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| This archived statute consolidation is current to November 5, 2001 and includes changes enacted and in force by that date. For the most current information, click here. |
[Updated to September 6, 2000]
1 In this Act:
"assign" means the execution and performance by a person of every necessary or suitable deed or act for assigning, surrendering or otherwise transferring land of which the person is possessed, either for the person's whole estate or for any less estate;
"business authorization" has the same meaning as in the Financial Institutions Act;
"contingent right", in relation to land, means a contingent or executory interest, a possibility coupled with an interest, whether the object of the gift or limitation of that interest or possibility is or is not ascertained, and a right of entry, whether immediate or future, and whether vested or contingent;
"convey" in relation to a person, means the execution by that person of every necessary or suitable assurance for conveying or disposing to another land of or in which that person is seised or entitled to a contingent right, either for that person's whole estate or for any less estate, together with the performance of all formalities required by law to validate the conveyance;
"court" means the Supreme Court;
"decree" means judgment;
"deposit business" has the same meaning as in the Financial Institutions Act;
"devisee" includes the heir of a devisee and the devisee of an heir, and generally any person claiming an interest in the land of a deceased person, not as heir of the deceased person, but by a title dependent solely on the operation of the laws concerning devise and descent;
"judicial trustee" means a person appointed under section 97;
"mortgage" is applicable to every estate, interest or property in land or personal estate that would in equity be considered merely a security for money;
"person of unsound mind" means a person, other than an infant, who is incapable, from infirmity of mind, of managing his or her own affairs;
"possessed" is applicable to any vested estate less than a life estate, at law or in equity, in possession or in expectancy, in land;
"seised" is applicable to any vested estate for life or of a greater description, and extends to estates at law and in equity, in possession or in futurity, in land;
"securities" includes stock, debentures, bonds, shares and guaranteed trust or investment certificates;
"stock" includes a share, stock, fund, annuity or security transferable in books kept by a company or society established or to be established, or transferable by deed alone, or by deed accompanied by other formalities, and a share or interest in it;
"transfer" means the execution and performance of every deed and act by which a person entitled to stock can transfer the stock from himself or herself to another;
"trust" includes
(a) implied and constructive trusts,
(b) cases where the trustee has some beneficial estate or interest in the subject of the trust, and
(c) the duties incident to the office of personal representative of a deceased person
but does not include the duties incident to an estate conveyed by way of mortgage;
"trust business" has the same meaning as in the Financial Institutions Act.
2 Except as provided in this Act, this Act extends to persons entitled or acting under a deed, will, codicil or other instrument irrespective of the date of its execution.
3 The receipt in writing of a trustee for money payable to the trustee, by reason or in the exercise of any trusts or powers reposed or vested in the trustee, is a sufficient discharge for the money expressed to be received, and effectually exonerates the persons paying the money from seeing to its application or from being answerable for its loss or misapplication.
4 The payment in good faith to and the receipt of any person to whom any purchase or mortgage money is payable on an express or implied trust effectually discharges the person paying it from seeing to its application or being answerable for its misapplication, unless the contrary is expressly declared by the instrument creating the trust or security.
5 (1) If a trust for sale or a power of sale of property is vested in a trustee, the trustee may sell, or concur with any other person in selling, all or 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 the conditions respecting title or evidence of title or other matter that the trustee thinks fit, with power to vary any contract for sale, and to buy in at any auction, or to rescind any contract for sale and to resell, without being answerable for any loss.
(2) This section applies only if and as far as a contrary intention is not expressed in the instrument creating the trust or power, and has effect subject to the terms of that instrument.
(3) This section applies only to a trust or power created by an instrument coming into operation after July 1, 1905.
6 (1) A sale made by a trustee must not be impeached by a beneficiary on 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 by that condition.
(2) A sale made by a trustee must not, after the execution of the conveyance, be impeached as against the purchaser on 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 the contract for sale was made.
(3) A purchaser, on a sale made by a trustee, is not at liberty to make an objection against the title on the ground referred to in subsection (1) and (2).
(4) This section applies only to sales made after July 1, 1905.
7 (1) A trustee may appoint a solicitor to be the trustee's agent to receive and give a discharge for money, or valuable consideration or property receivable by the trustee under the trust, and a trustee is not chargeable with breach of trust merely for having made or concurred in making that appointment.
(2) A trustee may appoint a banker or solicitor to be the trustee's agent to receive and give a discharge for money payable to the trustee under or because of a policy of assurance, by permitting the banker or solicitor to have the custody of and to produce the policy of assurance with a receipt signed by the trustee, and a trustee is not chargeable with a breach of trust merely for having made or concurred in making that appointment.
(3) This section does not exempt a trustee from any liability the trustee would have incurred if this Act had not been enacted, if the trustee permits the 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 to pay or transfer it to the trustee.
(4) This section applies only if the money or valuable consideration or property is received after July 1, 1905.
(5) This section does not authorize a trustee to do anything the trustee is in express terms forbidden to do, or to omit anything the trustee is in express terms directed to do, by the instrument creating the trust.
8 (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 not exceeding 3/4 of the full value of the building or property, and pay the premiums for that insurance out of the income of the building or property or of any other property subject to the same trusts, without obtaining the consent of a person who may be entitled to all or part of that income.
(2) This section does not apply to a building or property that a trustee is bound to convey absolutely to a beneficiary promptly on being requested to do so.
(3) This section does not authorize a trustee to do anything the trustee is in express terms forbidden to do, or to omit to do anything the trustee is in express terms directed to do, by the instrument creating the trust.
9 (1) An executor or administrator, or 2 or more trustees acting together, or a sole acting trustee if by any instrument creating the trust a sole trustee is authorized to execute the trusts and powers, may, if and as he or she or they think fit, accept
(a) a composition or a security, real or personal, for a debt or for property claimed,
(b) allow time for payment of a debt, and
(c) compromise, compound, abandon, submit to arbitration or otherwise settle a debt, account, claim or other thing relating
to the testator's or intestate's estate or to the trust.
(2) For any of the purposes referred to in subsection (1), a person referred to in that subsection may enter, give, execute and do the agreements, instruments of composition or arrangement, releases and other things that to the person seems expedient, without being responsible for loss caused by an act or thing so done in good faith.
(3) This section applies only if and as far as a contrary intention is not expressed in any instrument creating the trust, and has effect subject to the terms of that instrument.
10 (1) Unless the will contains an express direction to the contrary,
(a) the personal representative of a deceased person, in paying the debts, funeral and testamentary expenses, estate, legacy, succession and inheritance taxes or duties, legacies or other similar disbursements, must not apply and must not be considered to have applied income of the estate in or toward the payment of any part of the capital of those disbursements or of any part of any interest due or accruing due on them at the date of death of the person, and
(b) until the payment of the debts, funeral and testamentary expenses, estate, legacy, succession and inheritance taxes or duties, legacies or other similar disbursements referred to in paragraph (a), the income from the property required for their payment, with the exception of any part of that income applied in the payment of any interest accruing due on them after the date of death of the deceased, must be treated and applied as income of the residuary estate,
provided that, in any case where the assets of the estate are not sufficient to pay those disbursements in full, the income must be applied in making up the deficiency.
(2) Subsection (1) is deemed always to have been part of the law of British Columbia.
(3) Despite subsections (1) and (2), in any case in which the personal representative has, before April 1, 1966, applied a rule of law or of administration different from subsection (1), the application is valid and effective.
11 If it appears to the court, on petition presented to it by a trustee, executor or administrator, that it is necessary or expedient in the interest of the parties concerned to spend money to prevent the deterioration in value of land belonging to the trust estate or to increase its productive power, the court may by order, subject to the directions and conditions it thinks fit and with due regard to the rights of all persons interested in the trust estate, authorize the trustee, executor or administrator to
(a) spend money of the trust estate, or
(b) borrow or raise money by way of mortgage or charge on all or part of the trust estate, and to spend that money
for the repair or improvement of the land, or for the erection on the land of a building or an addition to or improvement of a building.
