The Trustee Act 1998

CHAPTER 176

TRUSTEE

ARRANGEMENT OF SECTIONS

SECTION

PART I

PRELIMINARY

1. Short title.

2. Interpretation.

3. Retention, possession or acquisition of powers by settlor.

PART II

INVESTMENTS

4. Power of investment.

5. Exercise of powers of investment.

6. Investment advice.

7. Power to retain investments.

8. Loans and investments by trustees not chargeable as breaches of trust.

9. Liability for loss by reason of improper investment.

10. Powers supplementary to powers of investment.

11. Power to pay calls on shares.

12. Power to deposit money in bank.

13. Application of sections 10 to 12.

PART III

GENERAL POWERS OF TRUSTEES AND PERSONAL REPRESENTATIVES

General Powers

14. Powers regarding land.

15. Powers of trustees for sale to sell by auction or private contract.

16. Power to sell subject to depreciatory conditions.

17. Power to postpone sale.

18. Trust for sale of mortgaged property where right of redemption is barred.

19. Power of trustees to give receipts.

20. Power to compound liabilities.

21. Power to raise money by sale, mortgage or otherwise.

22. Protection of purchasers and mortgagees.

23. Devolution of powers of trustees.

24. Power to insure.

25. Application of insurance money where policy kept under trust, power or obligation.

26. Deposit of documents and chattels for safe custody.

27. Reversionary interest, valuations and audit.

28. Power to concur with others.

29. Application of sections 20, 24, 26, 27(1), (3) and (4) and 28.

30. Power to employ agents.

31. Power to delegate trusts.

Indemnities

Copyright The Government of the Commonwealth of The Bahamas

32. Protection against liability in respect of rents and covenants.

33. Protection by means of advertisement.

34. Protection in regard to notice.

35. Exoneration of trustees in respect of certain powers of attorney.

36. Implied indemnity of trustee.

Maintenance, Advancement and Protective Trusts

37. Power to apply income to maintenance and to accumulate surplus income during a

minority.

38. Power to apply capital money for advancement or benefit.

39. Protective trusts.

40. Restriction against alienation.

PART IV

APPOINTMENT AND DISCHARGE OF TRUSTEES

41. Limitation of the number of trustees

42. Appointing new trustees.

43. Power to appoint trustees of property belonging to minors or to persons out of The

Bahamas.

44. Supplemental provisions as to appointment of trustees.

45. Evidence of a matter stated.

46. Retirement of trustee without a new appointment.

47. Vesting of trust property in new or continuing trustees.

PART V

POWERS OF THE COURT

Appointment of New Trustees

48. Power of Court to appoint new trustees.

49. Powers of new trustees appointed by the Court.

Remuneration of Trustees

50. Power to authorise remuneration.

Vesting Orders

51. Vesting orders of land.

52. Orders as to contingent rights of unborn persons.

53. Vesting order in place of conveyance by minor mortgagee.

54. Vesting order consequential on order of sale or mortgage of land.

55. Vesting order consequential on judgment for specific performance etc.

56. Effect of vesting order.

57. Power to appoint person to convey.

58. Vesting orders as to stock and things in action.

59. Vesting orders of charity property.

60. Vesting orders in relation to minor’s beneficial interest.

61. Orders made upon certain allegations to be conclusive evidence.

62. Orders of Court to be registered.

63. Persons entitled to apply for orders.

64. Power to apply to the Court.

Copyright The Government of the Commonwealth of The Bahamas

65. Hearing of application.

66. Powers concerning costs.

67. Power to make an order in a cause.

68. Medical evidence concerning person’s state of mind.

69. Action may be directed.

70. Jurisdiction of Court to vary trusts.

71. Power of Court to authorise dealings with trust property.

72. Power to give judgment in absence of a trustee

73. Power to relieve trustee from personal liability.

74. Power to make beneficiary indemnify for breach of trust.

75. Payment into Court by trustees.

76. On summons the Court may order the application of trust moneys.

77. Trustee may apply to Court for advice or direction.

78. Application for advice or direction to be signed by counsel and attorney.

79. Court may make orders.

PART VI

SPECIAL PROVISIONS

80. Trustees to act by majority.

81. Protector of trusts.

82. Managing Trustee.

83. Disclosure.

84. Validation of appointments where objects are excluded or take illusory shares.

85. Validity or powers and discretionary trusts.

86. Power to continue to accumulate income.

87. Termination and modification by beneficiaries.

88. Distribution of shares.

89. Apportionment between capital and income.

90. Incorporation by reference.

91. Memorandum of trust property.

PART VII

FISCAL AND REGULATORY PROVISIONS

92. Trust Duty.

93. Exemptions from tax.

94. Exemption from registration.

95. Exemption from Exchange Control Regulations.

96. Application of Act.

97. Savings.

98. Indemnity.

SCHEDULE – Trust Provisions.

CHAPTER 176

TRUSTEE

22 of 1998

An Act to make better provisions relating to the Law of Trustees and for connected

Copyright The Government of the Commonwealth of The Bahamas

purposes.

[Assent 22nd July, 1998]

[Commencement 27th July, 1998]

PART I

PRELIMINARY

Short title.

1.

This Act may be cited as the Trustee Act, 1998.

Interpretation.

2.

“authorised investments” means investments authorised by the trust instrument or by law for

the investment of money subject to the trust;

“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 (including an assent) for conveying, assigning,

appointing, surrendering or otherwise transferring or disposing of land whereof he is seized or

possessed or wherein he is entitled to a contingent right either for his whole estate or for any

less estate, together with the performance of all formalities required by law for the validity of the

conveyance;

“Court” means the Supreme Court or a Judge thereof;

“income” includes rents and profits;

“instrument” includes a written law and an instrument made under such law;

“land” includes buildings and other structures, land covered with water, and any estate,

interest, easement, servitude or right in, to, over, or issuing out of, or derived from, land and any

mines, minerals and mineral-like substances in or under land and rights of working and mining

them and any parts or shares of lend whether divided vertically or horizontally or in any other

way, and includes undivided shares in any of the foregoing;

“mortgage” includes every kind of security for money charged on land and “mortgage” and

“mortgaging” have corresponding meanings and “mortgagee” includes every person deriving

title under the original mortgagee;

“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 resident in The Bahamas” means a person who is treated as a resident of The

Bahamas for Exchange Control purposes but does not include

The Government of the Commonwealth of The Bahamas

In this Act-Copyright

(a) a company incorporated under the International Business Companies Act;

(b) an exempted limited partnership registered under the Exempted Limited Partnership

Act;

“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; and

“possessed” applies to receipt of income from land and to any vested estate or interest less

than a life estate or interest, legal or equitable, in possession or in expectancy, in any land;

“property” includes real and personal, movable and immovable property and any estate,

share or interest in any such property and any debt and any thing in action and other right or

interest whether in possession or not;

“protector” means any person appointed as such pursuant to the terms of the trust

instrument, including any persons designated as advisers, surrogates, nominators or as a

committee or by any other name having such functions and duties as may be prescribed by the

trust instrument or other deed or document effecting their appointment, but excluding persons

holding trust property;

“rights” include estates and interests;

“sale” includes an exchange;

“securities” include stock, funds and shares and so far as relates to payments into court has

the same meaning as in the written laws relating to funds in the Court; and “securities payable

to the bearer” include securities transferable by delivery or by delivery and endorsement;

“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

company or society or by instruments 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 of every deed or other

instrument of transfer or power of attorney and the performance of every act or thing on the part

of the transferor to effect and complete the title in the transferee;

“trust” shall not include the duties incident to property subject to a mortgage but with this

exception “trust” and “trustee” extend to-

(i) implied, constructive and resulting trusts,

(ii) cases where a trustee has a beneficial interest in the trust property, and

(iii) the duties incident 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 instrument” means the instrument, if any, creating the trust, or where the trust was not

Copyright The Government of the Commonwealth of The Bahamas

created by an instrument refers to any oral declaration creating the trust.

Retention, possession or acquisition of powers by settlor.

3.

matters referred to in subsection (2) shall not invalidate a trust or the trust instrument or cause a

trust created

it to be a testamentary document.

(2) The matters referred to in subsection (1) are-

(a) any powers to revoke the trust or the trust instrument or any trusts or powers granted

thereby, or to withdraw property from the trust;

(b) any powers of appointment or disposition over any of the trust property;

(c) any powers to amend the trust or the trust instrument;

(d) any powers to appoint, add or remove any trustees, protectors or beneficiaries;

(e) any powers to give directions to trustees in connection with the exercise of any of their

powers or discretions;

(f) any provisions requiring the consent of the settlor to any act or abstention of trustees;

(g) any such other powers as are referred to in subsection (2)(a) to (h) of section 81;

(h) the appointment of the settlor as a protector of the trust;

(i) any beneficial interests of the settlor (including absolute beneficial interests) in the

capital or income of the trust property or in both such capital and income; and

(j) any interests of the settlor in any companies or assets underlying the trust property and

any control of the settlor over such companies or assets.

(3) Subject to any contrary intention expressed in the trust instrument and subject to its other

terms, a power in a trust instrument to amend, alter or vary a trust shall include (without

limitation) a power to add as beneficiaries any persons whatever (including the settlor and any

private or charitable trusts or foundations) and to remove any beneficiaries.

(1) The retention, possession or acquisition by the settlor of any one or more of theinter vivos to be a testamentary trust or disposition or the trust instrument creating

PART II

INVESTMENTS

Powers of investment.

4.

individual beneficial owners absolutely entitled including (without prejudice to the foregoing)-

(a) investing through nominees; and

(b) investing in or upon the security of property of any kind in any part of the world,

whether or not yielding any income or involving any liability.

(1) Trustees shall have the full powers of investment and of changing investments of

Copyright The Government of the Commonwealth of The Bahamas

(2) The powers conferred by this section-

(a) shall be exercisable in the discretion of the trustees; and

(b) shall be in addition to those conferred by the trust instrument or by law.

(3) If the trust instrument was made on or after the commencement of this Act or is a written

law or an instrument made under such a law whenever commenced or made then the powers

conferred by this section shall apply to the trust if and so far only as a contrary intention is not

expressed in the trust instrument and shall have effect subject to the terms of that instrument.

(4) The powers conferred by this section shall be subject to any consent or direction required

by the written law or by the trust instrument (whenever commenced or made) with respect to the

investment of trust property.

(5) Save as provided in subsection (4), no provision in any instrument (not being a written law

or an instrument made under such a law) made before, on or after the commencement of this

Act shall limit the powers conferred by this section, except that those powers shall not be

exercisable in such a way as to contravene any express prohibition in such an instrument.

