments
8. (1) A trustee may under the powers of this Act invest in any
of the securities mentioned or referred to in section 4, notwithstanding
that the same may be redeemable, and that the price exceeds the
redemption value.
(2) A trustee may retain until redemption any redeemable stock,
fund, or security which may have been purchased in accordance
with the powers of this Act, or any written law replaced by this
Act.
Discretion of trustees
9.  Every power conferred by sections 4 and 8 shall be exercised
according to the discretion of the trustee, but subject to any consent
or direction, with respect to the investment of the trust funds,
required by the instrument, if any, creating the trust or by any
written law.
Power to retain investment which has ceased to be authorized
10.  A trustee shall not be liable for breach of trust by reason only
of his continuing to hold an investment which has ceased to be an
investment authorized by the trust instrument or by this Act.
Investment in bearer securities
11. (1) A trustee may, unless expressly prohibited by the instrument
creating the trust, retain or invest in securities payable to bearer
which, if not so payable, would have been authorized investments.
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(2) Securities payable to bearer retained or taken as an investment
by a trustee shall, until sold, be deposited by him for safe custody
and collection of income with a banker or banking company.
(3) A direction that investments shall be retained or made in the
name of a trustee shall not, for the purposes of this section, be
deemed to be such an express prohibition as aforesaid.
(4) A trustee shall not be responsible for any loss incurred by
reason of such deposit, and any sum payable in respect of such
deposit and collection shall be paid out of the income of the trust
property.
Loans and investments by trustees not chargeable as breaches
of trust
12. (1) 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
report as to the value of the property made by a person
whom he reasonably believed to be an able practical
surveyor or valuer instructed and employed independently
of any owner of the property, whether such surveyor or
valuer carried on business in the locality where the property
is situate or elsewhere;
(b) that the amount of the loan does not exceed two third
parts of the value of the property as stated in the report;
and
(c) that the loan was made under the advice of the surveyor
or valuer expressed in the report.
(2) A trustee lending money on the security of any leasehold
property shall not be chargeable with breach of trust only upon the
ground that in making the loan he dispensed either wholly or
partly with the production or investigation of the lessor's title.
(3) A trustee shall not be chargeable with breach of trust only
upon the ground that in effecting the purchase, or in lending
money upon the security, of any property he has accepted a shorter
title than the title which a purchaser is, in the absence of a special
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contract, entitled to require, if in the opinion of the Court the title
accepted be such as a person acting with prudence and caution
would have accepted.
(4) This section applies to transfers of existing securities as
well as to new securities and to investments made before as well
as after the commencement of this Act.
Liability for loss by reason of improper investment
13. (1) Where a trustee improperly advances trust money on the
security of a charge 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 authorized
investment for the smaller sum, and the trustee shall only be liable
to make good the sum advanced in excess thereof with interest.
(2) This section applies to investments made before as well as
after the commencement of this Act.
Powers supplementary to powers of investment
14. (1) Trustees lending money on the security of any property
on which they can lawfully lend may contract that such money
shall not be called in during any period not exceeding five years
from the time when the loan was made, provided interest be paid
within a specified time not exceeding ten days after every monthly
or other day on which it becomes due, and provided there be no
breach of any covenant by the chargor contained in the instrument
of charge for the maintenance and protection of the property.
(2) On a sale by trustees of land the trustees may, where the
proceeds are liable to be invested, contract that the payment of any
part, not exceeding two-thirds, of the purchase money shall be
secured by charge of the land sold, with or without the security
of any other property, but the charge, if any buildings are comprised
therein, shall contain a covenant by the chargor to keep the buildings
insured against loss or damage by fire to the full value thereof.
(3) The trustees shall not be bound to obtain any report as to
the value of the land or other property to be comprised in such
charge, or any advice as to the making of the loan, and shall not
be liable for any loss which may be incurred by reason only of
the security being in sufficient at the date of the charge.
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(4) Where any securities of a company are subject to a trust,
the trustees may concur in any scheme or arrangement--
(a) for the reconstruction of the company;
(b) or the sale of all or any part of the property and undertaking
of the company to another company;
(c) for the acquisition of the securities of the company, or
of control, by another company;
(d) for the amalgamation of the company with another
company;
(e) 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 they 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 in lieu of or
in exchange for all or any of the first-mentioned securities; and
the trustees 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 they could have
properly retained the original securities.
(5) If any conditional or preferential right to subscribe for any
securities in any company is offered to trustees in respect of
any holding in the company, they may as to all or any of those
securities, either exercise such right and apply capital money subject
to the trust in payment of the consideration, or renounce such
right, or assign for the best consideration that can be reasonably
obtained the benefit of such right or the title thereto to any person,
including any beneficiary under the trust, without being responsible
for any loss occasioned by any act or thing so done by them in
good faith:
Provided that the consideration for any such assignment shall
be held as capital money of the trust.
(6) The powers conferred by this section shall be exercisable
subject to the consent of any person whose consent to a change
of investment is required by law or by the instrument, if any,
creating the trust.
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(7) Where the loan referred to in subsection (1), or the sale
referred to in subsection (2), is made under the order of the Court,
the powers conferred by those subsections respectively shall apply
if and as far as the Court may by order direct.
Power to deposit at bank and to pay calls
15. (1) Trustees may, pending the negotiation and preparation of
any charge, or during any other time while an investment is being
sought for, pay any trust money into a bank to a deposit or other
account and all interest, if any, payable in respect thereof shall be
applied as income.
(2) Trustees 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 OF TRUSTEES AND PERSONAL
REPRESENTATIVES
General Powers
Power of trustees for sale to sell by auction, etc.
16. (1) Where a trust for sale or a power for 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
charges or not, and either together or in lots, by public auction or
by private contract, subject to any such conditions respecting title
or evidence of title or other matter as the trustee thinks fit, with
power to vary any contract for sale, 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, whether the division
is horizontal, vertical, or made in any other way.
Power to sell subject to depreciatory conditions
17. (1) No sale made by a trustee shall be impeached by any
beneficiary upon the ground that any of the conditions subject to
which the sale was made may have been unnecessarily depreciatory,
unless it also appears that the consideration for the sale was rendered
inadequate.
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Trustee
(2) No sale made by a trustee shall, after the execution of the
conveyance, be impeached as against the purchaser upon the ground
that any of the conditions subject to which the sale was made may
have been unnecessarily depreciatory, unless it appears that the
purchaser was acting in collusion with the trustee at the time when
the contract for sale was made.
(3) No purchaser, upon any sale made by a trustee, shall be at
liberty to make any objection against the title upon any of the
grounds aforesaid.
(4) This section applies to sales made before or after the
commencement of this Act.
Power of trustees to give receipts
18. (1) 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 him from seeing to the
application or being answerable for any loss or misapplication
thereof.