12 (1) If a power or trust is given to or vested in 2 or more trustees jointly, then, unless the contrary is expressed in any instrument creating the power or trust, it may be exercised or performed by the survivor or survivors of them for the time being.
(2) This section applies only to trusts constituted after or created by instruments coming into operation after July 1, 1905.
13 For the purposes of section 14, a trustee is deemed to be engaged on war service
(a) if the trustee is engaged in connection with a war in which Canada is a participant as a member of the military, naval or air forces of the Crown, or
(b) if in connection with the war the trustee is a prisoner of war in an enemy country, or is interned in the country of a neutral power.
14 (1) A trustee, whether or not a sole trustee, who is engaged on war service and intends to leave British Columbia and remain out of British Columbia for a period exceeding one month, or who is engaged on war service out of British Columbia and does not intend to return within one month, may, despite any rule of law or equity to the contrary, by power of attorney delegate to any person, including a trust company, the execution or exercise of all or any trusts, powers and discretions vested in him or her as trustee, either alone or jointly with any other person or persons, but a person who is the only other co-trustee must not be appointed to be an attorney under this subsection.
(2) The donor of a power of attorney given under this section is 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 does not come into operation unless and until the donor is out of British Columbia and is revoked by his or her return.
(4) The power of attorney must be attested by at least one witness.
(5) All jurisdiction and powers of any court apply to the donee of a power of attorney given under this Act in so far as respects the execution of the trust in the same manner as if the donee were a trustee of the trust.
(6) An affidavit by the donee of a power of attorney, under which the execution of a trust is delegated, that the donor is engaged on war service within the meaning of this Act and is out of British Columbia, and that in any transaction the donee is acting in execution of the trust, must be accepted as conclusive evidence of those facts by the court and all other persons dealing with the donee.
(7) Subject to subsection (11), the Power of Attorney Act applies to powers of attorney given under this section.
(8) In favour of a person dealing with the donee, any act done or instrument executed by the donee is, even though the power has never come into operation or has been revoked by the act of the donor or by his or her death or otherwise, as valid and effectual as if the donor were alive and of full capacity and had himself or herself 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 the act was done or instrument executed, or, unless in the case of an instrument within the meaning of section 1 of the Land Title Act before the registration of the instrument in the land title office of the land title district in which the land comprised in the instrument is located, notice of revocation by death or otherwise, or notice that the power has never come into operation, is filed in that land title office.
(9) For the purpose of executing or exercising the trusts or powers delegated to him or her, the donee may, subject to any limitation contained in the power of attorney, exercise any of the powers conferred on the donor as trustee by statute or by the instrument creating the trust, including the power, for the purpose of the transfer of shares or inscribed stock, to delegate to an attorney power to transfer, but not including the power of delegation conferred by this section.
(10) The fact that it appears from a power of attorney given under this section, or from evidence required for the purposes of that power of attorney or otherwise, that in dealing with shares or stock the donee of the power is acting in the execution of a trust must not be considered for any purpose to affect a person in whose books the shares or stock are inscribed or registered with notice of the trust.
(11) The fact that the donor of a power to which this Act applies is reported "missing" or "missing and believed to be killed" does not give persons who have knowledge of such report actual or constructive notice of the death, although in fact the death has occurred.
15 A trustee may invest trust money in his or her hands, if the investment is in all other respects reasonable and proper, in
(a) securities of Canada, a province, the United Kingdom, the United States of America or a municipal corporation in a province,
(b) securities the payment of the principal and interest of which is guaranteed by Canada, a province, the United Kingdom, the United States of America or a municipal corporation in a province,
(c) securities issued for school, hospital, irrigation, drainage or other similar purposes that are secured by or payable out of rates or taxes levied under the law of a province on property in that province,
(d) bonds, debentures or other evidence of indebtedness of a corporation that are secured by the assignment to a trustee of payments that Canada or a province has agreed to make, if those payments are sufficient to meet the interest on all the bonds, debentures or other evidence of indebtedness outstanding as it falls due and also to meet the principal amount of all the bonds, debentures or other evidence of indebtedness on maturity,
(e) bonds, debentures or other evidence of indebtedness of a corporation incorporated under the laws of Canada or a province that are fully secured by a mortgage, charge or hypothec to a trustee on any one or combination of the following assets:
(i) land;
(ii) the plant or equipment of a corporation that is used in the transaction of its business;
(iii) bonds, debentures or other evidence of indebtedness or shares of a class or classes authorized by this section,
(f) bonds, debentures or other evidence of indebtedness of a corporation incorporated under the laws of Canada or a province if the corporation has earned and paid a dividend,
(i) in each of the 5 years immediately preceding the date of investment, at least equal to the specified annual rate on all of its preferred shares, or
(ii) in each year of a period of 5 years ending less than one year before the date of investment, on its common shares of at least 4% of the average value at which the shares were carried in the capital stock account of the corporation during the year in which the dividend was paid,
(g) guaranteed trust or investment certificates of
(i) a bank, or
(ii) a corporation that is incorporated under the laws of Canada or of a province and that has a business authorization to carry on trust business or deposit business,
(h) bonds, debentures or other evidence of indebtedness of a loan corporation or similar corporation
(i) that at the time of investment has all of the following:
(A) power to lend money on mortgages, charges or hypothecs of real estate;
(B) a paid up nonreturnable capital stock of not less than $500 000;
(C) a reserve fund amounting to not less than 25% of its paid up capital, and
(ii) the stock of which has a market value that is not less than 7% in excess of its par value,
(i) preferred shares of a corporation incorporated under the laws of Canada or of a province if the corporation has paid a dividend,
(i) in each of the 5 years immediately preceding the date of investment, at least equal to the specified annual rate on all of its preferred shares, or
(ii) in each year of a period of 5 years ending less than one year before the date of investment, on its common shares of at least 4% of the average value at which the shares were carried in the capital stock account of the corporation during the year in which the dividend was paid,
(j) first mortgages, charges or hypothecs on land in Canada, but only if the loan does not exceed 75% of the value of the property at the time of the loan as established by a valuator whom the trustee believes on reasonable grounds to be competent and independent,
(k) securities issued or guaranteed by the International Bank for Reconstruction and Development established by the Agreement for an International Bank for Reconstruction and Development, approved by the Bretton Woods and Related Agreements Act (Canada), but only if the bonds, debentures or other securities are payable in the currency of Canada, the United Kingdom, a member of the British Commonwealth or the United States of America,
(l) fully paid common shares of a corporation incorporated under the laws of Canada or of a province that, in each year of a period of 7 years ending less than one year before the date of investment, has paid a dividend on its common shares of at least 4% of the average value at which the shares were carried in the capital stock account of the corporation during the year in which the dividend was paid, and
(m) deposits in, or non-equity or membership shares or other evidence of indebtedness of, a credit union.
16 Despite section 15 (j), a trustee investing trust money in a first mortgage security on land in Canada, if the mortgage is an insured loan under the National Housing Act (Canada), is not chargeable with breach of trust merely because the amount of the loan exceeds 75% of the value of the property mortgaged.
17 (1) In determining market values, a trustee may rely on published market quotations.
(2) A corporation that is a trustee must not invest trust money in its own securities.
(3) In the case of an investment under section 15 (e), the inclusion, as additional security under the mortgages, charges or hypothecs, of other assets not of a class authorized by this Act as investments does not render the bonds, debentures or other evidence of indebtedness ineligible as an investment.
(4) No investment may be made under section 15 (e), (f), (h), (i) or (l) that would at the time of making the investment cause the aggregate market value of the investments made under those paragraphs to exceed 35% of the market value at that time of the whole trust estate.
(5) For the purpose of subsection (4), investments made by the testator or settlor and retained by the trustee under the authority of the trust instrument and that come within any of the classes authorized by section 15 (e), (f), (h), (i) or (l) are deemed to have been made by the trustee.
(6) No sale or other liquidation of any investment made under section 15 (e), (f), (h), (i) or (l) is required merely because of a change in the ratio between the market value of that investment and the market value of the whole trust estate.