Exercise of powers of investment.

5.

having regard to the purposes, distribution requirements and other circumstances of the trust

and in doing so trustees shall-

(a) exercise reasonable care and caution and the skill of ordinary persons;

(b) have regard to the suitability of individual investments, not in isolation, but in the

context of the trust property as a whole, with a view to obtaining an overall balance of

risk and return reasonably suited to the trust; and

(c) have regard to the need for diversification of investment so far as the trustees may

consider it to be appropriate to the trust.

(2) Among circumstances to which trustees shall have regard in choosing investments are

such of the following as they may consider to be appropriate to the trust or its beneficiaries-

(a) the size of the trust property as a whole and the estimated times and amounts of future

distributions of income and capital;

(b) general economic condition;

(c) the possible effect of inflation and deflation;

(d) the expected tax consequences of investment decisions and of distributions;

(e) the expected total return from income and appreciation of capital;

(f) other resources of beneficiaries;

(g) needs of liquidity, regularity of income, and preservation or appreciation of capital;

(1) Trustees shall make, retain and change investments as a prudent investor would,

Copyright The Government of the Commonwealth of The Bahamas

(h) any special relationship or special value of an asset to the purposes of the trust or to

one or more of the beneficiaries; and

(i) intentions or wishes of the settlor or testator, whether or not expressed in the trust

instrument.

(3) Trustees shall make reasonable efforts to verify facts relevant to their investment

decisions.

(4) Notwithstanding the reference in subsection (1)(a) to the skill of an ordinary person,

trustees who have special skills or expertise, or are named or appointed as trustees in reliance

upon their representation that they have special skills or expertise, have a duty to the

beneficiaries to use such special skills or expertise.

(5) If a trust has two or more beneficiaries, the trustees shall act impartially in investing the

trust property, having regard to any differing interests of the beneficiaries.

(6) This section shall apply if and so far only as a contrary intention is not expressed in the

trust instrument and shall have effect subject to the terms of that instrument.

Investment advice.

6.

advice on the question of suitability to the trust of any proposed investment.

(2) Trustees retaining any investment may obtain and consider, at such intervals as they

consider appropriate having regard to the nature of the investment and other circumstances,

proper advice or the suitability of continuing to retain the investment or disposing of it.

(3) For purposes of this section, proper advice is the written advice of any investment adviser

named in the trust instrument or duly appointed pursuant to its terms, or of any person who is

reasonably believed by the trustees to be qualified to give the advice as a result of that person’s

ability in and practical experience of financial matters, and notwithstanding that it may be given

in the course of that person’s employment as an officer or servant of a company or other

institution.

(4) Trustees shall not be liable for any loss which may result from their having made,

changed, retained or disposed of any investment pursuant to proper advice.

(5) The powers and immunities conferred by this section are in addition to those conferred by

the trust instrument and by law.

(6) This section shall apply if and so far only as a contrary intention is not expressed in the

trust instrument and has effect subject to the terms of that instrument.

(1) Before exercising any powers of investment, trustees may obtain and consider proper

Power to retain investments.

7.

investments which have ceased to be authorised investments.

Trustees shall not be liable for breach of trust by reason only of their continuing to hold

Loans and investments by trustees not chargeable as breaches of trust.

Copyright The Government of the Commonwealth of The Bahamas

8.

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 trustees were acting upon a written report as to the value of

the property made by a person whom they reasonably believed to be an able assessor

or valuer instructed and employed independently of any owner of the property, whether

such assessor or valuer carried on business in the locality where the property is

situated or elsewhere;

(b) that the amount of the loan does not exceed three quarter parts of the value of the

property as stated in the report; and

(c) that the loan was made on the advice of the assessor or valuer expressed in his report.

(2) Trustees 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 they have

accepted a shorter title than the title which 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.

(3) This section shall apply to transfers of existing securities as well as to new securities and

to investments made before, on or after the commencement of this Act.

(1) Trustees lending money on the security of any property on which they can properly

Liability for loss by reason of improper investment.

9.

the time of the investment be a proper investment in all respects for a smaller sum than is

actually advanced, the security shall be deemed an authorised investment for the smaller sum

and the trustees shall only be liable to make good the sum advanced in excess of the smaller

sum with interest.

(2) This section shall apply to investments made before, on or after the commencement of

this Act.

(1) Where trustees improperly advance trust money on a mortgage security which would at

Powers supplementary to powers of investment.

10.

any scheme or arrangement-

(a) for the re-organisation or reconstruction of the company;

(b) for 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 of it, by another

company;

(d) for the merger, amalgamation or consolidation of the company with another company;

or

(1) Where any securities of a company are subject to a trust, the trustees may concur in

Copyright The Government of the Commonwealth of The Bahamas

(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 such securities beneficially, with power to accept any

securities of any denomination or description of the reconstructed or purchasing or new or

surviving or consolidated 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.

(2) If any conditional or preferential right to subscribe for any securities in any company is

offered to trustees in respect of any holding in such company they may, as to all or any of such

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.

(3) 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 trust instrument.

Power to pay calls on shares.

11.

subject to the same trust.

Trustees may apply capital money subject to a trust in payment of the calls on any shares

Power to deposit money in bank.

12.

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 income

of the trust.

(2) Securities payable to bearer which are trust property shall, until sold, be deposited with a

bank for safe custody and collection of interest, and any expenses of any such deposit and of

collection shall be paid out of capital or income of the trust property, or partly in one way and

partly in the other, as the trustees in their discretion think fit.

(1) Trustees may, pending the negotiation and preparation of any mortgage or charge or

Application of sections 10 to 12.

13.

contrary intention is not expressed in the trust instrument and shall have effect subject to the

terms of that instrument.

The powers conferred by sections 10, 11 and 12 shall apply if and so far only as a

PART III

GENERAL POWERS OF TRUSTEES AND PERSONAL REPRESENTATIVES

General Powers

Copyright The Government of the Commonwealth of The Bahamas

Powers regarding land.

14.

(a) to effect any transactions regarding land which is trust property including (without

prejudice to the generality of the foregoing) any sales, exchanges, leases, surrenders

and mortgages and the grant of any easements, servitudes or rights in, to, over, or

issuing out of, the land, or derived from the land;

(b) to contract to effect any such transactions;

(c) to execute all instruments necessary or desirable in order to effect such transactions;

and

(d) to manage, repair, maintain, build on and otherwise improve such land whether for the

occupation of beneficiaries or otherwise.

(2) The power of mortgaging conferred by subsection (1) shall not be exercisable for the

purpose of borrowing money in order to invest it unless this is expressly authorised by the trust

instrument.

(3) The powers conferred by subsection (1)-

(a) are in addition to those conferred by the trust instrument or by law;

(b) apply if and so far only as a contrary intention is not expressed in the trust instrument

and have effect subject to the terms of that instrument; and

(c) are subject to any consent or direction required to by the trust instrument with respect

to any transaction regarding the trust land, so that a consent or direction required by

the trust instrument in respect of a sale or other kind of transaction shall be required in

respect of every kind of transaction authorised by subsection (1).

(1) Trustees shall have the full powers of individual beneficial owners absolutely entitled-

Powers of trustees for sale to sell by auction or private contract.

15.

sell or concur with any other persons 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 trustees

think 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) A trust or power to sell or dispose of property includes a trust or power to sell or dispose

of part of it, whether the division is horizontal, vertical or made in any other way.

(1) Where a trust for sale or a power of sale of property is vested in trustees, they may

Power to sell subject to depreciatory conditions.

16.

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 thereby rendered

inadequate.

(1) No sale made by a trustee shall be impeached by any beneficiary upon the ground

Copyright The Government of the Commonwealth of The Bahamas

(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 shall apply to sales made before, on or after the commencement of this Act.

Power to postpone sale.

17.

unless a contrary intention appears in the trust instrument.

(2) Where there is a power to postpone the sale then (subject to any express direction to the

contrary in the trust instrument) the trustees shall not be liable in any way for postponing the

sale, in the exercise of their discretion, for any indefinite period; nor shall a purchaser of a legal

estate be concerned in any case with any directions respecting the postponement of a sale.

(1) Power to postpone sale shall, in the case of every trust for sale of land, be implied

Trust for sale of mortgaged property where right of redemption is barred.

18.

written law relating to the limitation of actions or of an order for foreclosure or otherwise,

discharged from the right of redemption, it shall be held by them on trust for sale.

(2) The net proceeds of sale after payment of costs and expenses shall be applied in like

manner as the mortgage debt, if received, would have been applicable and the income of the

property until sale shall be applied in like manner as the interest, if received, would have been

applicable; but this subsection shall operate without prejudice to the rule of law relating to the

apportionment of such proceeds between income and capital beneficiaries sometimes referred

to as the rule in Re Atkinson.

(3) This section shall not affect the right of any person to require that instead of a sale the

property shall be conveyed to him or in accordance with his directions.

(1) Where any property vested in trustees by way of security becomes, by virtue of any

Power of trustees to give receipts.

19.

or effects payable, transferable or deliverable to them under any trust or power shall be a

sufficient discharge to the person paying, transferring or delivering the same and shall

effectually exonerate that person from seeing to the application or being answerable for any

loss or misapplication of it.

(2) This section shall apply notwithstanding anything to the contrary in the trust instrument.

(1) The receipt in writing of trustees for any money, securities or other personal property

Power to compound liabilities.

20.

where by the trust instrument a sole trustee is authorised to execute the trusts and powers, may

if and as they think fit

The Government of the Commonwealth of The Bahamas

A personal representative or two or more trustees acting together, or a sole acting trusteeCopyright

(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 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 estates 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 them seems

expedient, without being responsible for any loss occasioned by any act or thing so done by

them in good faith.

Power to raise money by sale, mortgage or otherwise.

21.

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 mortgage or charge of all or any part of the trust property for the time being in possession.

(2) The power to mortgage or charge conferred by subsection (1) shall not be exercisable for

the purpose of borrowing money in order to invest it unless this is expressly authorised by the

trust instrument.

(3) This section shall apply notwithstanding anything to the contrary in the trust instrument.

(1) Where trustees are authorised by the trust instrument or by law to pay or apply capital

Protection of purchasers and mortgagees.

22.

purporting to be made under any trust or power vested in trustees, shall be concerned to see

that such money is needed or that no more than is needed is raised or otherwise as to its

application.

No purchaser or mortgagee, paying or advancing money on a sale or mortgage

Devolution of powers of trustees.