(2) This section does not, except where the trustee is a trust
corporation, enable a sole trustee to give a valid receipt for the
proceeds of sale or other capital money arising under a trust for
sale of land.
(3) Notwithstanding anything to the contrary in a disposition on
trust for sale of land or in the settlement of the net proceeds, the
proceeds of sale or other capital money arising under the disposition
shall not be paid to or applied by the direction of fewer than two
persons as trustees of the disposition, except where the trustee is
a trust corporation, but this subsection does not affect the right of
a sole personal representative as such to give valid receipts for or
direct the application of the proceeds of sale or other capital
money aforesaid; nor, except where capital money arises on a
transaction, render it necessary to have more than one trustee.
(4) This section applies notwithstanding anything to the contrary
in the instrument, if any, creating the trust.
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Power to compound liabilities
19.  A personal representative, or two or more trustees acting
together, or a sole acting trustee where by the instrument, if any,
creating the trust, or by written law, a sole trustee is authorized
to execute the trust and powers reposed in him, may, if and as he
or they think fit--
(a) accept any property, before the time at which it is made
transferable or payable;
(b) sever and apportion any blended trust funds or property;
(c) pay or allow any debt or claim on any evidence that he
or they think sufficient;
(d) accept any composition or any security for any debt, or
for any property, claimed;
(e) allow any time for payment of any debt; or
(f) compromise, compound, abandon, submit to arbitration
or otherwise settle any debt, account, claim or thing
whatever relating to the testator's or intestate's estate or
to the trust,
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 or them seem expedient,
without being responsible for any loss occasioned by any act or
thing so done by him or them in good faith.
Power of trustees of renewable leaseholds to renew and raise
money for the purpose
20. (1) A trustee of any leaseholds which are renewable from
time to time either under any covenant or contract or by custom
or usual practice may, if he thinks fit, and shall, if thereto required
by any person having any beneficial interest, present or future or
contingent, in the leaseholds, use his best endeavours to obtain
from time to time a renewed leased of the same property on the
accustomed and reasonable terms and for that purpose may from
time to time make or concur in making a surrender of the lease
for the time being subsisting and do all such other acts as are
requisite:
Provided that, where by the terms of the settlement or will the
person in possession for his life or other limited interest is entitled
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Trustee
to enjoy the same without any obligation to renew or to contribute
to the expense of renewal, this section shall not apply unless the
consent in writing of that person is obtained to the renewal on the
part of the trustee.
(2) If money is required to pay for the renewal, the trustee
effecting the renewal may pay the same out of any money then in
his hands in trust for the persons beneficially interested in the
lands to be comprised in the renewed lease, and if he has not in
his hands sufficient money for the purpose he may raise the money
required by charge of the property to be comprised in the renewed
lease or of any other property for the time being subject to the
trusts to which that property is subject; and no person advancing
money upon a charge purporting to be under this power shall be
bound to see that the money is wanted or that no more is raised
than is wanted for the purpose or otherwise as to the application
thereof.
Power to raise money by sale, charge, etc.
21. (1) Where trustees are authorized by the instrument, if any,
creating the trust or by law to pay or apply capital money subject
to the trust for any purpose or in any manner, they shall have and
shall be deemed always to have had power to raise the money
required by sale, conversion, calling in, or charge of all or any part
of the trust property for the time being in possession.
(2) This section applies notwithstanding anything to the contrary
contained in the instrument, if any, creating the trust, but does not
apply to trustees of property held for charitable purposes.
Protection to purchasers and chargees dealing with trustees
22.  No purchaser or chargee, paying or advancing money on a
sale or charge purporting to be made under any trust or power
vested in trustees, 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.
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Devolution of powers or trust
23. (1) Where a power of trust is given to or imposed on two or
more trustees jointly, the same may be exercised or performed by
the survivors or survivor of them for the time being.
( 2 ) U n t i l the appointment of new trustees, the personal
representatives or representative for the time being of a sole trustee,
or, where there were two 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 or trustee for the time being of the trust.
(3) In this section "personal representative" does not include an
executor who has renounced or has not proved.
Power to insure
24. (1) A trustee may insure against loss or damage by fire any
building or other insurable property to any amount, including the
amount of any insurance already on foot, up to the full value of
the building or property, and pay the premiums for the insurance
out of the income thereof or out of the income of any other property
subject to the same trusts without obtaining the consent of any
person who may entitled wholly or partly to the income.
(2) This section does not apply to any building or property
which a trustee is bound forthwith to convey absolutely to any
beneficiary upon being requested to do to.
Application of insurance money where policy kept up under
any trust, power or obligation
25. (1) Money receivable by trustees or any beneficiary under a
policy of insurance against the loss or damage of 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 tenant for life
impeachable for waste, be capital money for the purpose of the
trust.
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Trustee
(2) If any such money is receivable by any person, other than
the trustees of the trust, that person shall use his best endeavour
to recover and receive the money, and shall pay the net residue
thereof after discharging any costs of recovering and receiving it,
to the trustees of the trust, or if there are no trustees capable of
giving a discharge, into the Court.
(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; and
(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) Such money, or any part thereof, may also be applied by the
trustees, or, if in the Court, under the direction of the Court, in
rebuilding, reinstating, replacing, or repairing the property loss or
damaged, but any such application by the trustees 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 contained in this section prejudices or affects 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 right of any chargee, lessor, or lessee,
whether under any written law, 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.
Deposit of documents for safe custody
26.  Trustees may deposit any documents held by them, relating
to the trust, or the trust property, with any banker or banking
company or any other company whose business includes the
undertaking of the safe custody of documents, and any sum payable
in respect of such deposit shall be paid out of the income of the
trust property.
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Reversionary interests, valuations and audit
27. (1) Where trust property includes any share or interest in
property not vested in the trustees, or the proceeds of the sale of
any such property, or any other thing in action, the trustees on the
same falling into possession, or becoming payable or transferable
may--
(a) agree or ascertain the amount or value or any part in such
manner as they may think fit;
(b) accept in or towards satisfaction thereof, at the market
or current value, or upon any valuation or estimate of
value which they may think fit, any authorized investments;
(c) allow any deductions for duties, costs, charges and expenses
which they may think proper or reasonable;
(d) execute any release in respect of the premises so as
effectually to discharge all accountable parties from all
liability in respect of any matters coming within the
scope of such release,
without being responsible in any such case for any loss occasioned
by any act or thing so done by them in good faith.
(2) The trustees shall not be under any obligation and shall not
be chargeable with any breach of trust by reason of any omission--
(a) to apply for any stop or other like order upon any securities
or other property out of or on which such share or interest
or other thing in action as aforesaid is derived, payable
or charged; or
(b) to take any proceedings on account of any act, default,
or neglect on the part of the persons in whom the securities
or other property or any of them or any part thereof are
for the time being, or had at any time been, vested,
unless and until required in writing so to do by some person, or
the guardian of some person, beneficially interested under the
trust, and unless also due provision is made to their satisfaction
for payment of the costs of any proceedings required to be taken:
Provided that nothing in this subsection shall relieve the trustees
of the obligation to get in and obtain payment or transfer of the
share or interest or other thing in action on the same falling into
possession.