(7) In case of investment under section 15 (i) or (l), not more than 30% of the total issue of shares of any corporation may be purchased for any trust.
(8) No investment may be made under section 15 (i) or (l) unless the shares are listed at the time of investment on a recognized stock exchange.
18 In addition to the investments authorized by section 15 or by the trust instrument, except if that instrument expressly prohibits the investment, a trustee may invest funds in the other securities the court on application in a particular case approves as fit and proper, but nothing in this section relieves the trustee of his or her duty to take reasonable and proper care with respect to investments so authorized.
19 A trustee may, pending the investment of trust money, deposit it during a time that is reasonable in the circumstances in
(a) a bank, or
(b) a corporation that has a business authorization to carry on deposit business.
20 (1) Except in the case of a security that cannot be registered, a trustee who invests in securities must require them to be registered in his or her name as the trustee for the particular trust for which the securities are held, and the securities may be transferred only on the books of the corporation in his or her name as trustee for the trust estate.
(2) This section does not apply to a corporation that has a business authorization to carry on trust business.
21 (1) The powers conferred by this Act relating to trustee investments are in addition to the powers conferred by any instrument creating the trust.
(2) Nothing in this Act relating to trustee investments authorizes a trustee to do anything the trustee is in express terms forbidden to do or to omit to do anything the trustee is in express terms directed to do by the instrument creating the trust.
22 (1) A trustee in his or her discretion may
(a) call in trust funds invested in securities other than those authorized by this Act and invest them in securities authorized by this Act, and
(b) vary any investments authorized by this Act.
(2) A trustee is not liable for a breach of trust merely because the trustee continues to hold an investment that since its acquisition by the trustee has ceased to be one authorized by the instrument of trust or by this Act.
(3) If a trustee has improperly advanced trust money on a mortgage that would at the time of the investment have been a proper investment in all respects for a less sum than was actually advanced, the security is deemed to be an authorized investment for the smaller sum, and the trustee is only liable to make good the excess amount advanced, with interest.
23 (1) If a trustee holds securities of a corporation in which he or she has properly invested money under this Act, the trustee may concur in a compromise, scheme or arrangement for
(a) the reconstruction of the corporation or the winding up, sale or distribution of its assets,
(b) the sale of all or part of the property and undertaking of the corporation to another corporation,
(c) the amalgamation of the corporation with another corporation, or
(d) the release, modification or variation of rights, privileges or liabilities attached to the securities or any of them,
in a similar manner as if he or she were entitled to the securities beneficially, and may, if the securities are in all other respects reasonable and proper investments, accept securities of any denomination or description of the reconstructed, purchasing or new corporation in place of or in exchange for all or any of the original securities.
(2) A trustee is not responsible for loss caused by an act or thing done in good faith under subsection (1), and the trustee may, if the securities accepted under that subsection are in all other respects reasonable and proper investments, retain them for any period for which he or she could have properly retained the original securities.
24 (1) If property is held by trustees in trust for an infant, either absolutely or contingently on the infant reaching 19 years of age or on the occurrence of any event before the infant reaches that age, the trustees may, at their sole discretion, pay to any guardians of the infant or otherwise apply for or toward the infant's maintenance or education, all or part of the income to which the infant may be entitled in respect of the property, whether or not there is a fund applicable to the same purpose or any other person bound by law to provide for the infant's maintenance or education.
(2) The trustees must accumulate all the residue of the income referred to in subsection (1) by way of compound interest, by investing it and the resulting income of it from time to time in proper securities, for the benefit of the person who will ultimately become entitled to the property from which the accumulation has arisen, but the trustees may at any time, if it appears expedient to them, apply all or part of the accumulations as if they were part of the income arising in the then current year.
25 (1) If any property is held by trustees in trust for an infant, either absolutely or contingently on the infant reaching 19 years of age or on the occurrence of any event before the infant reaches that age, and if the income arising from that property is insufficient for the maintenance and education of the infant, the trustees may, by leave of the court to be obtained in a summary manner, sell and dispose of any portion of the property, and pay any guardians of the infant or otherwise apply for or toward the infant's maintenance or education all or part of the money arising from the sale.
(2) If all of the money arising from the sale of the property referred to in subsection (1) is not immediately required for the maintenance and education of the infant, the trustees must
(a) invest the surplus money and the resulting income from it from time to time in proper securities,
(b) apply the money referred to in paragraph (a) and the proceeds of it from time to time for the education and maintenance of the infant, and
(c) hold the residue of the money and interest on it not required for the education and maintenance of the infant for the benefit of the person who will ultimately become entitled to the property from which the money and interest have arisen.
26 On any sale made under section 25, the deed of conveyance duly executed by the trustees and the receipt for the purchase money duly signed by the trustees convey a good title to the purchaser of the property purporting to be conveyed, and effectually exonerate the person paying the money from seeing to its application or from being answerable for its loss or misapplication.
27 (1) If a trustee, either original or substituted and whether appointed by any court or otherwise, is dead, remains out of British Columbia for more than 12 months, wishes to be discharged from all or any of the trusts or powers reposed in or conferred on him or her, refuses or is unfit to act in them, or is incapable of acting in them, then the person nominated for the purpose of appointing new trustees by any instrument creating the trust, or if there is no such person or no such person able and willing to act, then the surviving or continuing trustees for the time being, or the personal representatives of the last surviving or continuing trustee, may by writing appoint another person or persons to be a trustee or trustees in the place of the trustee who is dead, remains out of British Columbia, wishes to be discharged, refuses or is unfit or incapable.
(2) On the appointment of a new trustee for all or part of trust property,
(a) the number of trustees may be increased,
(b) a separate set of trustees may be appointed for a part of the trust property held on trusts distinct from those relating to any other part of the trust property, even though no new trustees are to be appointed for other parts of the trust property, and an existing trustee may be appointed or remain one of the separate set of trustees, or if only one trustee was originally appointed, then one separate trustee may be so appointed for the part of the trust property held on trusts distinct from those relating to any other part of the trust property,
(c) it is not obligatory to appoint more than one new trustee if only one trustee was originally appointed, or to fill up the original number of trustees if more than 2 trustees were originally appointed but, except in a case in which only one trustee was originally appointed, a trustee must not be discharged under this section from his or her trust unless there will be at least 2 trustees to perform the trust, and
(d) the assurances or things required for vesting the trust property or any part of it jointly in the persons who are the trustees must be executed or done.
(3) A new trustee appointed under this section, as well before as after all the trust property becomes by law, by assurance or otherwise vested in the trustee, has the same powers, authorities and discretions, and may in all respects act as if he or she had been originally appointed a trustee by any instrument creating the trust.
(4) The provisions of this section relating to
(a) a trustee who is dead include the case of a person who is nominated a trustee in a will but who dies before the testator, and
(b) a continuing trustee include a refusing or retiring trustee, if willing to act in the execution of the provisions of this section.
(5) This section applies only if and as far as a contrary intention is not expressed in any instrument creating the trust, and has effect subject to the terms of that instrument.
28 (1) If there are more than 2 trustees and one of them by deed declares that he or she wishes to be discharged from the trust, and if the co-trustees and any other person empowered to appoint trustees by deed consent to the discharge, and to the vesting in the co-trustees alone of the trust property, then the trustee who wishes to be discharged is deemed to have retired from the trust, and is, by the deed, discharged from the trust under this Act, without a new trustee being appointed in his or her place.
(2) The assurances or things required for vesting the trust property in the continuing trustees alone must be executed or done.
(3) This section applies only if and as far as a contrary intention is not expressed in any instrument creating the trust, and has effect subject to the terms of that instrument.
29 (1) If a deed by which a new trustee is appointed to perform a trust contains a declaration by the appointor to the effect that an estate or interest in land subject to the trust, or in a chattel subject to the trust, or the right to recover and receive a debt or other thing in action subject to the trust, vests in the persons who by virtue of the deed become and are the trustees for performing the trust, that declaration operates, without a conveyance or assignment, to vest in those persons, as joint tenants, and for the purposes of the trust, that estate, interest or right.