23.

same may be exercised or performed by the survivors or survivor of them for the time being.

(2) Until 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 the

other trustees or trustee for the time being of the trust.

(3) In this section “personal representative” shall not include an executor who has renounced

or has not proved.

(1) Where a power or trust is given to or imposed upon two or more trustees jointly, the

Copyright The Government of the Commonwealth of The Bahamas

Power to insure.

24.

other insurable property to any amount not exceeding (together with the amount of any

insurance already on foot) the value of the building or other property insured or (if greater) the

total cost of replacing and reinstating the building or property and may pay the premium for such

insurance at the discretion of the trustees out of the income thereof or out of the income or

capital of any property subject to the same trusts without obtaining the consent of any

beneficiaries.

(2) Subsection (1) shall not apply to any building or property which the trustees are bound

forthwith to convey absolutely to any beneficiary upon being requested to do so except that, if

the trustees have been insuring the building or property during the subsistence of successive or

concurrent interests in it, they may continue to do so after it becomes distributable and until the

beneficiary then entitled requests them to cease doing so.

(3) Trustees may insure against personal liabilities which they may incur in the execution of

their trusts and may effect fidelity insurance for employees whom they employ in their capacity

as trustees and the premiums for any such insurances may be paid out of the capital or income

of the trust property at the discretion of the trustees.

(4) Subsection (3) shall not extend to insurance against any personal liabilities which the

trustees may incur to any beneficiaries as such for breach of trust or otherwise.

(1) Trustees may insure against loss or damage by fire or otherwise any buildings or

Application of insurance money where policy kept under trust, power or obligation.

25.

the loss or damage of any trust property whether by fire or otherwise shall, where the policy has

been kept 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 a tenant for life

impeachable for waste, be capital money for the purposes of the trust.

(2) If any such money is receivable by any person other than the trustees of the trust, that

person shall use his best endeavours 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 for it, into 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 such trust;

(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 of it may also be applied by the trustees, or if in Court under the

directions of the Court, in rebuilding, reinstating, replacing or repairing the property lost or

damaged, but any such application by the trustees shall be subject to the consent of any person

whose consent is required by the trust instrument to the investment of money subject to the

(1) Money receivable by trustees or any beneficiary under a policy of insurance against

Copyright The Government of the Commonwealth of The Bahamas

trust.

(5) Nothing contained in this section shall prejudice or affect the right of any person to require

any such money or any part of it to be applied in rebuilding, reinstating or repairing the property

lost or damaged, or the rights of any mortgagee, lessor or lessee, whether under any written law

or otherwise.

(6) This section shall apply to policies effected either before, on or after the commencement

of this Act, but only to money received on or after such commencement.

Deposit of documents and chattels for safe custody.

26.

property, and any other chattels which are trust property, with any banker or banking company

or any other company whose business includes the undertaking of the safe custody of

documents or property and any sum payable in respect of such deposit shall be paid out of the

income of the trust property.

Trustees may deposit any documents held by them relating to the trust or to trust

Reversionary interest, valuations and audit.

27.

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 value of it or any part of it in such manner as they may think fit;

(b) accept in or toward satisfaction of it, at the market or current value or upon any

valuation or estimate of value which they may think fit, any authorised investments;

(c) allow any deductions for taxes, duties, costs, charges and expenses which they think

proper or reasonable;

(d) execute any release in respect of the property 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 or trust by reason of any omission-

(a) to place any stop notice or 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 such 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 or until required in writing so to do by some person or the guardian of some person

beneficially interested under the trust and unless due provision is also made to their satisfaction

(1) Where trust property includes any share or interest in property not vested in the

Copyright The Government of the Commonwealth of The Bahamas

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 such share or interest or other thing in action on the same

falling into possession.

(3) Trustees may, for the purpose of giving effect to the trust or any of the provisions of the

trust instrument 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 cause the accounts of the trust

property to be examined or audited by an independent accountant and shall, for that purpose,

produce such vouchers and give such information to such accountant as he may require; and

the costs of such 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 concur with others.

28.

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 any 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

person 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.

Where an undivided share in land or in the proceeds of sale of land directed to be sold,

Application of sections 20, 24, 26, 27(1), (3) and (4) and 28.

29.

apply if and so far only as a contrary intention is not expressed in the trust instrument and shall

have effect subject to the terms of that instrument.

The powers conferred on trustees by sections 20, 24, 26, 27(1), (3) and (4) and 28 shall

Power to employ agents.

30.

pay an agent, whether a counsel and attorney, foreign lawyer, banker, stockbroker, investment

adviser, investment manager or other person to give advice, 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.

(2) Trustees or personal representatives may appoint and pay 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

subject to the trust or forming part of the testator’s or intestate’s estate in any place inside or

outside The Bahamas, or executing or exercising any discretion or trust or power vested in them

in relation to any such property, with such ancillary powers and with and subject to such

(1) Trustees or personal representatives may, instead of acting personally, employ and

Copyright The Government of the Commonwealth of The Bahamas

provisions and restrictions as they may think fit including a power to appoint substitutes.

(3) Without prejudice to such general powers of appointing agents as aforesaid-

(a) a trustee may appoint a counsel and attorney or foreign lawyer to be his agent to

receive and give a discharge for any money or valuable consideration or property

receivable by the trustee under the trust by permitting the counsel and attorney or

foreign lawyer to have the custody of and to produce a deed having in the body thereof

or endorsed thereon a receipt for such money or valuable consideration or property,

the deed being executed or the endorsed receipt being signed by the person entitled to

give a receipt for that consideration;

(b) the production of any such deed by the counsel and attorney or foreign lawyer shall

have the same statutory validity and effect as if the person appointing the counsel and

attorney or foreign lawyer had not been a trustee;

(c) a trustee may appoint a banker or counsel and attorney or foreign lawyer 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 counsel and attorney or

foreign lawyer to have the custody of and to produce the policy of insurance with a

receipt signed by him on behalf of the trustee:

Provided that nothing in this subsection shall exempt a trustee from any liability which he

would have incurred if this Act had not been passed in the event that he permits any such

money, valuable consideration or property to remain in the hands or under control of the banker

or counsel and attorney or foreign lawyer for a period longer than is reasonably necessary to

enable the banker or counsel and attorney, as the case may be, to pay or transfer the same to

the trustee.

(4) Subsection (3) shall apply whether the money or valuable consideration was or is

received before, on or after the commencement of this Act.

(5) Trustees shall be allowed and paid all charges and expenses incurred under this section

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.

(6) Trustees who make reasonable efforts to satisfy themselves that an agent has

appropriate knowledge, experience and integrity shall not be chargeable with breach of trust or

be responsible for any loss by reason only of their having appointed the agent or joined or

concurred in that appointment.

(7) Trustees who have made reasonable efforts to keep themselves informed concerning the

performance of an agent shall not be liable or responsible for any default or wrongful act of the

agent which occurs at a time when the agent appeared to the trustees to be performing honestly

and competently.

(8) This section shall apply if and so far only as a contrary intention is not expressed in the

trust instrument and shall have effect subject to the terms of that instrument.

(9) Subject as provided in subsection (8), subsections (6) and (7) shall apply to agents

Copyright The Government of the Commonwealth of The Bahamas

appointed under the powers conferred by this section or any power in the trust instrument.

Power to delegate trusts.

31.

expressly so permitted by the trust instrument, by power of attorney or any other written

instrument delegate to any person outside The Bahamas or to any person in The Bahamas

while the trustee is absent therefrom the execution or exercise of all or any trusts, powers and

discretions vested in him as such trustee either alone or jointly with any other person.

(2) A delegate so appointed shall be considered an agent of the trustee for the purposes of

subsections (6) and (7) of section 30.

(3) In favour of any person dealing with the delegate, any act done or instrument executed by

the delegate shall, notwithstanding that the power has been revoked by the act of the trustee or

by his depth or otherwise, be as valid and effectual as if the trustee were alive and of full

capacity and had himself done such act or executed such instrument, unless such person had

actual notice of the revocation of the power before such act was done or instrument executed.

(4) For the purpose of executing or exercising the trusts or powers delegated to him, the

delegate may exercise any of the powers conferred on the trustee as trustee by law or by the

trust instrument, including power for the purpose of the transfer of securities himself to delegate

to an attorney a power of transfer but not including the power of delegation conferred by this

section.

(5) The fact that it appears from any power given under this section or otherwise that in

dealing with any securities the delegate 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 securities are inscribed

or registered with any notice of the trust.

(1) A trustee may, notwithstanding any rule of law or equity to the contrary but only if

Indemnities

Protection against liability in respect of rents and covenants.

32.

(a) any rent, covenant or agreement reserved by or contained in any lease;

(b) any rent, covenant or agreement payable under or contained in any grant made in

consideration of a rentcharge; 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 or been claimed up to

the date of the conveyance hereinafter mentioned and where necessary sets apart what he

reasonably considers to be 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

(1) Where a personal representative or trustee liable as such for-

Copyright The Government of the Commonwealth of The Bahamas

conveyance thereof.

(2) After the personal representative or trustee conveys the property as aforesaid-

(a) he may distribute the residuary real and personal estate of the deceased testator or

intestate or, as the case may be, the trust property (other than the fund, if any, set

apart as afore said) to 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 property to meet any future liability under the said lease or grant;

(b) notwithstanding such distribution, he shall not be personally liable in respect of any

subsequent claim under the said lease or grant.

(3) This section shall operate 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 trust

instrument.

(4) 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;

“lease” includes an underlease and an agreement for a lease or underlease and any

instrument giving any such indemnity as aforesaid or varying the liabilities under the lease;

“lessee” and “grantee” include persons respectively deriving title under them.

Protection by means of advertisement.

33.

real or personal property in The Bahamas, trustees or personal representatives may give notice,

by advertisement in the

Sundays) in The Bahamas on three consecutive occasions not less than seven days apart, 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 twenty-eight days, 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 thereof to which the notice relates to or among

the persons entitled thereto 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 shall prejudice the right of any person to follow the property or any property representing

the same into the hands of any person who may have received it.

(1) With a view to the conveyance to or distribution among the persons entitled to anyGazette and in a newspaper published daily (or daily apart from

Copyright The Government of the Commonwealth of The Bahamas

Protection in regard to notice.

34.

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 of it merely by reason

of his acting or having acted for the purposes of another trust or estate.

A trustee or personal representative acting for the purposes of more than one trust or

Exoneration of trustees in respect of certain powers of attorney.