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Trustee
(3) Trustees 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 any written law, from time to time (by duly qualified agents)
ascertain and fix the value of any trust property in such manner
as they think proper, and any valuation so made in good faith shall
be binding upon all persons interested under the trust.
(4) Trustees may, in their absolute discretion, from time to
time, but not more than once in every year unless the nature of
the trust or any special dealings with the trust property make a
more frequent exercise of the right reasonable, cause the accounts
of the trust property to be examined or audited by an independent
accountant, and shall, for that purpose, produce such voucher and
give such information to him as he may require, and the costs of
the examination or audit, including the fee of the auditor, shall be
paid out of the capital or income of the trust property, or partly
in one way and partly in the other as the trustees, in their absolute
discretion, think fit, but, in default of any direction by the trustees
to the contrary in any special case, costs attributable to capital
shall be borne by capital and those attributable to income by
income.
Power to employ agents
28. (1) Trustees or personal representatives may, instead of acting
personally, employ and pay an agent, whether a solicitor, banker,
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 testator's or intestate's estate, including
the receipt and payment of money, 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.
(2) Trustees or personal representatives may appoint any person
to act as their agent or attorney for the purpose of selling, converting,
collecting, getting in, and executing and perfecting assurances of,
or managing or cultivating, or otherwise administering any property,
movable or immovable, subject to the trust or forming part of the
testator's or intestate's estate, in any place outside Malaysia or
executing or exercising any discretion or trust or power vested in
them in relation to any such property, with such ancillary powers,
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and with and subject to such provisions and restrictions as they
may think fit, including a power to appoint substitutes, and shall
not, by reason only of their having made such appointment, be
responsible for any loss arising thereby.
(3) (a) Without prejudice to such general power of appointing
agents as aforesaid--
(i) a trustee may appoint a solicitor to be his agent to receive
a n d give a discharge for any money or valuable
consideration or property receivable by the trustees under
the trust, by permitting the solicitor to have the custody
of, and to produce, an instrument having in the body
thereof or endorsed a receipt for such money or valuable
consideration or property, the instrument being executed,
or the endorsed receipt being signed, by the person entitled
to give a receipt for that consideration;
(ii) a trustee shall not be chargeable with breach of trust by
reason only of his having made or concurred in making
any such appointment; and the production of any such
instrument by the solicitor shall have the same statutory
validity and effect as if the person appointing the solicitor
had not been a trustee; and
(iii) a trustee may appoint a banker or solicitor to be his agent
to receive and give a discharge for any money payable
to the trustee under or by virtue of a policy of insurance,
by permitting the banker or solicitor to have the custody
of and to produce the policy of insurance with a receipt
signed by the trustee, and a trustee shall not be chargeable
with a breach of trust by reason only of his having made
or concurred in making any such appointment:
Provided that nothing in this subsection shall exempt a trustee
from any liability which he would have incurred if this Act and
any written law replaced by this Act had not been passed, in case
he permits any such money, valuable consideration, or property to
remain in the hands or under the control of the banker or solicitor
for a period longer than is reasonably necessary to enable the
banker or solicitor, as the case may be, to pay or transfer the same
to the trustee.
(b) This subsection applies whether the money or valuable
consideration or property was or is received before or after the
commencement of this Act.
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Trustee
Power to concur with others
29.  Where an undivided share in the proceeds of sale of land
directed to be sold, or in any other property, is subject to a trust,
or forms part of the estate of a testator or intestate, the trustees
or personal representatives may (without prejudice to the trust for
sale affecting the entirety of the land and the powers of the trustees
for sale in reference thereto) execute or exercise any trust or power
vested in them in relation to such share in conjunction with the
persons entitled to or having power in that behalf over the other
share or shares, and notwithstanding that any one or more of the
trustees or personal representatives may be entitled to or interested
in any such other share, either in his or their own right or in a
fiduciary capacity.
Power to delegate trusts during absence abroad
30. (1) A trustee intending to remain out of Malaysia for a period
exceeding fourteen days may, notwithstanding any rule of law or
equity to the contrary, by power of attorney, delegate to any person
(including a trust corporation) the execution or exercise during his
absence from Malaysia of all or any trusts, powers and discretions
vested in him as such trustee, either alone or jointly with any other
person or persons:
Provided that a person being the only other co-trustee and not
being a trust corporation shall not be appointed to be an attorney
under this subsection.
(2) The donor of a power of attorney given under this section
shall be liable for the acts or defaults of the donee in the same
manner as if they were the acts or defaults of the donor.
(3) The power of attorney shall not come into operation unless
and until the donor is out of Malaysia and shall be revoked by his
return or entry into Malaysia.
(4) The power of attorney shall be verified by attestation in the
manner required by the Powers of Attorney Act 1949 [Act 424],
and a true copy or office copy thereof shall be deposited in a
registry of the High Court as required by such Act, with a statutory
declaration by the donor that he intends to remain out of Malaysia
for a period exceeding fourteen days from the date of the declaration,
or from a date therein mentioned.
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(5) The statutory declaration aforesaid and a statutory declaration
by the donee of the power of attorney that the power has come into
operation and has not been revoked by the return or entry into
Malaysia of the donor shall be conclusive evidence of the facts
stated in favour of any person dealing with the donee.
(6) In favour of any person dealing with the donee, any act done
or instrument executed by the donee shall, notwithstanding that
the power has never come into operation or has become revoked
by the act of the donor or by his death or otherwise, be as valid
and effectual as if the donor were alive and of full capacity, and
had himself done the act or executed the instrument, unless the
person had actual notice that the power had never come into operation
or of the revocation of the power before such act was done or
instrument executed.
(7) For the purpose of executing or exercising the trusts or
powers delegated to him, the donee may exercise any of the powers
conferred on the donor as trustee by law or by the instrument
creating the trust, including power, for the purpose of the transfer
of any inscribed stock, himself to delegate to an attorney power
to transfer but not including the power of delegation conferred by
this section.
(8) The fact that it appears from any power of attorney given
under this section, or from any evidence required for the purposes
of any such power of attorney or otherwise, that in dealing with
any stock the donee of the power is acting in the execution of a
trust shall not be deemed for any purpose to affect any person in
whose books the stock is inscribed or registered with any notice
of the trust.
(9) No power of attorney shall be operative for the purposes of
this section for a longer period than three years after the date of
execution.