(2) If a deed by which a retiring trustee is discharged under this Act contains a declaration referred to in this section by the retiring and continuing trustees, and by any other person, if any, empowered to appoint trustees, that declaration operates, without a conveyance or assignment, to vest in the continuing trustees alone, as joint tenants, and for the purposes of the trust, the estate, interest or right to which the declaration relates.
(3) This section does not extend to land conveyed by way of mortgage for securing money subject to the trust, or to a share, stock, annuity or property that is only transferable in books kept by a company or other body, or in a manner directed by or under any Act of the Legislature.
(4) For the purposes of registration of the deed in a land title office, the persons making the declaration are deemed to be the conveying parties, and the conveyance is deemed to be made by them under a power conferred by this Act.
(5) This section applies only to deeds executed after July 1, 1905.
30 A trustee or receiver appointed by any court may be removed and a trustee, trustees or receiver substituted in place of him or her, at any time on application to the court by any trust beneficiary who is not under legal disability, with the consent and approval of a majority in interest and number of the trust beneficiaries who are also not under legal disability.
31 If it is expedient to appoint a new trustee and it is found inexpedient, difficult or impracticable to do so without the assistance of the court, it is lawful for the court to make an order appointing a new trustee or trustees, whether there is an existing trustee or not at the time of making the order, and either in substitution for or in addition to any existing trustees.
32 The persons who, on the making of an order under section 31, are trustees have the same rights and powers as they would have had if appointed by a decree or judgment in a proceeding.
33 The court, on making an order appointing a new trustee, may, by that order or a subsequent order, direct that land subject to the trust vests in the person or persons who on the appointment are trustees for the estate that the court directs and the order has the same effect as if the persons who before the order were the trustees, if any, had duly executed all proper conveyances of the land for the estate.
34 The court, on making an order appointing a new trustee, may, by that order or a subsequent order, vest the right to call for a transfer of a stock subject to the trust, or to receive the dividends or income of it, or to sue for or recover a chose in action subject to the trust, or any interest in respect of it, in the person or persons who on the appointment are trustees.
35 (1) If a person is jointly or solely seised or possessed of land, or entitled to stock on a trust, and the person has been or is convicted of an indictable offence, the court may, on proof of the conviction, appoint a person to be a trustee in the place of the convict, and make an order for vesting the land, or the right to transfer the stock, and to receive the dividends or income of it, in the person appointed.
(2) An order made under subsection (1) has the same effect with respect to land as if the convict trustee had been free from any disability, and had duly executed a conveyance or assignment of his or her estate and interest in it.
36 (1) An order under any of the above provisions for the appointment of a new trustee, or concerning land, stock or a chose in action subject to a trust, may be made on the application of any person beneficially interested in the land, stock or chose in action, whether under disability or not, or on the application of a person duly appointed as a trustee of it.
(2) An order under any of the above provisions concerning land, stock or a chose in action subject to a mortgage may be made on the application of any person beneficially interested in the equity of redemption, whether under disability or not, or of any person interested in the money secured by the mortgage.
37 The appointment by the court of new trustees, and any conveyance, assignment or transfer mentioned above, operates no further or otherwise as a discharge to a former or continuing trustee than an appointment of new trustees under a power for that purpose contained in an instrument would have done.
38 If a trustee or assignee acting under the trusts of a deed or assignment for the benefit of creditors generally, or a particular class or classes of creditors if the creditors are not designated by name in it, or an executor or administrator, has given, by publishing once in the Gazette and twice each week for 2 consecutive weeks or once a week for 4 consecutive weeks in a newspaper published or circulating in the county in which the debtor or the person deceased resides or resided, a notice to creditors and others to send in to the trustee, assignee, executor or administrator their claims against the person for the benefit of the creditors of whom the deed or assignment is made, or the estate of the testator or intestate, as the case may be, the trustee, assignee, executor or administrator is, at the expiration of the time named in those notices for sending in the claims, which time must not be less than 21 days after the date of the last publication, at liberty to distribute the proceeds of the trust estate, or the assets of the testator or intestate, as the case may be, or any part of them, among the parties entitled to them, having regard to the claims of which the trustee, assignee, executor or administrator then has notice, and is not liable for the proceeds of the trust estate or assets, as the case may be, or any part of them, so distributed to a person of whose claim the trustee, assignee, executor or administrator did not have notice at the time of the distribution of them, or a part of them, as the case may be, but this Act does not prejudice the right of a creditor or claimant to follow the proceeds of the trust estate or assets, as the case may be, or any part of them, into the hands of the persons who may have received them.
39 (1) A trustee, executor or administrator may, without commencing any other proceeding, apply by petition to the court for an order that
(a) the trustee, executor or administrator be at liberty to distribute the proceeds of the estate he or she is administering among the parties entitled to them, having regard only to the claims of the persons the trustee, executor or administrator has been able to ascertain to be entitled and whose residence or address he or she has been able to find out, and
(b) the trustee, executor or administrator is not be liable for the proceeds of the estate or assets, or any part of them, so distributed to persons of whose claim and residence or address the trustee did not have notice at the time of the distribution.
(2) On an application made under subsection (1), the court may give directions with regard to the time for distribution and the notice that must be given to bring the fact of distribution to the notice of persons who may possibly be interested in the distribution.
(3) This section does not prejudice the right of any creditor or claimant to follow the proceeds of the trust estate or assets, as the case may be, or any part of them, into the hands of the person or persons who may have received them.
40 (1) Trustees, or the majority of trustees, having in their hands or under their control money or securities belonging to a trust, other than a trust in favour of a minor, may pay the money or securities into the court, and the money or securities must, subject to the Rules of Court, be dealt with according to the orders of the court.
(2) The receipt or certificate of the proper officer is a sufficient discharge to trustees for the money or securities paid into court under subsection (1).
(3) If money or securities are vested in persons as trustees, the money or securities do not belong to a trust in favour of a minor and the majority of those persons wish to pay the money or securities into court, but the concurrence of the others cannot be obtained, the court or a judge may order the payment into court to be made by the majority without the concurrence of the others.
(4) If the money or securities for which payment into court is or may be ordered under subsection (3) are deposited with a banker, broker or other depository, 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, and every transfer, payment and delivery made under that order is valid and takes effect as if made on the authority or by the act of all the persons entitled to the money and securities so transferred, paid or delivered.
(5) Trustees, or the majority of trustees, having in their hands or under their control money or securities belonging to a trust in favour of a minor may pay the money or securities to the Public Guardian and Trustee in trust for the minor.
(6) If money or securities referred to in subsection (5) are vested in persons as trustees, and the majority of those persons wish to pay the money or securities to the Public Guardian and Trustee, but the concurrence of the others cannot be obtained, the court or a judge may order the payment to the Public Guardian and Trustee to be made by the majority without the concurrence of the others.
(7) If the money or securities for which payment to the Public Guardian and Trustee is or may be ordered under subsection (6) are deposited with a banker, broker or other depository, the court may order payment or delivery of the money or securities to the majority of the trustees for the purpose of payment to the Public Guardian and Trustee, and every transfer, payment and delivery made under that order is valid and takes effect as if made on the authority or by the act of all the persons entitled to the money and securities so transferred, paid or delivered.
41 (1) On a petition made in a summary way by the parties that to the court appear competent and necessary for that purpose, the court may make the orders it considers fit
(a) in respect of the trust money, stocks or securities paid in, transferred and deposited under section 40,
(b) for the investment and payment of the money, or of any dividends or interest on the stock or securities,
(c) for the transfer and delivery out of the stocks and securities, and
(d) for the administration of the trusts generally.
(2) Service of the petition must be made on the persons that the court directs.
(3) An order made on the petition has the same effect, and must be enforced and is subject to rehearing and appeal, as if made in an action regularly commenced in the court.