35.

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

was bankrupt or was 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) nothing in this section shall affect the right of any person entitled to the money against

the person to whom the payment is made;

(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.

A trustee acting or paying money in good faith under or in pursuance of any power of

Implied indemnity of trustee.

36.

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 nor for any banker, broker or other person with whom any trust money or securities may

be deposited nor for any other loss, unless such loss happens through his own individual act or

omission.

(2) A trustee may reimburse himself or pay or discharge out of the trust property all expenses

incurred in or about the execution of the trusts or powers.

(3) A trustee may upon resignation, retirement, removal or otherwise ceasing to be trustee of

a trust, whether created before, on or after the commencement of this Act-

(a) require from any continuing or new trustee or continuing and new trustee (in the event

of the trustee’s resignation, retirement or removal), from the settlor (in the event of the

trust’s revocation) or from any beneficiary (in the event of a final distribution to such

beneficiary) a release and indemnity holding harmless the outgoing trustee, and the

servants and agents of the outgoing trustee and (if it is a corporation) its directors and

officers from and against any and all claims, demands, actions, proceedings, damages,

costs, charges and expenses whatsoever for, or arising out of, or in relation to, any act

or omission of the outgoing trustee or of any such directors; officers, servants or agents

in respect of the administration of the trust by the outgoing trustee; and

(b) withhold such trust property as the outgoing trustee in good faith considers necessary

to pay outstanding liabilities, whether present, future, contingent or otherwise or to

satisfy the aforesaid indemnity.

(1) A trustee shall be chargeable only for money and securities actually received by him

Copyright The Government of the Commonwealth of The Bahamas

(4) The indemnity and right to withhold trust property referred to in subsection (3) shall not

extend to any liabilities for breach of trust or in respect of which the outgoing trustee would

otherwise not have been entitled to an indemnity out of the trust property had the outgoing

trustee remained a trustee; and the indemnity given by any continuing or new trustees shall be

limited to the trust property in their possession or under their control from time to time.

Maintenance, Advancement and Protective Trusts

Power to apply income to maintenance and to accumulate surplus income during a

minority.

37.

whatsoever whether vested or contingent then, subject to any prior interests or charges

affecting that property-

(a) during the minority of any such person so long as his interest continues the trustees

may, at their sole discretion, pay to his parent or guardian, if any, without being liable to

see to the due and proper application of any income so paid, or otherwise apply for or

towards his maintenance, education or benefit the whole or such part, if any, of the

income of the 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) any person bound by law to provide for his maintenance or education; and

(b) if such person on attaining the age of majority 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.

(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 thereof from time to time in authorised investments; and shall hold

those accumulations as follows-

(a) if any person-

(i) attains the age of majority or marries under that age and his interest in such

income during minority or until his marriage is a vested interest, or

(ii) on attaining the age of majority or on marriage under that age becomes entitled to

the property from which such income arose in fee simple, absolute or

determinable, or absolutely, or for an entailed interest,

the trustees shall hold the accumulations in trust for such person absolutely, and so

that the receipt of such person after marriage and though still a minor shall be a good

(1) Where any property is held by trustees in trust for any person for any interest

Copyright The Government of the Commonwealth of The Bahamas

discharge; and

(b) in any other case the trustees shall, notwithstanding that such 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 of them as if they were income arising in the

then current year.

(3) This section shall apply 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

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 the Court to the contrary) be such annual rate as the trustees in their

absolute discretion determine.

(4) This section shall apply 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 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.

(5) This section shall not apply where the instrument (if any) under which the interest arises

came into operation before the commencement of this Act, including a will or codicil executed

before such commencement.

(6) This section shall apply if and so far only as a contrary intention is not expressed in the

trust instrument and shall have effect subject to the terms of that instrument.

in loco parentis to the legatee, if and for such period as,

Power to apply capital money for advancement or benefit.

38.

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 of it, 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

exceed altogether in amount one-half of the presumptive or vested share or interest of

that person in the trust property;

(b) if that person is or becomes absolutely or indefeasibly entitled to a share in the trust

(1) Trustees may at any time pay or apply any capital money subject to a trust for the

Copyright The Government of the Commonwealth of The Bahamas

property the money so paid or applied shall be brought into account as part of such

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 such person is in existence and of full age and consents in writing to

such payment or application.

(2) This section shall apply only where the trust property consists of money or securities or of

property held upon trust for sale, calling in and conversion and such money or securities or the

proceeds of such sale, calling in and conversion are not by law or in equity considered as land.

(3) This section shall apply if and so far only as a contrary intention is not expressed in the

trust instrument and shall have effect subject to that instrument.

(4) This section shall not apply where the trust instrument came into operation before the

commencement of this Act, including a will or codicil executed before such commencement.

Protective trusts.

39.

directed to be held on protective trusts for the benefit of any person (in this section called “the

principal beneficiary”) for the period of his life or for any less period, then during that period (in

this section called the “trust period”) the said income shall, without prejudice to any prior

interest, be held on the following trust, namely-

(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 the 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 (that is to

say)-

(i) the principal beneficiary and his or her wife or 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.

(1) Where any income including an annuity or other periodical income payment is

Copyright The Government of the Commonwealth of The Bahamas

(2) This section shall not apply to trusts coming into operation before the commencement of

this Act and has effect subject to any variation of the implied trusts aforesaid contained in the

instrument creating the trust.

(3) Nothing in this section shall operate to validate any trust which would if contained in the

instrument creating the trust be liable to be set aside.

Restriction against alienation.

40.

instrument or disposition to provide that any estate or interest in any property given or to be

given to any individual as a beneficiary shall not during the life of the beneficiary, or such lesser

period as may be specified in the instrument or disposition, be alienated or pass by bankruptcy,

insolvency or liquidation or be liable to be seized, sold, attached, or taken in execution by

process of law and where so provided such provision shall take effect accordingly.

(2) Where property is given subject to any of the restrictions contained in subsection (1), the

right to derive income from such property by a beneficiary and any income derived therefrom

shall not pass by bankruptcy, insolvency or liquidation or be liable to be seized, attached or

taken in execution by process of law.

(3) Where property is given subject to a restriction against alienation then the right to derive

income from that property shall not be alienable for as long as that restriction remains in force.

(4) A restriction imposed pursuant to this section may at any time be removed in accordance

with any provisions for such removal in the instrument or disposition and in the manner specified

therein.

(5) Neither the settlor nor any other person donating property to a trust may benefit from the

provisions of this section.

(1) Notwithstanding any rule of law or equity to the contrary, it shall be lawful for an

PART IV

APPOINTMENT AND DISCHARGE OF TRUSTEES

Limitation of the number of trustees.

41.

land in The Bahamas (whether or not on trust for sale), no new trustees shall (except where as

a result of the appointment the number is reduced to four or less) be capable of being appointed

until the number is reduced to less than four and thereafter the number shall not be increased

beyond four.

(2) In the case of trusts of land in The Bahamas made or coming into operation on or after

the commencement of this Act-

(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;

(b) the number of the trustees shall not be increased beyond four.

(1) Where on the commencement of this Act there are more than four trustees holding

Copyright The Government of the Commonwealth of The Bahamas

(3) This section shall apply only to trusts of land (whether or not on trust for sale) and the

restrictions imposed on the number of trustees shall not apply-

(a) in the case of land vested in trustees for charitable, ecclesiastical or public purposes;

or

(b) where the net proceeds of the sale of the land are held for like purposes.

Appointing new trustees.

42.

otherwise is dead 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 persons nominated for the purpose of appointing new trustees by the

trust instrument; or

(b) if there is no such person or no such person able and willing to act, then the surviving

or continuing trustee or trustees for the time being or the personal representatives of

the last surviving or continuing trustee,

may, by deed, appoint one or more other persons (whether or not residing in The Bahamas and

whether or not being the persons exercising the power) to be a trustee or trustees in the place

of the trustee so deceased, desiring to be discharged, refusing, or being unfit or being

incapable, or being a minor, as aforesaid.

(2) Where a trustee has been removed under a power contained in the trust instrument, 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 the provisions of 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 in liquidation or has been dissolved or has been

removed from the register of companies either before, on or after the commencement of this Act

or has otherwise ceased to have a corporate existence, then for the purposes of this section

and of any similar previous written law the corporation shall be deemed to be and to have been

from the date of the liquidation, dissolution, removal or ceasing to have a corporate existence

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 such 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) A 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 written law, if willing to act for that purpose and without thereby accepting office

(1) Where a trustee either original or substituted and whether appointed by the Court or

Copyright The Government of the Commonwealth of The Bahamas

as an executor.

(6) Where a sole trustee 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 either original or substituted and

whether appointed by the Court or otherwise, then and in 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,

may, by deed, appoint another person or other persons (whether or not residing in The

Bahamas and whether or not being the persons exercising the power) to be an additional

trustee or additional trustees, but it shall not be obligatory to appoint any additional trustee

unless the trust instrument 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 (including discretionary powers), authorities and discretions, and may in all respects act,

as if he had been originally appointed a trustee by the trust instrument.

(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 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.

Power to appoint trustees of property belonging to minors or to persons out of The

Bahamas.

43.

on the intestacy of a person dying before, on or after the commencement of this Act (in this

subsection called “the deceased”) to a devise or legacy of any property or to the residue of the

estate of the deceased or any share therein and such devise, legacy, residue or share is not

under the will, if any, of the deceased, devised or bequeathed to trustees for the minor or the

person out of The Bahamas, the personal representatives of the deceased may by writing

appoint two or more persons not exceeding four (whether or not including the personal

representatives or one or more of the personal representatives) to be the trustee or trustees of

such devise, legacy, residue or share for the minor or the person out of The Bahamas, and may

execute or do any assurance or thing requisite for vesting such devise, legacy, residue or share

in the trustee or trustees so appointed.

(2) On such appointment the personal representatives as such shall be discharged from all

further liability in respect of such devise, legacy, residue or share, and the property representing

the same may be retained in its existing condition or state of investment or may be converted

(1) Where a minor or a person out of The Bahamas is absolutely entitled under the will or

Copyright The Government of the Commonwealth of The Bahamas

into money, and such money may be invested in authorised investments and such property or

investments shall be held until such person is capable of giving a receipt and calls for the

distribution of the property.

(3) Where a personal representative has before the commencement of this Act retained or

sold any property which is the subject matter of any such devise, legacy, residue or share and

invested the same or the proceeds thereof in any investment in which he was authorised to

invest money subject to the trust, then subject to any order of the Court made before such

commencement he shall not be deemed to have incurred any liability on that account by reason

of not having paid or transferred the money or property into Court.