Indemnities
Protection against liability in respect of rents and covenants
31. (1) Where a personal representative or trustee liable as such
for--
(a) any rent, covenant or agreement reserved by or contained
in any lease;
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Trustee
(b) any rent, covenant or agreement payable under or contained
in any grant made in consideration of a rent charge; or
(c) any indemnity given in respect of any rent, covenant or
agreement referred to in either of the foregoing paragraphs,
satisfies all liabilities under the lease or grant which may have
accrued, and been claimed, up to the date of the conveyance
hereinafter mentioned, and, where necessary, sets apart a sufficient
fund to answer any future claim that may be made in respect of
any fixed and ascertained sum which the lessee or grantee agreed
to lay out on the property demised or granted, although the period
for laying out the same may not have arrived, then and in any such
case the personal representative or trustee may convey the property
demised or granted to a purchaser, legatee, devisee or other person
entitled to call for a conveyance thereof and thereafter--
(A) he may distribute the residuary estate of the deceased
testator or intestate, or, as the case may be, the trust
estate (other than the fund, if any, set apart as aforesaid)
t o or amongst the persons entitled thereto, without
appropriating any part, or any further part, as the case
may be, of the estate of the deceased or of the trust estate
to meet any future liability under the said lease or grant;
and
(B) notwithstanding any such distribution, he shall not be
personally liable in respect of any subsequent claim under
the said lease or grant.
(2) This section operates without prejudice to the right of the
lessor or grantor, or the persons deriving title under the lessor or
grantor, to follow the assets of the deceased or the trust property
into the hands of the persons amongst whom the same may have
been respectively distributed, and applies notwithstanding anything
to the contrary in the will or other instrument, if any, creating the
trust.
(3) In this section--
"grant" applies to a grant whether the rent is created by limitation,
grant, reservation, or otherwise, and includes an agreement for a
grant and any instrument giving any such indemnity as aforesaid
or varying the liabilities under the grant;
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"lease" includes an underlease and an agreement for a lease or
underlease and any instrument giving any such indemnity as aforesaid
or varying the liability under the lease;
"lessee" and "grantee" include persons respectively deriving
title under them.
Protection by means of advertisement
32. (1) With a view to the conveyance to or distribution among
the persons entitled to any movable or immovable property, the
trustees or personal representatives may give notice by advertisement
in the Gazette, and such other like notices, including notices elsewhere
than in Malaysia, as would, in any special case, have been directed
by a court in an action for administration, of their intention to
make such conveyance or distribution as aforesaid, and requiring
any person interested to send to the trustees or personal representatives
within the time, not being less than two months, fixed in the notice
or, where more than one notice is given, in the last of the notices,
particulars of his claim in respect of the property or any part
thereof to which the notice relates.
(2) At the expiration of the time fixed by the notice the trustees
or personal representatives may convey or distribute the property
or any part to which the notice relates, to or among the persons
entitled, having regard only to the claims, whether formal or not,
of which the trustees or personal representatives then had notice
and shall not, as respects the property so conveyed or distributed,
be liable to any person of whose claim the trustees or personal
representatives have not had notice at the time of conveyance or
distribution; but nothing in this section--
(a) prejudices the right of any person to follow the property,
or any property representing the same, into the hands of
any person, other than a purchaser, who may have received
it; or
(b) frees the trustees or personal representatives from any
obligation to make searches similar to those which an
intending purchaser would be advised to make or obtain.
(3) This section applies notwithstanding anything to the contrary
in the will or other instrument, if any, creating the trust.
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Trustee
Protection in regard to notice
33.  A trustee or personal representative acting for the purposes
of more than one trust or estate shall not, in the absence of fraud,
be affected by notice of any instrument, matter, fact or thing in
relation to any particular trust or estate if he has obtained notice
thereof merely by reason of his acting or having acted for the
purposes of another trust or estate.
Exoneration of trustees in respect of certain powers of attorney
34.  A trustee acting or paying money in good faith under or in
pursuance of any power of attorney shall not be liable for any such
act or payment by reason of the fact that at the time of the act or
payment the person who gave the power of attorney was subject
to any disability or bankrupt or dead, or had done or suffered some
act or thing to avoid the power, if this fact was not known to the
trustee at the time of his so acting or paying:
Provided that--
(a) the money so paid or applied for the advancement or
benefit of any person shall not, subject to any contrary
intention in the instrument of trust, exceed the sum of ten
thousand dollars or in the aggregate an amount equivalent
to one half of the presumptive or vested share or interest
of that person in the trust property, whichever is the
greather; and
(b) the person so entitled shall have the same remedy against
the person to whom the payment is made as he would
have had against the trustee.
Implied indemnity of trustees
35. (1) A trustee shall be chargeable only for money and securities
actually received by him notwithstanding his signing any receipt
for the sake of conformity, and shall be answerable and accountable
only for his own acts, receipts, neglects, or defaults, and not for
those of any other trustee, or of any banker, broker, 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.
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(2) A trustee may reimburse himself or pay or discharge out of
the trust premises all expenses incurred in or about the execution
of the trusts or powers.
Maintenance, Advancement and Protective Trusts
Power to apply income for maintenance and to accumulate
surplus income during a minority
36. (1) Where any property is held by trustees 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 minority of any such person, if his interests
so long continues, the trustees may, at their sole discretion,
pay to his parent or guardian, if any, or otherwise apply
for or towards his maintenance, education 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) a n y person bound by law to provide for his
maintenance or education; and
(b) if such person on attaining the age of twenty-one years
has not a vested interest in such income, the trustees shall
thenceforth pay the income of that property and of any
accretion thereto under subsection (2) 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 trustees shall have regard to the age
of the minor 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 trustees have 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.
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Trustee
(2) During the minority of any such person, if his interest so
long continues, the trustees shall accumulate all the residue of that
income in the way of compound interest by investing the same and
the resulting income from time to time in authorized investments,
and shall hold those accumulations as follows:
(a) if any such person--
(i) attains the age of twenty-one years, or marries
under that age, and his interest in such income
during his minority or until his marriage is a vested
interest; or
(ii) on attaining the age of twenty-one years or on
marriage under that age becomes entitled to the
property from which the income arose;
the trustees shall hold the accumulations in trust for the
person absolutely, and so that the receipt of such person
after marriage, and though still a minor, shall be a good
discharge; and
(b) in any other case the trustees shall, notwithstanding that
the person had a vested interest in such income, hold the
accumulations as an accretion to the capital of the property
from which such accumulations arose, and as one fund
with such capital for all purposes,
but the trustees may, at any time during the minority of such
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 loco parentis 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
five ringgit per centum per annum.
(4) This section applies to a vested annuity in like manner as
if the annuity were the income of property held by trustees in trust
to pay the income thereof to the annuitant for the same period for
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which the annuity is payable, save that in any case accumulations
made during the minority of the annuitant shall be held in trust
for the annuitant or his personal representatives absolutely.