(4) If it appears that the trust funds cannot be safely distributed without commencing an action, the court may direct that an action be commenced.
42 (1) If on any petition presented to the court in the matter of this Act it appears to the court before which the petition is heard that
(a) money, annuities, stocks or securities are vested in persons as trustees, executors or administrators or otherwise, on trusts within the meaning of this Act,
(b) the majority of those persons wish to pay that money into court, or to transfer or deliver the annuities, stocks or securities to or into the name of the registrar of the court, under this Act, and
(c) for any reason the concurrence of the others of them cannot be had,
the court may order and direct the transfer, payment or delivery to be made by the majority of those persons without the concurrence of the others of them.
(2) If the money or government or parliamentary securities are deposited with a banker, broker or other depository, the court may make the order that seems proper for payment or delivery of the money or government or parliamentary securities to the majority of the trustees, executors, administrators or other persons, for the purpose of being paid into court, or transferred or delivered to or into the name of the registrar of the court.
(3) A transfer of annuities, stocks or securities, and every payment of money or delivery of securities, under the order
(a) is as valid and effectual as if made on the authority or by the act of all the persons entitled to the annuities, stocks or securities so transferred, or the money or securities so paid or delivered, and
(b) fully protects and indemnifies all persons acting under the order.
43 (1) If a person of unsound mind is seised or possessed of land on a trust or by way of mortgage, the court may order that the land be vested in the persons, in the manner and for the estate that it directs.
(2) The order has the same effect as if the trustee or mortgagee had been sane, and had duly executed a conveyance or assignment of the land in the same manner for the same estate.
44 (1) If a person of unsound mind is entitled to a contingent right in land on a trust or by way of mortgage, the court may make an order wholly releasing the land from that contingent right, or disposing of the same to the persons the court directs.
(2) The order has the same effect as if the trustee or mortgagee had been sane, and had duly executed a deed so releasing or disposing of the contingent right.
45 (1) If a person of unsound mind is solely entitled to a stock or chose in action on a trust or by way of mortgage, the court may make an order vesting in any person the right to transfer the stock, or to receive the dividends or income of it, or to sue for and recover the chose in action or an interest in respect of it.
(2) If a person is entitled jointly with a person of unsound mind to a stock or chose in action on a trust or by way of mortgage, the court may make an order vesting the right to transfer the stock, or to receive the dividends or income of it, or to sue for and recover the chose in action or an interest in respect of it, in the person jointly entitled or in that person together with any other person the court appoints.
46 If a stock is standing in the name of a deceased person whose personal representative is a person of unsound mind, or if a chose in action is vested in a person of unsound mind as the personal representative of a deceased person, the court may make an order vesting the right to transfer the stock, or to receive the dividends or income of it, or to sue for and recover the chose in action or an interest in respect of it, in any person the court appoints.
47 (1) If an infant is solely entitled to a stock on a trust, the court may make an order vesting in any person the right to transfer the stock, or to receive the dividends or income of it.
(2) If an infant is entitled jointly with another person to a stock on a trust, the court may make an order vesting the right to transfer the stock or to receive the dividends or income of it, either in the persons jointly entitled with the infant, or in him or her or them together with any other person the court appoints.
48 (1) If an infant is seised or possessed of land on a trust or by way of mortgage, the court may make an order vesting the land in the persons, in the manner and for the estate that the court directs.
(2) The order has the same effect as if the infant trustee or mortgagee had been 19 years of age, and had duly executed a conveyance or assignment of the land in the same manner for the same estate.
49 (1) If an infant is entitled to a contingent right in land on a trust or by way of mortgage, the court may make an order wholly releasing the land from the contingent right, or disposing of it to the persons the court directs.
(2) The order has the same effect as if the infant had been 19 years of age, and had duly executed a deed so releasing or disposing of the contingent right.
50 (1) If a person of unsound mind is entitled to money payable in discharge of any land, stock or chose in action conveyed, assigned or transferred under this Act, the person by whom the money is payable may pay it into the court, under the Rules of Court in that behalf, in trust in any cause then pending concerning that money, or, if there is no such cause, to the credit of the person of unsound mind, subject to the order or disposition of the court.
(2) The court may, on petition in a summary way, order money that is paid into court under subsection (1) to be invested, and may order payment or distribution of it, or payment of the dividends of it, that seems reasonable to the court.
(3) An officer of the court who receives the money referred to in subsection (1) must give to the person paying it a receipt for the money, and the receipt is an effectual discharge for the money expressed to have been received.
(4) If a minor is entitled to money payable in discharge of any land, stock or chose in action conveyed, assigned or transferred under this Act, the person by whom the money is payable may pay it to the Public Guardian and Trustee in trust for the minor.
51 (1) If a person solely seised or possessed of land on a trust is out of the jurisdiction of the court or cannot be found, the court may make an order vesting the land in the persons, in the manner and for the estate that the court directs.
(2) The order has the same effect as if the trustee had duly executed a conveyance or assignment of the land in the same manner and for the same estate.
52 (1) If a person is seised or possessed of land jointly with a person who is out of the jurisdiction of the court or who cannot be found, the court may make an order vesting the land in the person jointly seised or possessed, or in him or her together with any other person, in the manner and for the estate that the court directs.
(2) The order has the same effect as if the trustee out of the jurisdiction, or who cannot be found, had duly executed a conveyance or assignment of the land in the same manner and for the same estate.
53 (1) If a person solely entitled to a contingent right in land on a trust is out of the jurisdiction of the court or cannot be found, the court may make an order wholly releasing the land from the contingent right, or disposing of it to the persons the court directs.
(2) The order has the same effect as if the trustee had duly executed a conveyance so releasing or disposing of the contingent right.
54 (1) If a person jointly entitled with any other person to a contingent right in land on a trust is out of the jurisdiction of the court or cannot be found, the court may make an order disposing of the contingent right of the person who is out of the jurisdiction, or who cannot be found, to the person jointly entitled or to him or her together with any other person.
(2) The order has the same effect as if the trustee out of the jurisdiction, or who cannot be found, had duly executed a conveyance so releasing or disposing of the contingent right.
55 (1) If there have been 2 or more persons jointly seised or possessed of land on a trust, and it is uncertain which of the trustees was the survivor, the court may make an order vesting the land in the persons, in the manner and for the estate that the court directs.
(2) The order has the same effect as if the survivor of the trustees had duly executed a conveyance or assignment of the land in the same manner and for the same estate.
56 (1) If one or more persons have been seised or possessed of land on a trust, and it is not known whether the trustee last known to have been seised or possessed is alive or dead, the court may make an order vesting the land in the persons, in the manner and for the estate that the court directs.
(2) The order has the same effect as if the last trustee had duly executed a conveyance or assignment of the land in the same manner and for the same estate.
57 (1) If a person seised of land on a trust has died intestate as to that land and without an heir, or has died and it is not known who is his or her heir or devisee, the court may make an order vesting the land in the persons, in the manner and for the estate that the court directs.
(2) The order has the same effect as if the heir or devisee of the trustee had duly executed a conveyance of the land in the same manner and for the same estate.
58 If any land is subject to a contingent right in an unborn person or class of unborn persons, who on coming into existence would, in respect of it, become seised or possessed of the land on a trust, the court may make an order that
(a) wholly releases and discharges the land from the contingent right in the unborn person or class of unborn persons, or
(b) vests in any person the estate that the unborn person or class of unborn persons would, on coming into existence, be seised or possessed of in the land.
59 (1) If a person is jointly or solely seised or possessed of any land or entitled to a contingent right in it on a trust, and a demand has been made on the trustee by a person entitled to require a conveyance or assignment of the land, or his or her duly authorized agent, requiring the trustee to convey or assign it, or to release the contingent right, the court, if satisfied that the trustee has wilfully refused or neglected to convey or assign the land for 28 days after the demand, may make an order
(a) vesting the land in the person, in the manner and for the estate that the court directs, or
(b) releasing the contingent right in the manner the court directs.