Supplemental provisions as to appointment of trustees.

44.

(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 trustee or trustees is or are to be appointed

for other parts of the trust property and any existing trustee may be appointed or

remain one of such separate set of trustees or, if only one trustee was originally

appointed, then save as hereinafter provided one separate trustee may be so

appointed;

(c) it shall not be obligatory to appoint more than one new trustee where only one trustee

was originally appointed or to fill up the original number of trustees where more than

two trustees were originally appointed; and

(d) any assurance or thing requisite for vesting the trust property or any part thereof in a

sole trustee or jointly in the persons who are the trustees shall be executed or done.

On the appointment of a trustee for the whole or any part of the trust property-

Evidence of a matter stated.

45.

commencement of this Act by which a new trustee is appointed for any purpose connected with

land to the effect that a trustee 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 such 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.

(1) A statement contained in any instrument coming into operation after the

Retirement of trustee without a new appointment.

46.

aforesaid by deed declares 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 by deed consent

to the discharge of the trustee and to the vesting in the co-trustees alone of the trust property,

(1) Where a trustee is desirous of being discharged from the trust then, if such trustee as

Copyright The Government of the Commonwealth of The Bahamas

the trustee desirous of being discharged shall be deemed to have retired from the trust and

shall by the deed be discharged therefrom 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.

47.

(a) if the deed contains a declaration by the appointor to the effect that any estate or

interest in any land subject to the trust or in any chattel so subject 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 deed become or are the trustees for performing the trust, the deed

shall operate without any conveyance or assignment to vest in those persons as joint

tenants and for the purposes of the trust the estate, interest or right to which the

declaration relates; and

(b) if the deed is made after the commencement of this Act and does not contain such a

declaration, the deed 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 estates, interests and rights with respect to which a declaration could have

been made.

(2) Where by a deed a retiring trustee is discharged under the statutory power without a new

trustee being appointed, then-

(a) if the deed contains such a declaration as aforesaid by the retiring and continuing

trustees and by the other person, if any, empowered to appoint trustees, the deed

shall, without any conveyance or assignment, operate 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; and

(b) if the deed is made after the commencement of this Act and does not contain such a

declaration, the deed 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 estates, interests and rights with respect to which a

declaration could have been made.

(3) An express vesting declaration whether made before, on or after the commencement of

this Act shall, notwithstanding that the estate, interest and 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 deed of appointment or discharge) to vest in the

persons respectively referred to in subsections (1) and (2), as the case may require, such

estates, interests and rights as are capable of being and ought to be vested in those persons.

(4) Where a corporate trustee is merged or amalgamated with another corporate trustee,

then on the date when such merger or amalgamation takes effect all trust property held by the

non-surviving trustee shall automatically and without any action on the part of either trustee vest

(1) Where by a deed a new trustee is appointed to perform any trust, then-

Copyright The Government of the Commonwealth of The Bahamas

in the surviving trustee unless the trust instrument specifically prohibits the removal of a trustee

and the appointment of a new trustee or requires the consent or approval of a person and such

consent or approval shall not have been obtained or such vesting would result in the abrogation

of any other rights, conditions, terms or provisions contained in such instrument or any

instrument effectively amending such instrument.

(5) Subsections (1) to (3) shall not extend-

(a) to land conveyed by way of mortgage for securing money subject to the trust, except

land conveyed on trust for securing debentures or debenture stock;

(b) to land held under a lease which contains any covenant, condition or agreement

against assignment or disposal 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 law the

vesting declaration expressed or implied would not operate as a breach of covenant or

give rise to a forfeiture;

(c) 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,

and subsection (4) shall not extend to land held under a lease which contains any covenant or

agreement against assignment or disposal of the land without licence or consent unless prior to

such merger or amalgamation the requisite licence or consent has been obtained or unless by

virtue of any law the merger or amalgamation would not operate as a breach of covenant or give

rise to a forfeiture.

(6) In this section “lease” includes an underlease and an agreement for a lease or

underlease.

(7) This section shall apply only to trust instruments executed after the thirty-first day of

December one thousand eight hundred and eighty-one.

PART V

POWERS OF THE COURT

Appointment of New Trustees

Power of Court to appoint new trustees.

48.

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.

(2) In particular and without prejudice to the generality of subsection (1) the Court may make

an order appointing a new trustee in substitution for a trustee who is convicted of a felony or is a

person of unsound mind or is a bankrupt or is a corporation which is in liquidation or has been

dissolved or has been removed from the register of companies or has otherwise ceased to have

corporate existence or where a trustee appears to the Court for any other reason whatever to be

undesirable as a trustee.

(1) The Court may, whenever it is expedient to appoint a new trustee or new trustees and

Copyright The Government of the Commonwealth of The Bahamas

(3) 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.

(4) Nothing in this section shall give power to appoint an executor or administrator.

Powers of new trustees appointed by the Court.

49.

becomes by law or by assurance or otherwise vested in him, have the same powers (including

discretionary powers), authorities and discretions and may in all respects act as if he had been

originally appointed a trustee by the trust instrument.

Every trustee appointed by the Court shall, as well before as after the trust property

Remuneration of Trustees

Power to authorise remuneration.

50.

(whether or not appointed by the Court) to charge such remuneration for the services of the

trustee as the Court may think fit.

If satisfied that the circumstances justify the order the Court may authorise a trustee

Vesting Orders

Vesting orders of land.

51.

(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 mortgage or otherwise or entitled to a contingent right therein either solely or jointly

with any other person-

(i) is under a disability,

(ii) is out of the jurisdiction of the Court, or

(iii) cannot be found or being a corporation has been dissolved or has been removed

from the register of companies or has otherwise ceased to have a corporate

existence;

(c) where it is uncertain who was the survivor of two or more trustees jointly entitled to or

possessed of any land or interest in land;

(d) where it is uncertain whether the last trustee known to have been entitled to or

possessed of any land or 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 land or 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 land or

(1) In any of the following cases namely-

Copyright The Government of the Commonwealth of The Bahamas

interest in land;

(f) 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 release the right for twenty-eight days after the date of the

requirement;

(g) where land or any interest therein is vested in a trustee whether by way of mortgage or

otherwise and it appears to the Court to be expedient,

the Court may make an order (in this Act called a “vesting order”) vesting the land or interest

therein in such person in any such manner and for any such estate or interest as the Court may

direct or releasing or disposing of the contingent right to such person as the Court may direct.

(2) Where-

(a) the order is consequential on the appointment of a trustee, the land or interest therein

shall be vested for such estate as the Court may direct in the persons who on the

appointment are the trustees; and

(b) the order relates to a trustee entitled or formerly entitled jointly with another person and

such trustee is under a disability or out of the jurisdiction of the Court or cannot be

found or being a corporation has been dissolved or has been removed from the

register of companies or has otherwise ceased to have a corporate existence, 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.

52.

class of unborn persons who on coming into existence would in respect thereof become entitled

to or possessed of that land or 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

estate or 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.

Where land or any interest in land is subject to a contingent right in an unborn person or

Vesting order in place of conveyance by minor mortgagee.

53.

contingent right in land by way of security for money is a minor the Court may make an order

vesting or releasing or disposing of the land, the interest in the land or the right in like manner

as in the case of a trustee under a disability.

Where any person entitled to or possessed of any land or interest in land or entitled to a

Vesting order consequential on order for sale or mortgage of land.

54.

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

Where the Court gives a judgment or makes an order directing the sale or mortgage of

Copyright The Government of the Commonwealth of The Bahamas

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 mortgagee or in any other person.

Vesting order consequential on judgment for specific performance etc.

55.

or interest in land or for the partition or sale or exchange of any land or interest in land or

generally where any judgment is given for the conveyance of any land or 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 the land or any interest in the land or

any part thereof within the meaning of this Act; or

(b) that the interest 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 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.

Where a judgment is given for the specific performance of a contract concerning any land

Effect of vesting order.

56.

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 estate or 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 estate or 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.

A vesting order made under any of the foregoing provisions shall in the case of a vesting

Power to appoint person to convey.

57.

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.

In all cases where a vesting order can be made under any of the foregoing provisions the

Vesting orders as to stock and things in action.

58.

The Government of the Commonwealth of The Bahamas

(1) In any of the following cases, namelyCopyright

(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 who is entitled whether by way of mortgage or otherwise alone or

jointly with another person to stock or to a thing in action-

(i) is under a disability,

(ii) is out of the jurisdiction of the Court,

(iii) cannot be found or being a corporation has been dissolved or has been removed

from the register of companies or has otherwise ceased to have a corporate

existence,

(iv) neglects or refuses to transfer the 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 following the service of a request

in writing on him, or

(v) neglects or refuses to transfer the stock or receive the dividends or income thereof

or to sue for or recover a thing in action for twenty-eight days following the service

of an order of the Court for that purpose on him;

(c) where it is uncertain whether a trustee who is 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 a disability;

(e) where stock or a thing in action is vested in a trustee whether by way of mortgage 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 the 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.

(2) Where-

(a) 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) the person whose right is dealt with by the order was entitled jointly with another

person, the right shall be vested in the last-mentioned person either alone or jointly

with any other person whom the Court may appoint.

(3) 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.

(4) 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.

Copyright The Government of the Commonwealth of The Bahamas

(5) 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.

(6) 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 the provisions of this Act is to be

exercised.

(7) 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 property.

59.

land or any interest in any 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.

The powers conferred by this Act as to vesting orders may be exercised for vesting any

Vesting orders in relation to minor’s beneficial interest.

60.

application of the capital or income thereof for the maintenance, education or benefit of the

minor, make an order-

(a) appointing a person to convey such property; or

(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.

Where a minor is beneficially entitled to any property the Court may, with a view to the

Orders made upon certain allegations to be conclusive evidence.

61.

any of the following matters, namely-

(a) the personal incapacity of a trustee or mortgagee;

(b) that a trustee or mortgagee or the personal representative of or other person deriving

title under a trustee or mortgagee is out of the jurisdiction of the Court or cannot be

found or being a corporation has been dissolved or has been removed from the

register of companies or has otherwise ceased to have a corporate existence;

(c) that it is uncertain which of two or more trustees or which of two or more persons

interested in a mortgage 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 mortgagee or the last surviving person

interested in a mortgage is living or dead; or

(e) that any trustee or mortgagee has died intestacy without leaving a person beneficially

interested under the intestacy or has died and it is not known who is his personal

Where a vesting order is made as to any land under this Act founded on an allegation of

Copyright The Government of the Commonwealth of The Bahamas

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 shall not prevent

the Court from directing a reconveyance or surrender or the payment of costs occasioned by

any such order if improperly obtained.