Power of advancement
37.  Trustees may at any time or times pay or apply any capital
money subject to a trust, for the advancement or benefit in such
manner as they may, in their 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 such payment or application may be
made notwithstanding that the interest of such 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 so paid or applied for the advancement or
benefit of any person shall not, subject to any contrary
intention in the instrument of trust, exceed the sum of ten
thousand ringgit or in the aggregate an amount equivalent
to one half of the presumptive or vested share or interest
of that person in the trust property, whichever is the
greater;
(b) if that person is or becomes absolutely and indefeasibly
entitled to a share in the trust property the money so paid
or applied shall be brought into account as part of the
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 paid
or applied unless the person is in existence and of full
age and consents in writing to such payment or application.
Protective trusts
38. (1) Where any income, including an annuity or other periodical
income payment, is directed to be held on protective trusts for the
benefit of any person (in this section called "the principal beneficiary")
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for the period of his life or for any less period, then, during the
period (in this section called the "trust period") the said income
shall, without prejudice to any prior interest, be held on the following
trusts:
(a) upon trust for the principal beneficiary during the trust
period or until he, whether before or after the termination
of any prior interest, does or attempts to do or suffers any
act or thing, or until any event happens, other than an
advance under any statutory or express power, whereby,
if the said income were payable during the trust period
to the principal beneficiary absolutely during that period,
he would be deprived of the right to receive the same or
any part thereof, in any of which cases, as well as on the
termination of the trust period, whichever first happens,
this trust of the said income shall fail or determine;
(b) if the trust aforesaid fails or determines during the
subsistence of the trust period, then, during the residue
of that period, the said income shall be held upon trust
for the application thereof for the maintenance or support,
or otherwise for the benefit, of all or any one or more
exclusively of the other or others of the following persons:
(i) the principal beneficiary and his wife or her husband,
if any, and his or her children or more remote
issue, if any; or
(ii) if there is no wife or husband or issue of the
principal beneficiary in existence, the principal
beneficiary and the persons who would, if he were
actually dead, be entitled to the trust property or
the income thereof or to the annuity fund, if any,
or arrears of the annuity, as the case may be,
as the trustees in their absolute discretion, without being
liable to account for the exercise of such discretion, think
fit.
(2) This section does not apply to trusts coming into operation
before the material date, and has effect subject to any variation of
the implied trusts aforesaid contained in the instrument creating
the trust.
(3) Nothing in this section operates to validate any trust which
would, if contained in the instrument creating the trust, be liable
to be set aside.
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PART IV
APPOINTMENT AND DISCHARGE OF TRUSTEES
Limitation of the number of trustees
39. (1) In the case of settlements and dispositions on trust of
property, whether movable or immovable, made or coming into
operation on or after the material date--
(a) the number of trustees shall not in any case exceed four,
and where more than four persons are named as such
trustees, the four first named (who are able and willing
to act) shall alone be the trustees, and the other persons
named shall not be trustees unless appointed on the
occurrence of a vacancy; and
(b) the number of the trustees shall not be increased beyond
four.
(2) The restrictions hereby imposed on the number of trustees
do not apply in the case of property vested in trustees for charitable,
religious, or public purposes.
Power of appointing new or additional trustees
40. (1) Where a trustee, either original or substituted, and whether
appointed by a Court or otherwise, is dead, or remains out of
Malaysia for more than twelve months, or desires to be discharged
from all or any of the trusts or powers reposed in or conferred on
him, or refuses or is unfit to act therein, or is incapable of acting
therein, or is a minor, then, subject to the restrictions imposed by
this Act on the number of trustees--
(a) the person or person 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 surviving or continuing trustees
or trustee for the time being, or the personal representatives
of the last surviving or continuing trustee,
may, by writing, appoint one or more other persons (whether
or
not being the persons exercising the power) to be a trustee
or
trustees in the place of the trustee so deceased, remaining out
of
Malaysia, desiring to be discharged, refusing, or being unfit
or
being incapable, or being a minor, as aforesaid.
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Trustee
(2) 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, or, in the case of a corporation, as if the corporation
desired to be discharged from the trust, and this section shall apply
accordingly, but subject to the restrictions imposed by this Act on
the number of trustees.
(3) Where a corporation being a trustee is or has been dissolved,
either before or after the commencement of this Act, then, for the
purposes of this section and of any written law replaced thereby,
the corporation shall be deemed to be and to have been from the
date of the dissolution incapable of acting in the trusts or powers
reposed in or conferred on the corporation.
(4) The power of appointment given by subsection (1) or any
similar previous written law 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 the surviving or
continuing trustee who have proved the will of their testator or by
the administrators for the time being of such trustee without the
concurrence of any executor who has renounced or has not proved.
(5) But a sole or last surviving executor intending to renounce,
or all the executors where they all intend to renounce, shall have
and shall be deemed always to have had power, at any time, before
renouncing probate, to exercise the power of appointment given
by this section, or by any similar previous enactment, if willing
to act for that purpose and without accepting the office of executor.
(6) Where a sole trustee, other than a trust corporation is or has
been originally appointed to act in a trust, or where, in the case
of any trust, there are not more than three trustees (none of them
being a trust corporation) 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,
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may, by writing, appoint another person or other persons 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 written law provides to the contrary, nor
shall the number of trustees be increased beyond four by virtue
of any such appointment.
(7) 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 discretions, and may in all respects act as if he had been
originally appointed a trustee by the instrument, if any, creating
the trust.
(8) The provisions of this section relating to a trustee who is
dead include the case of a person nominated trustee in a will but
dying 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.
(9) Where a person who is mentally disordered or of unsound
mind, being a trustee, is also entitled in possession to some beneficial
interest in the trust property, no appointment of a new trustee in
his place shall be made by the continuing trustees or trustee, under
this section, unless leave has been given by the Court to make the
appointment.
Supplemental provisions as to appointment of trustees
41. (1) On the appointment of a trustee for the whole or any part
of trust property--
(a) the number of trustees may, subject to the restrictions
imposed by this Act on the number of trustees, be increased;
(b) a separate set of trustees, not exceeding four, may be
appointed for any part of the trust property held on trusts
distinct from those relating to any other part or parts of
the trust property, notwithstanding that no new trustees
or trustee are or is to be appointed for other parts of the
trust property, and any existing trustee may be appointed
or remain one or such separate set of trustees, or if only
o n e trustee was originally appointed, then, save as
hereinafter provided, one separate trustee may be appointed;
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Trustee
(c) it shall not be obligatory, save as hereinafter provided,
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, but, except where only one trustee
was originally appointed, and a sole trustee when appointed
will be able to give valid receipts for all capital money,
a trustee shall not be discharged from his trust unless
there will be either a trust corporation or at least two
individuals to act as trustees to perform the trust; and
(d) any assurance or thing requisite for vesting the trust
property, on any part, in a sole trustee, or jointly in the
persons who are the trustees, shall be executed or done.