(2) The order has the same effect as if the trustee had duly executed a conveyance or assignment of the land, or a release of the right, in the same manner and for the same estate.
60 (1) If in a proceeding commenced or to be commenced in the court it is made to appear to the court, by affidavit, that a diligent search and inquiry has been made after a person made a defendant, who is only a trustee, to serve the person with the process of the court, and that the person cannot be found, the court may hear and determine the cause, and may make an absolute decree in it against every person who appears to the court to be only a trustee, and not otherwise concerned in interest in the matter in question, in the same manner as if the trustee had been duly served with the process of the court, had appeared and filed his or her answer to it, and had appeared by counsel at the hearing of the cause.
(2) A decree made under subsection (1) does not bind, affect or in any way prejudice any person against whom it is made, without service of process on him or her, his or her heirs, executors or administrators, for or in respect of an estate, right or interest which that person has at the time of making the decree for his or her own use or benefit, or otherwise than as trustee.
61 (1) If a person to whom land has been conveyed by way of mortgage has died without having entered into possession or into the receipt of the rents and profits of the land, and the money due in respect of the mortgage has been paid to a person entitled to receive it or the person entitled consents to an order for reconveyance of the land, then in the following cases the court may make an order vesting the land in the persons, in the manner and for the estate that the court directs:
(a) an heir or devisee of the mortgagee is out of the jurisdiction of the court or cannot be found;
(b) an heir or devisee of the mortgagee has, on a demand by a person entitled to require a conveyance of the land or by the authorized agent of that person, stated in writing that he or she will not convey it or will not convey it for 28 days after a proper deed for conveying the land has been tendered to him or her by the person entitled or by the agent;
(c) it is uncertain which of several devisees of the mortgagee was the survivor;
(d) it is uncertain as to the survivor of several devisees of the mortgagee, or as to the heir of the mortgagee, whether he or she is living or dead;
(e) the mortgagee has died intestate as to the land and without an heir, or has died and it is not known who is his or her heir or devisee.
(2) The order of the court made under subsection (1) has the same effect as if the heir or devisee, or surviving devisee, as the case may be, had duly executed a conveyance or assignment of the land in the same manner and for the same estate.
62 (1) If the court is, under this Act, able to make an order having the effect of a conveyance or assignment of land, or having the effect of a release or disposition of the contingent right of a person, born or unborn, it is also lawful for the court, if it is considered more convenient, to make an order appointing a person to convey or assign the land or release or dispose of the contingent right.
(2) The conveyance, assignment, release or disposition of the person appointed under subsection (1) has, when acting in accordance with the terms of the order by which he or she is appointed, the same effect in conveying or assigning the land or releasing or disposing of the contingent right, as an order of the court would have had in the particular case under this Act.
(3) If the court is, under this Act, able to make an order vesting in a person the right to transfer stock of a corporation, joint stock company or incorporated society, it is also lawful for the court, if it is considered more convenient, to make an order directing the registrar or one of the district registrars of the court at once to transfer or join in transferring the stock to the person to be named in the order.
(4) This Act is a full and complete indemnity and discharge to all persons for all acts done or permitted to be done under it.
63 If a person neglects or refuses to transfer stock, receive the dividends or income of it, or sue for or recover a chose in action or an interest in respect of the stock, for 28 days after an order of the court or a judge for that purpose has been served on the person, the court may make an order vesting all the right of that person to transfer the stock, receive the dividends or income of the stock, or sue for and recover the chose in action or an interest in respect of the stock, in the persons the court appoints.
64 If a stock is standing in the sole name of a deceased person, whose personal representative neglects or refuses to transfer the stock or receive the dividends or income of it for 28 days after an order of the court for that purpose has been served on the personal representative, the court may make an order vesting the right to transfer the stock or to receive the dividends or income of it, in any person the court appoints.
65 (1) If a person is jointly entitled to a stock or chose in action on a trust with a person
(a) who is out of the jurisdiction of the court,
(b) who cannot be found, or
(c) with respect to whom it is uncertain whether he or she is alive or dead,
the court may make an order vesting the right to transfer the stock, receive the dividends or income of it, or to sue for or recover the chose in action or an interest in respect of it, in the persons so jointly entitled, or in him or her together with any person the court appoints.
(2) If a sole trustee of a stock or chose in action is out of the jurisdiction of the court, or cannot be found, or it is uncertain whether the sole trustee is alive or dead, the court may make an order vesting the right to transfer the stock, receive the dividends or income of it, or to sue for and recover the chose in action or an interest in respect of it, in any person the court appoints.
66 If a sole trustee of a stock or chose in action neglects or refuses to transfer the stock, receive the dividends or income of it, or sue for or recover the chose in action or an interest in respect of it, according to the direction of the person absolutely entitled to it, for 28 days next after a request in writing for that purpose has been made to him or her by the person absolutely entitled to it, the court may make an order vesting the sole right to transfer the stock, or to receive the dividends or income of it, or to sue for and recover the chose in action or an interest in respect of it, in the persons as the court appoints.
67 If any one of the trustees of a stock or chose in action neglects or refuses to transfer the stock, receive the dividends or income of it, or sue for or recover the chose in action according to the directions of the person absolutely entitled to it, for 28 days next after a request in writing for that purpose has been made to him or her by that person, the court may make an order vesting the right to transfer the stock, receive the dividends or income of it, or sue for and recover the chose in action, in the other trustees of the stock or chose in action, or in any person whom the court may appoint jointly with the other trustees.
68 If stock is standing in the sole name of a deceased person whose personal representative is out of the jurisdiction of the court, or cannot be found, or it is uncertain whether the personal representative is alive or dead, or the personal representative neglects or refuses to transfer the stock or receive the dividends or income of it, according to the direction of the person absolutely entitled to the stock, for 28 days after a request in writing for that purpose has been made to the personal representative by the person so entitled, the court may make an order vesting the right to transfer the stock or to receive the dividends or income of it, in any person the court appoints.
69 (1) If an order has been made vesting the right to a stock in a person appointed by the court, the legal right vests accordingly and the person appointed is authorized and empowered to execute all deeds and powers of attorney, and to perform all acts relating to the transfer of the stock into the person's name or otherwise, or relating to the receipt of the dividends of the stock, to the extent and in accordance with the terms of the order.
(2) All companies and associations, and all persons, are equally bound and compellable to comply with the requisitions of a person appointed under subsection (1), to the extent and in accordance with the terms of the order as they would have been bound and compellable to comply with the requisitions of the person in whose place the appointment has been made, and are equally indemnified in complying with the requisition of a person so appointed as they would have been indemnified in complying with the requisition of the person in whose place the appointment has been made.
(3) After notice in writing of the order of the court concerning stock has been given, it is not lawful for a company or association, or a person having received that notice, to act on the requisition of the person in whose place an appointment has been made in any matter relating to the transfer of the stock or the payment of the dividends or produce of the stock.
70 If an order has been made by the court, vesting the legal right to sue for or recover a chose in action or an interest in respect of it in a person, that legal right vests accordingly, and it is lawful for the person appointed to carry on, commence and prosecute in his or her own name, any proceeding at law or in equity for the recovery of the chose in action, in the same manner that the person in whose place an appointment has been made could have sued for or recovered the chose in action.
71 (1) If an estate or interest of inheritance, or limited to the heir as special occupant in any tenements or hereditaments, corporeal or incorporeal, is vested on a trust or by way of mortgage in a person solely, then on the person's death and despite any testamentary disposition, it devolves to and becomes vested in the person's personal representative as if it were a chattel real vesting in the personal representative.
(2) The personal representative referred to in subsection (1) has all the similar powers for one only of several joint personal representatives, for a single personal representative, and for all the personal representatives together, to dispose and otherwise deal with the estate or interest referred to in that subsection, with all the similar incidents, but subject to all the similar rights, equities and obligations, as if the estate or interest were a chattel real vesting in the representative.
(3) For the purpose of this section, the personal representative of the deceased is deemed in law to be the heir and assign within the meaning of all trusts and powers.