Orders of Court to be registered.

62.

or any order having the effect of a conveyance or assignment of any land or any interest therein

or having the effect of a release or disposition of the contingent right of any unborn person or

class of unborn persons in any land, an office copy of such order shall be registered in the office

of the Registrar General and such order shall take effect upon and from the time of the

registration of such office copy.

In all cases where the Court shall, under the provisions of this Act, make a vesting order

Persons entitled to apply for orders.

63.

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 a disability or

not or on the application of any person duly appointed as trustee thereof.

(2) An order under this Act concerning any land or interest in land, stock or thing in action

subject to a mortgage may be made on the application of any person beneficially interested in

the equity of redemption, whether under a disability or not, or of any person interested in the

money secured by the mortgage.

(1) An order under this Act for the appointment of a new trustee or concerning any land or

Power to apply to the Court.

64.

summons for such order as he may deem himself entitled to, and may give evidence by affidavit

or otherwise in support of such summons, and may serve such summons on such persons as

he may consider appropriate.

Any person entitled under section 63 to apply for an order may apply to the Court by

Hearing of application.

65.

reference to the Registrar of the Court, to enquire into any facts which require such

investigation, or the Court may direct such application to stand over to enable the plaintiffs to

adduce evidence or further evidence before the Court, or to enable the summons to be served

on any person.

Upon the hearing of any such application the Court may, if it thinks necessary, direct a

Powers concerning costs.

66.

order under this Act or for any order or declaration in respect of any property subject to a trust,

or of and incidental to any such order or declaration, or any document executed or act

performed in pursuance thereof, to be raised and paid out of the property in respect whereof the

same is made and performed, or out of the income thereof, or to be borne and paid in such

The Court may order the costs and expenses of and incidental to any application for an

Copyright The Government of the Commonwealth of The Bahamas

manner by such persons as to the Court may seem just.

Power to make an order in a cause.

67.

the parties or by a report of the Registrar of the Court, the facts necessary for an order under

this Act appear to the Court to be sufficiently proved the Court may, either upon the hearing of

the cause or of any proceedings in the cause or matter, make such order under this Act.

Where in any cause or matter, either by evidence adduced therein or by the admission of

Medical evidence concerning person’s state of mind.

68.

unsound mind the Court may, if it thinks fit, direct that medical evidence be presented to it

concerning such person and postpone the making of an order upon such application until such

evidence has been presented.

Upon any application being made under this Act to the Court concerning a person of

Action may be directed.

69.

order upon the summons until the right of the applicant is declared in an action commenced for

the purpose.

Upon any summons under this Act being made to the Court, it may postpone making any

Jurisdiction of Court to vary trusts.

70.

the commencement of this Act under any will, settlement or other disposition, the Court may if it

thinks fit by order approve on behalf of-

(a) any person having directly or indirectly an interest whether vested or contingent under

the trusts who by reason of being a minor or other incapacity is incapable of assenting;

(b) any person (whether ascertained or not) who may become entitled directly or indirectly

to an interest under the trusts (whether discretionary or otherwise) as being at a future

date or on the happening of a future event a person of any specific description or a

member of any specified class of persons, so however that this paragraph shall not

include any person who would be of that description or a member of that class, as the

case may be, if the said date had fallen or the said event had happened at the date of

the application to the Court;

(c) any unborn person; or

(d) any person in respect of any discretionary interest of his under protective trusts where

the interest of the principal beneficiary has not failed or determined,

any arrangement (by whomever proposed and whether or not there is any other person

beneficially interested who is capable of assenting thereto) varying or revoking all or any of the

trusts or enlarging the powers of the trustees of managing or administering any of the property

subject to the trusts:

Provided that the Court shall not approve an arrangement on behalf of any person if carrying

it out would be detrimental to that person.

(1) Where property whether real or personal is held on trusts arising before, on or after

Copyright The Government of the Commonwealth of The Bahamas

(2) In the foregoing subsection “protective trusts” means an interest specified in paragraphs

(a) and (b) of subsection (1) of section 39 or any like trusts, “the principal beneficiary” has the

same meaning as in the said subsection (1), and “discretionary interest” means an interest

arising under the trust specified in paragraph (a) of the said subsection.

(3) Where capital or income of trust property is or may be applicable for a charitable purpose

the Court may if it thinks fit by order sanction in respect of that purpose the carrying out of any

arrangement (by whomever proposed and whether or not there is any person beneficially

interested capable of assenting thereto) varying or revoking all or any of the trusts or enlarging

the powers of the trustees of managing or administering any of the property subject to the trusts:

Provided that the Court shall not sanction the carrying out of any arrangement if it would be

detrimental to the purpose in respect of which such sanction is sought.

(4) In subsection (3) “charitable purpose” means an exclusive charitable purpose but does

not include an independent charitable company, association or other separate entity or

organisation.

(5) Nothing in the foregoing provisions of this section shall apply to trusts affecting property

settled by any written law.

Power of Court to authorise dealings with trust property.

71.

sale, lease, mortgage, surrender, release, or other disposition, or any purchase, investment,

acquisition, 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 or by law, the Court may by order confer upon the trustees,

either generally or in any particular instance, the necessary power for that 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 authorised to be expended and the costs of any transaction

are to be paid or borne as between capital and income.

(2) The Court may, from time to time, rescind or vary any order made under this section or

make any new or further order.

(3) 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.

(1) Where in the management or administration of any property vested in trustees any

Power to give judgment in absence of a trustee.

72.

any person who is made a defendant in the capacity of a trustee with a view to serving him with

a process of the Court but that he cannot be found, the Court may hear and determine the

action and give judgment therein against that person in his capacity as a trustee as if he had

been duly served or had entered an appearance in the proceedings and had also appeared by

his counsel and attorney at the hearing, but without prejudice to any interest he may have in the

matters in question in the proceedings in any other capacity.

Where in any proceedings the Court is satisfied that diligent search has been made for

Power to relieve trustee from personal liability.

Copyright The Government of the Commonwealth of The Bahamas

73.

agent of a corporate 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, on 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, whether or not he has

acted with the requisite degree of prudence, diligence and skill.

If it appears to the Court that a trustee (including a director, officer, employee, servant or

Power to make beneficiary indemnify for breach of trust.

74.

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

property by way of indemnity to the trustee or persons claiming through him.

(2) This section shall apply to breaches of trust committed before, on or after the

commencement of this Act.

(1) Where a trustee commits a breach of trust at the instigation or request or with the

Payment into Court by trustees.

75.

or securities belonging to a trust may pay the same into Court and the same shall, subject to

rules of court, be dealt with according to the orders of the Court.

(2) The receipt or certificate of the proper officer of the Court shall be a sufficient discharge to

the trustees for money or securities so paid into Court.

(3) Where money or securities 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

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.

(5) Every transfer, payment and delivery made in pursuance of any such order of the Court

shall be valid and shall 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.

(1) Trustees or the majority of trustees having in their hands or under their control money

On summons the Court may order the application of trust moneys.

76.

of the trust moneys, securities or other instruments so paid in or deposited as aforesaid or for

the investment and payment of any such moneys, or of any dividends or interest on any such

moneys, securities or other instruments and for the transfer and delivery out of such moneys,

securities and other instruments and for the administration of any such trusts generally upon a

summons to be presented in a summary way to the Court by such party or parties as to the

(1) Such orders as shall seem fit shall from time to time be made by the Court in respect

Copyright The Government of the Commonwealth of The Bahamas

Court appear to be competent and necessary in that behalf.

(2) Service of a summons referred to in subsection (1) shall be made upon such person or

persons as the Court shall determine and direct.

(3) Every order made upon any such summons shall have the same authority and effect and

shall be enforced and subject to rehearing and appeal in the same manner as if the same had

been made in an action regularly commenced in the Court.

(4) Where it appears that any such trust moneys cannot be safely distributed without the

commencement of an action, the judge may direct such action to be commenced.

Trustee may apply to Court for advice or direction.

77.

written statement for the opinion, advice or direction of the Court of Judge in Chambers on any

question respecting the management or administration of the trust property or the assets of any

testator or intestate.

(2) Such application shall be served upon and the hearing attended by all persons interested

in such application or such of them as the Judge thinks expedient.

(3) A trustee or personal representative acting upon the opinion, advice or direction given by

the Judge shall be deemed so far as regards his own responsibility to have discharged his duty

as such trustee or personal representative in the subject matter of the said application.

(4) Subsection (3) shall not extend to indemnify any trustee or personal representative in

respect of any act done in accordance with such opinion, advice or direction if he is guilty of any

fraud or wilful concealment or misrepresentation in obtaining such opinion, advice or direction.

(5) The costs of such application shall be in the discretion of the Judge.

(1) A trustee or personal representative may without commencing an action apply upon a

Application for advice or direction to be signed by counsel and attorney.

78.

of a Judge under section 77, the written statement shall be signed by a counsel and attorney

and the Judge may require the applicant to attend him by his counsel and attorney either in

Chambers or in Court where he deems it necessary to have the assistance of a counsel and

attorney.

Where any trustee or personal representative applies for the opinion, advice or direction

Court may make orders.

79.

effect to the provisions of sections 75, 76, 77 and 78.

The Court may make such orders as from time to time shall seem necessary to give

PART VI

SPECIAL PROVISIONS

Trustees to act by majority.

80.

(a) every decision made, resolution passed or power or discretion exercised by trustees is

(1) Subject to any provision contained in the trust instrument-

Copyright The Government of the Commonwealth of The Bahamas

valid if made, passed or exercised by a majority of the trustees if there are more than

two of them; and

(b) any deed or other instrument executed by a majority of the trustees pursuant to such a

decision, resolution or exercise of power or discretion is likewise valid as if it had been

executed by all the trustees.

(2) This section shall not apply to trusts in existence at the time this Act comes into

operation.

Protector of trusts.

81.

trustees of any of their powers and discretions shall be subject to the previous consent of the

settlor or of some other person as protector, and if so provided in the trust instrument the

trustees shall not he liable for any loss caused by their actions if the previous consent was given

and they acted in good faith.