(2) Nothing in this Act shall authorize the appointment of a sole
trustee, not being a trust corporation, where the trustee, when
appointed, would not be able to give valid receipts for all capital
money arising under the trust.
Evidence as to a vacancy in a trust
42. (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, to the
effect that a trustee has remained out of Malaysia for more than
twelve months or refuses or is unfit to act, or is incapable of
acting, or that he is not entitled to a beneficial interest in the trust
property in possession, shall, in favour of a purchaser of a legal
estate, be conclusive evidence of the matter stated.
(2) In favour of the 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.
Retirement of trustee without a new appointment
43. (1) Where a trustee is desirous of being discharged from the
trust, and after his discharge there will be either a trust corporation
or at least two individuals to act as trustees to perform the trust,
then, if such trustee as aforesaid declares in writing that he is
desirous of being discharged from the trust, and if his co-trustees
and such other person, if any, as is empowered to appoint trustees,
consent in writing to the discharge of the trustee, and to the vesting
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and shall, by the instrument, be discharged 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 or done.
Vesting of trust property in new or continuing trustees
44. (1) Where by an instrument a new trustee is appointed to
perform any trust, then--
(a) if the instrument contains a declaration by the appointor
to the effect that any interest in any movable property in
the States of Johore, Kedah, Kelantan, Negeri Sembilan,
Pahang, Perak, Perlis, Selangor and Terengganu, or in
any land or chattel in the States of Malacca, Penang,
Sabah and Sarawak, subject to the trust, or the right to
recover or receive any debt or other thing in action so
subject, shall vest in the persons who by virtue of the
instrument become or are the trustee for performing the
trust, that declaration shall operate, without any conveyance
or assignment, to vest in those persons as joint owners
and for the purposes of the trust the interest or right to
which the declaration relates; and
(b) if the instrument is made on or after the material date and
does not contain such a declaration, the instrument shall,
subject to any express provision to the contrary therein
contained, operate as if it had contained such a declaration
by the appointor extending to all the interests and rights
with respect to which a declaration could have been made.
(2) Where by an instrument a retiring trustee is discharged
under the statutory power without a new trustee being appointed,
then--
(a) if the instrument contains such a declaration as aforesaid
by the retiring and continuing trustees, and by the other
person, if any, empowered to appoint trustees, that
declaration shall, without any conveyance or assignment,
operate to vest in the continuing trustees alone, as joint
owners, and for the purposes of the trust, the interest or
right to which the declaration relates; and
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(b) if the instrument is made after 1st day of September
1929, in the States of Malacca and Penang, or after 9th
day of September 1932, in the States of Johore, Kedah,
Kelantan, Negeri Sembilan, Pahang, Perak, Perlis, Selangor
and Terengganu, and does not contain such a declaration,
the instrument shall, subject to any express provision to
the contrary therein contained, operate as if it had contained
such a declaration by such persons as aforesaid extending
to all the interests and rights with respect to which a
declaration could have been made.
(3) An express vesting declaration, whether made before or
after the commencement of this Act, shall, notwithstanding that
the 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
instrument of appointment or discharge) to vest in the persons
respectively referred to in subsections (1) and (2), as the case may
require, such interests and rights as are capable of being and ought
to be vested in those persons.
(4) (a) This section does not extend--
(i) to land conveyed by way of charge for securing money
subject to the trust, except land conveyed on trust for
securing debentures or debenture stock;
(ii) to land held under a lease which contains any covenant,
condition or agreement against assignment or disposing
of the land without licence or consent, unless, prior to
the execution of the deed containing expressly or impliedly
the vesting declaration, the requisite licence or consent
has been obtained, or unless, by virtue of any written law
or rule of law, the vesting declaration, express or implied,
would not operate as a breach of covenant or give rise
to a forfeiture;
(iii) to any share, stock, annuity or property which is only
transferable in books kept by a company or other body,
or in manner directed by or under any written law.
(b) In this subsection "lease" includes an underlease and an
agreement for a lease or underlease.
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(5) This section applies to instruments executed after 1st day
of August 1886, in the States of Malacca and Penang and after
12th day of November 1920, in the States of Johore, Kedah, Kelantan,
Negeri Sembilan, Pahang, Perak, Perlis, Selangor and Terengganu.
PART V
POWERS OF THE COURT
Power of Court to appoint new trustees
45. (1) (a) 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.
(b) 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
is sentenced to a term of imprisonment or is mentally
disordered or is a person of unsound mind or is a bankrupt
or is a corporation which is in liquidation or has been
dissolved.
(2) 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.
(3) Nothing in this section gives power to appoint an executor
or administrator.
Power to authorize remuneration
46.  The Court may allow any trustee, other than Public Trustee*,
such remuneration for his services as trustee as the Court may
think fit.
*NOTE--The words "Public  Trustee" shall be refered to as "corporation" which means the
corporation under the name of Amanah Raya Berhad incorporated under the Companies Act 1965
[Act 125] pursuant to sectionsee section 2 and subsection 43(3) of the Public Trust Corporation
Act 1995 [Act 532].
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Powers of new trustee appointed by the Court
47.  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 as if he had been originally appointed
a trustee by the instrument, if any, creating the trust.
Vesting Orders
Vesting orders of land
48.
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 land or
interest therein, whether by way of charge or otherwise,
or entitled to a contingent right therein, either solely or
jointly with any other person--
(i) is under disability;
(ii) is out of the jurisdiction of the Court; or
(iii) cannot be found, or being a corporation, has been
dissolved;
(c) where it is uncertain who was the survivor of two or
more trustees jointly entitled to or possessed of any interest
in land;
(d) where it is uncertain whether the last trustee known to
have been entitled to or possessed of any interest in land
is living or dead;
(e) where there is no personal representative of a deceased
trustee who was entitled to or possessed of any interest
in land, or where it is uncertain who is the personal
representative of a deceased trustee who was entitled to
or possessed of any interest in land;
(f) where there is no personal representative of a deceased
chargee who was entitled to or possessed of any interest
in land, or where it is uncertain who is the personal
representative of a deceased chargee who was entitled to
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or possessed of any interest in land, or where it is uncertain
whether any chargee entitled to or possessed of any interest
in land is living or dead, or where any chargee entitled
to or possessed of any interest in land is out of the
jurisdiction of the Court or cannot be found or, being a
corporation, has been dissolved;
(g) where a trustee jointly or solely entitled to or possessed
of any interest in land, or entitled to a contingent right
therein, has been required, by or on behalf of a person
entitled to require a conveyance of the land or interest
or a release of the right, to convey the land or interest
or to release the right, and has wilfully refused or neglected
to convey the land or interest or release the right for
twenty-eight days after the date of the requirement; or
(h) where land or any interest therein is vested in a trustee
whether by way of charge or otherwise, and it appears
to the Court to be expedient,
the Court may make an order (in his Act called a vesting order)
vesting the land or interest therein in any such person in any such
manner and for any such interest as the Court may direct, or
releasing or disposing of the contingent right to such person as the
Court may direct:
Provided that--
(A) where the order is consequential on the appointment of
a trustee the land or interest therein shall be vested for
such interest as the Court may direct in the persons who
on the appointment are the trustees; and
(B) where the order relates to a trustee entitled or formerly
entitled jointly with another person, and such trustee is
under disability or out of the jurisdiction of the Court or
cannot be found, or being a corporation has been dissolved,
the land, interest or right shall be vested in such other
person who remains entitled, either alone or with any
other person the Court may appoint.