(4) This section applies only in cases of deaths after April 17, 1896.
72 (1) If a person has entered a contract in writing for the sale and conveyance of land or for an estate or interest in the land, and the person has died intestate, or without providing by will for the conveyance of the land, estate or interest to the person entitled or to become entitled to the conveyance under the contract, then, where if the deceased were alive, he or she would be liable to execute a conveyance, the executor, administrator or administrator with the will annexed, as the case may be, of the deceased must make and give to the person entitled to it a good and sufficient conveyance of the estate and of a nature that the deceased, if living, would be liable to give, but without covenants, except as against the acts of the grantor.
(2) A conveyance under subsection (1) is as valid and effectual as if the deceased were alive at the time of its making and had executed it, but does not have any further validity.
73 (1) If a decree is made by the court for the specific performance of a contract concerning land or for the partition or exchange of land, or generally if a decree is made for the conveyance or assignment of land, either in cases arising out of the doctrine of election or otherwise, the court may order
(a) that any party to the proceeding in which the decree is made is a trustee of the land or part of it, within the meaning of this Act, or
(b) with respect to the interests of unborn persons who might claim under
(i) any party to the proceeding referred to in paragraph (a), or
(ii) the will or voluntary settlement of a person deceased who was during his or her lifetime a party to the contract or transactions concerning which the decree is made,
that the interests of unborn persons are the interests of persons who, on coming into existence, would be trustees within the meaning of this Act.
(2) After making an order under subsection (1), the court may make the order, as to the estates, rights and interests of those persons, born or unborn, that the court might under this Act make concerning the estates, rights and interests of trustees born or unborn.
74 (1) The court may make orders and give directions concerning the manner in which the right to a stock or chose in action vested under the Estate Administration Act or this Act must be exercised.
(2) A person in whom a right referred to in subsection (1) is vested is then compellable to obey the directions and orders by the same process as that by which other orders under this Act are enforced.
75 A person entitled as described above to apply for an order from the court may present a petition to the court for the order to which the person thinks he or she is entitled, and may give evidence by affidavit or otherwise in support of the petition before the court, and may serve notice of the petition on any person who he or she thinks are entitled to service of it.
76 On hearing the motion or petition, the court, if it is considered necessary, may direct a reference to inquire into any facts that require an investigation, or the court may direct the motion or petition to stand over, to enable the petitioner to adduce evidence before the court, or to enable notice of the motion or petition to be served on any person.
77 On hearing the motion or petition, the court may dismiss it with or without costs, or make an order in accordance with this Act.
78 If in a cause or matter, either by the evidence there adduced, by the admission of the parties, or by a report of the registrar or one of the district registrars of the court, the facts necessary for an order under this Act appear to the court to be sufficiently proved, the court, either on the hearing of the cause or of a petition or motion in the cause or matter, may make the order under this Act.
79 (1) If an order is made under this Act by the court for the purpose of conveying or assigning land, or of releasing or disposing of a contingent right, and the order is founded on
(a) an allegation of the personal incapacity of a trustee or mortgagee,
(b) an allegation that a trustee or the heir or devisee of a mortgagee is out of the jurisdiction of the court or cannot be found, or that it is uncertain which of several trustees, or which of several devisees of a mortgagee, was the survivor, or whether the last trustee, or the heir or last surviving devisee of a mortgagee, is alive or dead, or
(c) an allegation that a trustee or mortgagee has died intestate without an heir, or has died and it is not known who is his or her heir or devisee,
then the fact that the court has made an order on the allegation is conclusive evidence of the matter so alleged in all courts on a question as to the legal validity of the order.
(2) Subsection (1) does not prevent the court from directing a reconveyance or reassignment of land conveyed or assigned by an order under this Act, or a redisposition of a contingent right conveyed or disposed of by the order.
(3) The court may direct any party to a proceeding concerning the land or contingent right referred to in subsection (1) to pay any costs occasioned by an order under this Act, if the order appears to have been improperly obtained.
80 The court may exercise the powers conferred by this Act for the purpose of vesting any land, stock or chose in action in the trustees of a charity or society over which the court would have jurisdiction on an action brought, whether the trustees have been duly appointed
(a) by a power contained in a deed or instrument,
(b) by the decree of the court, or
(c) by order made on a petition to the court under a statute authorizing the court to make an order to that effect in a summary way on petition.
81 (1) If a decree or order is made by the Supreme Court, or by any other court of competent jurisdiction in British Columbia, directing the sale of land for any purpose, a person seised or possessed of the land, or entitled to a contingent right in it, who is a party to the action or proceeding in which the decree or order has been made, and bound by it, or being otherwise bound by the decree or order, is deemed to be so seised, possessed or entitled, as the case may be, on a trust within the meaning of this Act.
(2) In that case, the Supreme Court, if it thinks it expedient to carry the sale into effect, may make an order vesting the land or a part of it for the estate the court thinks fit, either in a purchaser or in any other person the court directs.
(3) An order under subsection (2) has the same effect as if the person seised, possessed or entitled had been free from all disability, and had duly executed all proper conveyances and assignments of the land for that estate.
82 (1) If an order that is, or purports to be, made under this Act is made by the court vesting the right to a stock, the right to transfer a stock or the right to call for the transfer of a stock, in a person, the legal right to transfer the stock vests accordingly.
(2) A person appointed under subsection (1) is authorized and empowered to execute all deeds and powers of attorney, and to perform all acts relating to the transfer of the stock into his or her name or otherwise, to the extent and in accordance with the terms of the order.
(3) All companies and associations, and all persons, are equally bound and compellable to comply with the requisitions of a person appointed under subsection (1), to the extent and in accordance with the terms of the order, as they would have been bound and compellable to comply with the requisitions of the person in whose place the appointment is made.
83 (1) An order made or to be made, that is or purports to be made under this Act by the court, and duly passed and entered, is a complete indemnity to all companies, associations and persons for an act done under it.
(2) It is not necessary for a company, association or person to inquire concerning the propriety of an order referred to in subsection (1), or whether the court had jurisdiction to make the order.
84 The court may postpone making an order on a petition presented to the court under this Act until the right of the petitioner has been declared in a proceeding commenced for that purpose.
85 The court may order the costs and expenses of and relating to the petitions, orders, directions, conveyances, assignments and transfers to be made in pursuance of this Act, or any of them, to be paid and raised out of or from the land or personal estate, or the rents or produce of them, in respect of which they must be made, or in the manner the court thinks proper.
86 (1) A trustee, executor or administrator may, without commencing any other proceeding, apply by petition to the court, or by summons on a written statement to a Supreme Court judge in chambers, for the opinion, advice or direction of the court on a question respecting the management or administration of the trust property or the assets of a testator or intestate.
(2) The application under subsection (1) must be served on, or the hearing attended by all persons interested in the application, or by those that the court thinks expedient.
(3) The costs of an application under subsection (1) are in the discretion of the court.
87 (1) The trustee, executor or administrator, acting on the opinion, advice or direction given by the court, is deemed, so far as regards his or her own responsibility, to have discharged his or her duty as trustee, executor or administrator in the subject matter of the application.
(2) This Act does not extend to indemnify a trustee, executor or administrator in respect of an act done in accordance with the opinion, advice or direction referred to in subsection (1) if the trustee, executor or administrator has been guilty of fraud, willful concealment or misrepresentation in obtaining the opinion, advice or direction.
88 (1) A trustee under a deed, settlement or will, an executor or administrator, a guardian appointed by any court, a testamentary guardian, or any other trustee, however the trust is created, is entitled to, and it is lawful for the Supreme Court, or a registrar of that court if so directed by the court, to allow him or her a fair and reasonable allowance, not exceeding 5% on the gross aggregate value, including capital and income, of all the assets of the estate by way of remuneration for his or her care, pains and trouble and his or her time spent in and about the trusteeship, executorship, guardianship or administration of the estate and effects vested in him or her under any will or letters of administration, and in administering, disposing of and arranging and settling the same, and generally in arranging and settling the affairs of the estate as the court, or a registrar of the court if so directed by the court thinks proper.