(2) The trust instrument may confer on the settlor or on any protectors any powers including

(without limitation) power to do any one or more of the following-

(a) determine the law of which jurisdiction shall be the proper law of the trust;

(b) change the forum of administration of the trust;

(c) remove trustees;

(d) appoint new or additional trustees;

(e) exclude any beneficiary as a beneficiary of the trust;

(f) add any person (including the settlor and any private or charitable trust or foundation)

as a beneficiary of the trust in addition to any existing beneficiary of the trust;

(g) give or withhold consent to specified actions of the trustee either conditionally or

unconditionally; and

(h) release any of the protectors’ powers.

(3) A person exercising any one or more of the powers set forth in paragraphs (a) to (h) of

subsection (2) shall not by virtue only of such exercise be deemed to be a trustee and, unless

otherwise provided in the trust instrument, is not liable to the beneficiaries for the

(1) A trust instrument may contain provisions by virtue of which the exercise by thebona fide

exercise of the power.

(4) A person shall not charge any remuneration for his services as protector unless otherwise

provided in the trust instrument.

Managing Trustee.

82.

trustee’s powers may be reserved to a managing trustee and no other trustee shall be liable for

any of the decisions, acts or transactions of the managing trustee in so far as they amount to

A trust instrument may contain provisions by virtue of which the exercise of any of the

Copyright The Government of the Commonwealth of The Bahamas

exercise of powers reserved by the trust instrument to the managing trustee.

83.

(a) trustees of trusts declared

take reasonable steps to inform each beneficiary who has, but may not be aware of

having, a vested interest under the trusts (whether or not in possession and whether or

not subject to defeasance) of the existence of the trusts and of the general nature of

that interest; and

(b) at any time when there are no beneficiaries with such vested interests, trustees of

trusts declared

reasonable steps to ensure that at least one person who is capable of enforcing the

trusts (whether as a beneficiary with a contingent interest, or as the object of a

discretionary power or otherwise howsoever) is aware of the existence of the trusts and

of the general nature of the interest entitling him to enforce them:

Provided that no information shall be given if the trustees in their absolute discretion consider

that it would not be in the best interest of the beneficiary to give the information.

(2) Where a beneficiary entitled to information under subsection (1)(a) is a minor or is

determined by the trustees acting in good faith to be mentally incapacitated, the trustees shall

give information under subsection (1) not to the beneficiary but to the parents or duly appointed

legal guardians of the minor beneficiary, or (as the case may be) the duly appointed receivers,

conservators, curators or other legal representatives of the beneficiary determined by the

trustees to be mentally incapacitated:

Provided that no information shall be given if the trustees in their absolute discretion consider

that it would not be in the best interest of the beneficiary to give the information.

(3) Save as provided by subsections (1)(b) and (2), and unless a person vested by the trust

instrument with power to request or approve disclosure requests or approves such disclosure,

trustees shall be under no legal obligation to disclose the existence of their trusts to-

(a) any beneficiaries who are interested only contingently on their surviving other

beneficiaries or the settlor, or on the occurrence of other events;

(b) any persons who are only objects of discretionary powers; or

(c) any other persons who are not entitled to vested interests (whether or not in

possession and whether or not subject to defeasance) under the trusts.

(4) Subject to the provisions of subsection (9), trustees may nonetheless in their absolute

discretion without any such request or approval disclose the existence of their trusts to such

persons as are mentioned in subsection (3)(a), (b) or (c) if such disclosure is necessary or

convenient in connection with distributions to such persons, or if the trustees in their absolute

discretion consider such disclosure to be in the interest of the trust as a whole.

(5) The following provisions shall have effect with respect to the disclosure of documents

The Government of the Commonwealth of The Bahamas

(1) Subject to the provisions of subsection (2)-inter vivos or otherwise shall be under a legal obligation tointer vivos or otherwise shall be under a legal obligation to takeCopyright

(a) unless a person vested by the trust instrument with power to request or approve

disclosure requests or approves such disclosure, trustees shall be under no legal

obligation to disclose to any such persons as are described in subsection (3)(a), (b) or

(c) the documents described in subsection (6) or any other documents or information;

(b) subject to the provisions of subsection (9), trustees may nonetheless in their absolute

discretion, without any such request or approval, disclose the documents described in

subsection (6) and any other information about their trusts to such persons as are

described in subsection (3)(a), (b) and (c) at the expense of those persons;

(c) subject to the provisions of subsection (5)(d), trustees shall be under a legal obligation

at the request and expense of any beneficiaries having vested interests (whether or not

in possession and whether or not subject to defeasance) under the trusts to disclose to

such beneficiaries the documents described in subsection (6);

(d) in the case of minor and mentally incapacitated beneficiaries the provisions of

subsection (2) shall have effect in relation to the disclosure of documents under

subsection (5)(c) as they do in relation to the giving of information under subsection

(2);

(e) subject to the provisions of subsection (9), trustees may in their absolute discretion

disclose to any beneficiaries having such vested interests any other information about

the trust property and its administration.

(6) The documents referred to in subsection (5) are-

(a) the trust instrument and all other documents in which the terms of the trust or any

exercise of any trust, power or discretion are to be found;

(b) all financial statements of the trust; and

(c) all financial statements of companies wholly owned by the trustees as trustees of the

trust.

(7) When disclosing any documents or information to any beneficiary or other person the

trustees shall, if other beneficiaries have requested confidentiality or if the trustees in their

absolute discretion determine confidentiality to be in the best interest of such other

beneficiaries, take all reasonable steps to secure the right to confidentiality of the other

beneficiaries by providing such beneficiary or other person only with such documents or

information as shall enable that beneficiary’s own true entitlement and actual interest or benefits

under the trust to be determined; such documents and information may include copies or

certified extracts of the trust instrument or other documents and copies of advices or statements

from which the names and interests of other beneficiaries have been edited or deleted in order

to preserve the confidentiality to which such other beneficiaries are entitled.

(8) Notwithstanding anything to the contrary in this section, trustees shall not be bound or

compelled by any process of discovery or inspection or under any equitable rule or principle to

disclose or produce to any beneficiary or other person any of the following documents, that is to

say-

(a) any memorandum or letter of wishes issued by the settlor or any other person to the

Copyright The Government of the Commonwealth of The Bahamas

trustees, or any other document recording any wishes of the settlor;

(b) any document disclosing any deliberations of the trustees as to the manner in which

the trustees should exercise any discretion of theirs or disclosing the reasons for any

particular exercise of any such discretion or the material upon which such reasons

were or might have been based; or

(c) any other document relating to the exercise or proposed exercise of any discretion of

the trustees (including legal advice obtained by them in connection with the exercise by

them of any discretion).

(9) Without prejudice to the provisions of subsection (10), no disclosure of the kind otherwise

required or permitted by subsections (4), (5)(b) or (5)(e) shall be made by the trustees in breach

of any prohibition or restriction of such disclosure contained in the trust instrument.

(10) No such prohibition or restriction, and nothing in this section, shall prejudice the validity

of any trusts or the entitlement of any beneficiaries who have in any manner become aware of

any trusts to obtain orders of the Court for administration or accounts, or for the execution of the

trusts, or any other order of the Court not being an order for the discovery, inspection,

disclosure or production of such documents as are described in subsection (8), or for any

information or disclosure which by subsection (2), (3), (5)(a) or (7) trustees are under no legal

obligation to make.

Validation of appointments where objects are excluded or take illusory shares.

84.

more objects shall be invalid on the ground that-

(a) an unsubstantial, illusory or nominal share only is appointed to or left unappointed to

devolve upon any one or more of the objects of the power; or

(b) any object of the power is thereby altogether excluded,

but every such appointment shall be valid notwithstanding that any one or more of the objects is

not thereby, or in default of appointment, to take any share in the property.

(2) This section shall not affect any provision in the instrument creating the power which

declares the amount of any share from which any object of the power is not to be excluded.

(3) This section shall apply to appointments made before, on or after the commencement of

this Act.

(1) No appointment made in exercise of any power to appoint any property among two or

Validity or powers and discretionary trusts.

85.

a trust, or to appoint trust property among a class of persons, nor any discretionary trusts, shall

be invalid on the ground that it is not possible to ascertain with certainty all the potential

beneficiaries of the power or trust, or on the ground that the class of potential beneficiaries is

unlimited, or limited only by the exclusion of specified persons.

(2) The validity of a trust shall not be prejudiced by the inclusion of any power of discretion

(1) Neither powers for trustees, settlors, protectors or others to add to the beneficiaries of

Copyright The Government of the Commonwealth of The Bahamas

whose validity is preserved by subsection (1).

Power to continue to accumulate income.

86.

which does not contravene the Perpetuities Act, 1995-

(a) the trustees may in their absolute discretion give effect to that direction notwithstanding

any demand for the distribution of income or accumulations of income by any

beneficiary or beneficiaries entitled to give a valid receipt for them and entitled (apart

from this section) to put an end to the accumulation of income; and

(b) notwithstanding anything contained in any written law to the contrary or any rule of law

or equity, the beneficiaries shall not be entitled to vary the trusts so as to modify or

remove the discretion conferred on the trustees by this section.

(2) This section shall apply if and so far only as a contrary intention is not expressed in the

trust instrument and shall have effect subject to the terms of that instrument.

(1) When a trust instrument expressly directs the accumulation of income for a period

Termination and modification by beneficiaries.

87.

beneficiary who is solely interested in the trust property, nor all the beneficiaries who together

are all the persons interested in it, shall be entitled, though in existence and ascertained and of

full capacity, to terminate or modify the trusts affecting the property, if this would defeat a

material purpose of the settlor or testator in creating the trust, unless the settlor is living and

also consents.

(2) The material purposes of the settlor or testator for the purpose of subsection (1) may be

ascertained from the trust instrument (directly or by inference) or by collateral evidence.

(1) Notwithstanding any rule of equity or practice of the Court to the contrary, neither a

Distribution of shares.

88.

whether or not readily divisible, shall not be entitled to demand the distribution of that share if its

distribution would prejudice the value of any other share of the trust property which is not yet

distributable.

(2) This section shall not apply to trusts in existence at the time this Act comes into

operation.

(1) Beneficiaries entitled to a share of trust property, whether real or personal and

Apportionment between capital and income.

89.

Dartmouth, the Rule in Re Earl of Chesterfield’s Trust and the Rule in Allhusen v. Whittel are

abolished in all their branches.

(2) Whenever trustees in their discretion determine that property held by them for successive

interests is not (when considered as a whole) so invested as to maintain a fair balance between

beneficiaries interested in current income and other beneficiaries or that a particular receipt

disturbs that balance, the trustees shall apportion income receipts to capital of the trust property

or estate or apportion capital receipts to income of the trust property or estate so far (if at all) as

(1) The rules of equitable apportionment known as the Rule in Howe v. Earl of

Copyright The Government of the Commonwealth of The Bahamas

they in their discretion consider necessary in order to restore such balance.