Orders as to contingent rights of unborn persons
49.  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
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Trustee
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 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.
Vesting order in place of conveyance by minor
50.  Where any person entitled to or possessed of any interest in
land, or entitled to a contingent right in land, by way of security
of money, is a minor, the Court may make an order vesting or
releasing or disposing of the interest in the land or the right in like
manner as in the case of a trustee under disability.
Vesting order consequential on order for sale of land
51.  Where any court gives a judgment or makes an order directing
the sale or charge 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 chargee or in any other person.
Vesting order consequential on judgment for specific
performance, etc.
52.  Where a judgment is given for the specific performance
of a contract concerning any interest in land, or for sale or
exchange of any interest in land, or generally where any judgment
is given for the conveyance of any interest in land either in cases
arising out of the doctrine of election or otherwise, the Court may
declare--
(a) that any of the parties to the action are trustees of any
interest in the land or any part thereof within the meaning
of this Act; or
(b) that the interests of unborn persons who might claim
under any party to the action, or under the will or voluntary
settlement of any deceased person who was during his
lifetime a party to the contract or transaction concerning
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which the judgment is given, are the interests of persons,
who, on coming into existence, would be trustees within
the meaning of this Act,
and thereupon the Court may make a vesting order relating to the
rights of those persons, born and unborn, as if they had been
trustees.
Effect of vesting order
53.  Subject to due compliance with the requirements of the laws
relating to the registration of interests in land 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 interest as the Court directs; or
(b) if there is no such person, or no such person of full
capacity, as if such person had existed and been of full
capacity and had duly executed all proper conveyances
of the land for such 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 capacity, and had executed
a conveyance or release to the effect intended by the order.
Power to appoint person to convey
54.  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.
Vesting orders as to stock and thing in action
55. (1) 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;
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Trustee
(b) where a trustee entitled alone or jointly with another
person to stock or to a thing in action--
(i) is under disability;
(ii) is out of the jurisdiction of the Court;
(iii) cannot be found, or being a corporation has been
dissolved;
(iv) neglects or refuses to transfer stock or receive the
dividends or income thereof, or to sue for or recover
a thing in action, according to the direction of the
person absolutely entitled thereto for twenty-eight
days next after a request in writing has been made
to him by the person so entitled; or
(v) neglects or refuses to transfer stock or receive the
dividends or income thereto, or to sue for or recover
a thing in action for twenty-eight days next after
an order of the Court for that purpose has been
served on him;
(c) where it is uncertain whether a trustee entitled alone or
jointly with another person to stock or to a thing in action
is alive or dead;
(d) where stock is standing in the name of a deceased person
whose personal representative is under disability; or
(e) where stock or a thing in action is vested in a trustee,
whether by way of charge or otherwise, and it appears
to the Court to be expedient;
the Court may make an order vesting the right to transfer or call
for a transfer of stock, or to receive the dividends or income
thereof, or to sue for or recover the thing in action, in any such
person as the Court may appoint:
Provided that--
(A) where the order is consequential on the appointment of
a trustee, the right shall be vested in the persons who,
on the appointment, are the trustees; and
(B) where the person whose right is dealt with by the order
was entitled jointly with another person, the right shall
be vested in that last-mentioned person either alone or
jointly with any other person whom the Court may appoint.
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(2) In all cases where a vesting order can be made under this
section, the Court may, if it is more convenient, appoint some
proper person to make or join in making the transfer:
Provided that the person appointed to make or join in making
a transfer of stock shall be some proper officer of the company
whose stock is to be transferred.
(3) The person in whom the right to transfer or call for the
transfer of any stock is vested by an order of the Court under this
Act, may transfer the stock to himself or any other person, according
to the order, and all companies shall obey every order under this
section according to its tenor.
(4) After notice in writing of an order under this section it shall
not be lawful for any company to transfer any stock to which the
order relates or to pay any dividends thereon except in accordance
with the order.
(5) The Court may make declarations and give directions
concerning the manner in which the right to transfer any stock or
thing in action vested under this Act is to be exercised.
(6) The provisions of this Act as to vesting orders shall apply
to shares in ships registered under any written law relating to
merchant shipping as if they were stock.
Vesting orders of charity or society property
56.  The powers conferred by this Act as to vesting orders may
be exercised for vesting any interest in land, stock or thing in
action in any trustee of a charity or society over which the Court
would have jurisdiction upon action duly instituted, whether the
appointment of the trustee was made by instrument under a power
or by the Court under its general or statutory jurisdiction.
Vesting orders in relation to minor's beneficial interest
57.  Where a minor is beneficially entitled to any property, the
Court may, with a view to the application of the capital or income
for the maintenance, education or benefit of the minor, make an
order--
(a) appointing a person to convey such property; or
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Trustee
(b) in the case of stock, or a thing in action, vesting in any
person the right to transfer or call for a transfer of such
stock, or to receive the dividends or income thereof, or
to sue for and recover such thing in action, upon such
terms as the Court may think fit.
Orders made upon certain allegations to be conclusive evidence
58.  Where a vesting order is made as to any land under this Act
founded on an allegation of any of the following matters, namely--
(a) the personal incapacity of a trustee or chargee;
(b) that a trustee or chargee or the personal representative of
or other person deriving title under a trustee or chargee
is out of the jurisdiction of the Court or cannot be found,
or being a corporation has been dissolved;
(c) that it is uncertain which of two or more trustees, or
which of two or more persons interested in a charge, was
the survivor;
(d) that it is uncertain whether the last trustee or the personal
representative of or other person deriving title under a
trustee or chargee, or the last surviving person interested
in a charge, is living or dead; or
(e) that any trustee or chargee has died intestate without
leaving a person beneficially interested under the intestacy
or has died and it is not known who is his personal
representative or the person interested,
the fact that the order has been so made shall be conclusive evidence
of the matter so alleged in any Court upon any question as to the
validity of the order; but this section does not prevent the Court
from directing a reconveyance or surrender or the payment of
costs occasioned by any such order if improperly obtained.