(2) The court or a registrar of the court if so directed by the court, may make an order under subsection (1) from time to time, and the amount of remuneration must be allowed to an executor, trustee, guardian or administrator, in passing his or her accounts, in addition to any other allowances for expenses actually incurred to which the trustee, executor, guardian or administrator may by law be entitled.
(3) A person entitled to an allowance under subsection (1) may apply annually to the Supreme Court for a care and management fee and the court may allow a fee not exceeding 0.4% of the average market value of the assets.
89 The court may, on application to it for the purpose, settle or direct the registrar to settle the amount of the compensation, although the estate is not before the court in an action.
90 Nothing in section 88 or 89 applies to an official administrator under Part 5 of the Estate Administration Act or in any case in which the allowance is set by the instrument creating the trust.
91 (1) An order or certificate made by a registrar under section 88 or 89 is subject to review by the court on application by summons to be made before the expiration of 14 clear days after the entering of the order or the filing of the certificate.
(2) Unless varied or discharged by the court, the order or certificate is binding on the trustee, executor, administrator or guardian, and all parties interested in the trust estate.
92 (1) A trustee lawfully lending money on the security of property is not chargeable with breach of trust merely because 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 that
(a) in making the loan the trustee was acting on a report of the value of the property made by a person whom the trustee reasonably believed to be a valuator who was competent and independent of any owner of the property, whether the valuator carried on business in the locality where the property is located or elsewhere,
(b) the amount of the loan did not exceed 75% of the value of the property stated in the report, and
(c) the loan was made on the advice of the valuator expressed in the report.
(2) A trustee lending money on the security of any leasehold property is not chargeable with breach of trust only on the ground that in making the loan the trustee dispensed either wholly or partly with the production or investigation of the lessor's title.
(3) A trustee is not chargeable with breach of trust only on the ground that in effecting the purchase of or in lending money on the security of any property the trustee has accepted a shorter title than the title that a purchaser is, in the absence of a special contract, entitled to require if, in the opinion of the court, the title accepted is such as a person acting with prudence and caution would have accepted.
93 If a trustee improperly advances trust money on a mortgage security that would at the time of the investment be a proper investment in all respects for a smaller sum than is actually advanced, the security is deemed to be an authorized investment for the smaller sum, and the trustee is only liable to make good the excess sum advanced, with interest.
94 (1) A trustee acting or paying money in good faith under or in pursuance of a power of attorney is not liable for the act or payment because of the fact that at the time of the payment or act the person who gave the power of attorney was dead or had done some act to avoid the power, if this fact was not known to the trustee at the time the trustee acted or paid.
(2) This section does not affect the right of a person entitled to the money against the person to whom the payment is made, and the person entitled has the same remedy against the person to whom the payment is made as the person entitled would have had against the trustee.
95 A trustee, without prejudice to the provisions of any instrument creating the trust, is chargeable only for money and securities actually received by the trustee even though the trustee signed a receipt for the sake of conformity, and is answerable and accountable only for the trustee's own acts, receipts, neglects or defaults, and not for those of other trustees or a banker, broker or other person with whom trust money or securities may be deposited, nor for the insufficiency or deficiency of securities or any other loss, unless it happens through the trustee's own willful default, and may reimburse himself or herself, or pay or discharge out of the trust premises, all expenses incurred in or about the execution of his or her trusts or powers.
96 If it appears to the court that a trustee, however appointed, is or may be personally liable for a breach of trust, whenever the transaction alleged to be a breach of trust occurred, 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 the trustee committed the breach, then the court may relieve the trustee either wholly or partly from that personal liability.
97 (1) If an application is made to the court by or on behalf of the person creating or intending to create a trust, or by or on behalf of a trustee or beneficiary, the court may, in its discretion, appoint a judicial trustee to be a trustee of that trust, either jointly with any other person or as sole trustee, and, if sufficient cause is shown, in place of all existing trustees.
(2) The administration of the property of a deceased person, whether a testator or intestate, is a trust, and the executor or administrator a trustee, within the meaning of this section and sections 96 and 98.
(3) Any fit and proper person nominated for the purpose in the application may be appointed a judicial trustee, and in the absence of a nomination, or if the court is not satisfied of the fitness of a person so nominated, an official of the court may be appointed, and in any case a judicial trustee is subject to the control and supervision of the court as an officer of it.
(4) The court may, either on request or without request, give to a judicial trustee general or special directions in regard to the trust or its administration.
(5) A judicial trustee may be paid out of the trust property the remuneration, not exceeding the prescribed limits, that the court assigns in each case, subject to any rules under this Act respecting the application of that remuneration where the judicial trustee is an official of the court, and the remuneration so assigned to a judicial trustee, except as the court may for special reasons otherwise order, must cover all his or her work and personal outlay.
(6) Once in every year the accounts of every trust of which a judicial trustee has been appointed must be audited, and a report on them made to the court by the persons specified by the rules made under section 98, and, in any case if the court so directs, an inquiry into the administration by a judicial trustee of a trust, or into a dealing or transaction of a judicial trustee, must be made in the manner specified by those rules.
(7) Until the rules are made and promulgated, the accounts of a judicial trustee must be audited and passed in accordance with this Act and the rules made under section 100.
98 The Lieutenant Governor in Council may make rules for carrying section 97 into effect, and particularly
(a) for requiring judicial trustees, who are not officials of the court, to give security for the due application of trust property under their control,
(b) respecting the safety of the trust property and its custody,
(c) respecting the remuneration of judicial trustees and for setting and regulating the fees to be taken under this Act, so as to cover the expenses of the administration of this Act, and respecting the payment of such remuneration and fees out of the trust property, and, if the judicial trustee is an official of the court, respecting the application of the remuneration and fees payable to that official,
(d) for dispensing with formal proof of fact in proper cases,
(e) for facilitating the discharge by the court of administrative duties under this Act without judicial proceedings and otherwise regulating procedure under this Act and making it simple and inexpensive,
(f) respecting the suspension or removal of a judicial trustee, the succession of another person to the office of a judicial trustee who may cease to hold office and the vesting in that person of trust property,
(g) respecting the classes of trusts in which officials of the court are not to be judicial trustees, or are to be judicial trustees temporarily or conditionally,
(h) respecting the procedure to be followed if the judicial trustee is executor or administrator,
(i) for preventing employment by judicial trustees of other persons at the expense of the trust, except in cases of strict necessity, and
(j) for the filing and auditing of the accounts of a trust of which a judicial trustee has been appointed.
99 (1) Unless his or her accounts are approved and consented to in writing by all beneficiaries, or the court otherwise orders, an executor, administrator, trustee under a will and judicial trustee must, within 2 years from the date of the granting of the probate or letters of administration or within 2 years from the date of his or her appointment, and every other trustee may at any time obtain from the court an order for passing his or her first accounts, and he or she must pass his or her subsequent accounts at the times the court directs.
(2) Despite subsection (1), an executor, administrator and trustee, including a judicial trustee, if so required by notice served on him or her at the instance of a person beneficially interested in the property covered by the trust, must pass his or her accounts annually within one month from the anniversary of the granting of the probate or letters of administration or of his or her appointment, but the court may on application make an order it considers proper as to the time and manner of passing the accounts.
(3) If an executor, administrator or trustee fails to pass any accounts under this section, or if his or her accounts are incomplete or inaccurate, he or she may be required to attend before the court to show cause why the account has not been passed or a proper proceeding in connection with it taken and proper directions may be given at chambers or by adjournment into court, including the removal of a trustee and appointment of another, and payment of costs.
(4) Subsection (1) does not apply to official administrators appointed under Part 5 of the Estate Administration Act, or to any executor, administrator or trustee under a will if the date of the granting of probate or letters of administration or of his or her appointment is before May 1, 1949.
100 The Lieutenant Governor in Council may make rules for carrying into effect the provisions of sections 88, 89, 91 and 99.
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