Jurisdiction to make other Order
Power of Court to authorize dealings with trust property
59. (1) Where in the management or administration of any property
vested in trustees, any sale, lease, charge, surrender, release, or
o t h e r disposition, or any purchase, investment, acquisition,
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expenditure, or other transaction, is in the opinion of the Court
expedient, but the same cannot be effected by reason of the absence
of any power for that purpose vested in the trustees by the trust
instrument, if any, or by law, the Court may by order confer upon
the trustees, 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 authorized to be expended,
and the cost of any transaction, are to be paid or borne as between
capital and income.
(2) In amplification and not in derogation of the generality
o f the foregoing powers the Court may by order under
subsection (1)--
(a) authorize the trustees to make any investments in or upon
titles to immovable property which are not authorized by
paragraph 4(1)(c);
(b) authorize any trustees who are chargees of land to buy
in any such land at any auction of such land held under
an order of Court or in exercise of a power of sale vested
in the trustees;
(c) authorize the trustees to raise any funds for the improvement
of lands or houses which are vested in or belong to the
trust; or
(d) authorize the doing by the trustees of any act which
appears to the Court to be beneficial to the trust estate
or to the beneficiaries.
(3) The Court may, from time to time, rescind or vary any order
under this section, or may make any new or further 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.
Persons entitled to apply for orders
60. (1) An order under this Act for the appointment of a new
trustee or concerning any interest in land, stock, or thing in action
subject to a trust may be made on the application of any person
beneficially interested in the land, stock, or thing in action, whether
under disability or not, or on the application of any person duly
appointed trustee thereof.
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(2) An order under this Act concerning any interest in land,
stock, or thing in action subject to a charge may be made on the
application of any person beneficially interested in the property
charged, whether under disability or not, or of any person interested
in the money secured by the charge.
Power to give judgment in absence of a trustee
61.  Where in any action 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 action 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 solicitor
at the hearing, but without prejudice to any interest he may have
in the matters in question in action in any other character.
Power to charge costs on trust estate
62.  The Court may order the costs and expenses of and incident
to any application for an order appointing a new trustee, or for a
vesting order, or of and incident to any such order, or any conveyance
or transfer in pursuance thereof, to be raised and paid out of the
property in respect whereof the same is made, or out of the income,
or to be borne and paid in such manner and by such persons as
to the Court may seem just.
Power to relieve trustee from personal liability
63.  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 such breach, then
the Court may relieve him either wholly or partly from personal
liability for the same.
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Power to make beneficiary indemnify for breach of trust
64. (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, and notwithstanding that the beneficiary may
be a married woman restrained from anticipation, 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
as before as after the commencement of this Act.
Payment Into Court
Payment into Court by trustees
65. (1) Trustees, or the majority of trustees, having in their hands
or under their control money or securities belonging to a trust, may
pay the same into Court; and the same shall, subject to the law
relating to civil procedure and to rules of Court, be dealt with
according to the orders of the Court.
(2) The receipt or certificate of the proper officer shall be a
sufficient discharge to trustees for the money or securities so paid
into Court.
(3) Where money or securities is or are vested in any persons
as trustees, and the majority are desirous of paying the same into
Court, but the concurrence of the other or others cannot be obtained,
the Court may order the payment into Court 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, broker, 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 into Court.
(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.
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Trustee
PART VI
GENERAL PROVISIONS
Indemnity
66.  This Act and every order purporting to be made under this
Act, shall be a complete indemnity to all persons for any act done
pursuant thereto, and it shall not be necessary for any person to
inquire concerning the propriety of the order, or whether the Court
by which the order was made had jurisdiction to make it.
Effect of order of Court
67. (1) A trustee, executor or administrator acting under any order
or direction made or given by the Court under Order 55, rule 3(1)
of the *Rules of the Supreme Court 1957 [L.N. 321/1957] shall
be deemed, so far as regards his own responsibility, to have discharged
his duty as such trustee, executor or administrator in the subject-
matter of the said application unless he has been guilty of fraud
or wilful concealment or misrepresentation in connecting with the
obtaining of the order or direction.
( 2 ) T h i s section applies to trust, executorships or
a d m i n i s t r a t o r s h i p s created or constituted before or after the
commencement of this Act.
Validation of certain powers of trustees
68.  The repeal, by the Parliament of the United Kingdom, of
certain provisions of the Trustee Act 1925 of the United Kingdom
[U.K. 1925 c. 19.] shall be deemed not to have affected the powers
of trustees under paragraph 4(i) (as that paragraph stood before the
amendment of the said section 4 by the Trustees Investment Act
1965 [Act 36 of 1965], and under which paragraph a trustee was,
before the commencement of that Act, authorized to invest in any
investment authorized for the investment of trust funds by the said
Act of 1925.)
*NOTE--Rules of the Supreme Court 1957 [L.N. 321/57] has since been repealed by Rules of the
High Court 1980 [P.U. (A) 50/1980see Order 93 of P.U. (A) 50/1980.
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Repeal
69.  The Ordinance and Enactments specified in the Schedule are
hereby repealed:
Provided that--
(a) nothing in this repeal shall affect any vesting order or
appointment made or other thing done under the Ordinance
or Enactments so repealed, and any other or appointment
so made may be revoked or varied in like manner as if
it had been made under this Act;
(b) references in any document to the Ordinance or any
Enactment so repealed or to any provision thereof shall
be construed as references to this Act or to the corresponding
provision of this Act, as the case may be.
SCHEDULE
[Section 69]
REPEAL
No.
Title
F.M.S. Cap. 61
Trustee Enactment
Johore Enactment No. 83
Trustee Enactment
S.S. Cap. 59
Trustees Ordinance
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LAWS OF MALAYSIA
Act 208
TRUSTEE ACT 1949
LIST OF AMENDMENTS
Amending law
Short title
In force from
L.N. 332/1958
Federal Constitution (Modification
13-11-1958
of Laws) (Ordinances and
Proclamations) Order 1958
Act 36/1965
Trustee Investment Act 1965
30-06-1965
Act A42
Trustee (Amendment) Act 1971
30-04-1971
Act A263
Trustee (Amendment) Act 1974
16-08-1974
Act A284
Trustee (Amendment) Act 1975
26-06-1974
P.U. (A) 46/2003
Revision of Laws (Rectification of 04-02-2003
Trustee Act 1949) Order 2003
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Laws of Malaysia
LAWS OF MALAYSIA
Act 208
TRUSTEE ACT 1949
LIST OF SECTIONS AMENDED
Section
Amending authority
In force from
3
Act A42
30-04-1971
Act A263
16-08-1974
4
Act A42
30-04-1971
Act A284
26-06-1974
34
Act A263
16-08-1974
41
L.N. 332/1958
13-11-1958
65
L.N. 332/1958
13-11-1958
DICETAK OLEH
PERCETAKAN NASIONAL MALAYSIA BERHAD,
KUALA LUMPUR
BAGI PIHAK DAN DENGAN PERINTAH KERAJAAN MALAYSIA