(3) On the application of a beneficiary (whether or not under a disability) aggrieved by any act

or failure to act by trustees under subsection (2) the Court may give such directions as the Court

may think fit for the purpose of redressing such grievance.

(4) A trustee who has acted in good faith shall not be personally liable for the costs of any

other party to any such application and the costs of such a trustee of such an application shall

be provided for out of the trust property or its income.

(5) Subsections (2), (3) and (4) shall apply if and so far only as a contrary intention is not

expressed in the trust instrument and shall have effect subject to that instrument.

Incorporation by reference.

90.

Schedule, in which case the following expressions appearing in the provisions have, unless a

contrary intention appears in the trust instrument, the meanings respectively assigned to them-

“the Trust” means the trust created by the trust instrument;

“the Trustee” means the trustee for the time being of the Trust;

“the Trust Fund” means-

(a) the property in respect of which trusts are declared;

(b) all property paid or transferred to or other wise vested in and accepted by the Trustee;

(c) all income which, in accordance with the provision of the trust instrument, is

accumulated by the Trustee and added to the capital thereof; and

(d) all money, investments and other property from time to time representing all property

and income, mentioned in paragraphs (a), (b) and (c) and any part of the said property

or income,

and section 2 shall apply to the First Schedule.

A trust instrument may incorporate by reference any of the provisions set out in the First

Memorandum of trust property.

91.

vested in or accepted by the trustees is in the absence of fraud conclusive evidence of the

payment, transfer or other vesting.

A memorandum signed by the trustees as to property paid or transferred to or otherwise

PART VII

FISCAL AND REGULATORY PROVISIONS

Trust Duty.

92.

does not create a bare trust shall be liable, instead of stamp duty, to a duty called “the trust

duty” in the sum of fifty dollars.

(1) Every trust instrument of which the proper law is the law of The Bahamas and which

Copyright The Government of the Commonwealth of The Bahamas

(2) The payment of the trust duty shall be denoted or expressed by the affixing of a Bahamas

revenue stamp to the trust instrument.

(3) A trust instrument shall be deemed to be duly stamped only when one of the persons

executing the trust instrument cancels the revenue stamp by writing on or across the same the

name or initials of the trustee or the person acting on behalf of a corporate trustee as well as the

date on which the name or initials of the person is affixed.

(4) A trust instrument not stamped and cancelled in accordance with the provisions of

subsection (3) shall not be admissible in civil proceedings, provided that a trust instrument may

in the discretion of the Court be admissible in such proceedings on proof of the payment of the

trust duty together with a penalty in the sum of one hundred dollars for each calendar year from

the execution of the trust instrument:

(5) Any trust instrument that is liable to trust duty need not be produced to the Treasury, Post

Office or any other public body for purposes of payment of trust duty.

(6) No trust instrument of which the proper law is the law of The Bahamas shall, except in

criminal proceedings, be pleaded or given in evidence or admitted to be good, useful or

available in law or in equity, unless it is duly stamped with trust duty in accordance with the law

in force at the time when it was first executed.

(7) The penalty referred to in subsection (4) shall be paid in the same manner as the trust

duty under subsections (2) and (3) or in such other manner as the Minister may by order direct.

(8) This section applies only to trust instruments executed after this Act comes into operation.

Exemptions from tax.

93.

inheritance tax, succession tax, gift tax, rate, duty, levy or other charge is payable by any

beneficiary who is treated as non-resident for Exchange Control purposes in respect of any

distribution to him by the trustee of any trust.

(2) Notwithstanding any provision of the Stamp Act, where all the beneficiaries of a trust are

persons who are treated as non-resident for Exchange Control purpose, the trust shall be

exempt from the payment of stamp duty with respect to-

(a) all deeds and other written instruments of appointment made pursuant to the trust;

(b) all deeds and other written instruments by which assets are transferred to or from the

trustee of the trust; and

(c) all instruments relating to the transfer of beneficial interests in the trust.

(3) The exemptions in this section shall riot apply to any trust which-

(a) has as an underlying asset land in The Bahamas; or

(b) carries on a business or trade in The Bahamas.

(1) Notwithstanding any law to the contrary, no income tax, capital gains tax, estate tax,

Exemption from registration.

Copyright The Government of the Commonwealth of The Bahamas

94.

(a) any deed creating a trust;

(b) all deeds of appointment made pursuant to the terms of a trust; and

(c) all other deeds (but not including conveyances of Bahamian real property or

personality) executed by the trustees, settlors, beneficiaries or protectors of a trust

pursuant to the powers and discretions specified in the trust instrument,

are exempt from registration under the provisions of the Registration of Records Act.

(2) The exemption granted by subsection (1) shall apply to all deeds referred to therein

executed before, on or after the date when this Act comes into operation.

(1) Notwithstanding any provisions of the Registration of Records Act-

Exemption from Exchange Control Regulations.

95.

beneficiary who is treated under this Act as non-resident for Exchange Control purposes.

(2) The provisions of this section shall apply to all trusts in existence at the time of the

coming into operation of this Act as well as to those trusts coming into existence on or after the

coming into operation of this Act.

(1) The Exchange Control Regulations Act shall not apply to any settlor, grantor, donor or

Application of Act.

96.

this Act applies thereto, executorships and administratorships, constituted or created either

before, on or after the commencement of this Act.

This Act, except where otherwise expressly provided, applies to trusts including, so far as

Savings.

97.

commencement of this Act except as other wise hereinbefore expressly provided.

This Act shall not affect the legality or validity of anything done before the

Indemnity.

98.

indemnity to all persons for any acts 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 has jurisdiction to make it.

This Act and every order purporting to be made under this Act shall be a complete

SCHEDULE

TRUST PROVISIONS

(Section 90)

Trust for sale.

1.

the Trust Fund upon trust to sell the same with power to postpone the sale thereof or of any part

thereof for such period as they shall in their absolute discretion think fit and: shall stand

possessed of all other investments comprised in the Trust Fund Upon Trust at such discretion

either to retain the same in the existing state thereof for such period as they shall think fit or at

(1) The Trustees shall stand possessed of any real property from time to time comprised in

Copyright The Government of the Commonwealth of The Bahamas

any time or times to sell the same or any part thereof.

(2) The Trustees shall hold the net proceeds of any sale of investments comprised in the

Trust Fund and all other moneys held or received by them as capital moneys Upon Trust to

invest the same at their discretion in or upon authorised investments with power to vary or

transpose such investments for or into any others of a like nature.

Powers of investment.

2.

the Trustees shall have the widest powers of investing disposing of and dealing with the Trust

Fund and of carrying out any transaction whatever in connection with the Trust Fund which is

lawfully capable of being performed by beneficial owners to the same effect as if such powers

were expressly conferred by this instrument and specified

include but are not limited to investment in the purchase of, or upon the security of, such

common or preferred stocks shares mutual fund shares unit trust units or other securities or

commodities (including precious metals) bonds notes debentures certificates of deposit or time

deposits derivative securities land or other investment or property of whatever nature (and

whether or not income-producing or paying dividends or interest) and whether involving

liabilities or not or upon such personal credit with or without security as the Trustees in their

absolute discretion think fit and the Trustees may exercise or omit to exercise all or any of such

powers in their absolute and uncontrolled discretion as if they were the absolute beneficial

owners of the Trust Fund.

In the management and administration of the Trust Fund fur the benefit of the beneficiariesin extenso and such powers shall

Power with regard to mode of application of capital and income.

3.

appropriate or apply the Trust Fund or any income thereof for the benefit of any beneficiary may

at the discretion of the Trustees be validly exercised (without prejudice to the generality of such

power or to any other mode of application)-

(a) by paying or transferring the same to the trustees of any settlement (whether or not

such trustees are resident in The Bahamas and whether or not the proper law of such

settlement is the law of The Bahamas) the provisions of which are in the opinion of the

Trustees for the benefit of such beneficiary notwithstanding that such settlement may

also contain trusts, powers or provisions (discretionary or otherwise) in favour of other

persons or objects provided however that no such payment or transfer shall be made

so as to infringe any applicable rule against perpetuities; or

(b) (in the case of any such person who is a minor) by paying or transferring the same to

such minor’s parent or guardian or some other person for the time being having the

care or custody of such minor upon the recipient undertaking to apply the same for the

benefit of the minor,

and the Trustees shall not thereafter be under any obligation to see to the further application of

the capital or income so paid or transferred and the receipt of such trustees parent guardian or

other person shall be a full sufficient and complete discharge to the Trustees.

Any power by this instrument or by law conferred on the Trustees to pay transfer

Additional powers.

4.

The Trustees shall have the following powers in addition and without prejudice to those

Copyright The Government of the Commonwealth of The Bahamas

conferred by law-

(a) power to receive any property from any person as an addition to the Trust Fund either

by gift

otherwise;

(b) power to borrow on the security of the Trust Fund and for such purpose to make any

outlay out of the Trust Fund or the income thereof and to enter into such contracts

mortgages charges or undertakings relating thereto as the Trustees may in their

absolute discretion think fit;

(c) power to lend any part of the Trust Fund to any person (whether or not a beneficiary)

upon such terms (if any) as to security repayment rate of interest and otherwise as the

Trustees in their absolute discretion may determine;

(d) with respect to any property compromised in the Trust Fund power to exercise all

powers relating thereto as if beneficially entitled thereto and without being restricted in

any way by the office of trustee including (without prejudice to the generality of the

foregoing power)-

(i) power to vote upon or in respect of any shares securities bonds notes or other

evidence of interest in or obligations of any corporation trust association or

concern whether or not the exercise of such power affects the security or the

apparent security of the Trust Fund or any transaction affecting any assets of any

such corporation trust association or concern,

(ii) power to deposit any such shares securities or property in any voting trust or with

any depository designated thereby, and

(iii) power to give proxies or powers of attorney with or without power of substitution

for voting or acting on behalf of the Trustees as the owners of any such property;

(e) power (at the expense of the Trust Fund) to incorporate or register or to procure the

incorporation or registration of any company (with limited or unlimited liability) in any

part of the world for any purpose including the acquisition of the Trust Fund or any part

thereof and so that (if thought fit) the consideration for the sale of the Trust Fund to any

such company may consist wholly or partly of fully paid shares debentures debenture

stock or other securities of the company credited as fully paid which shall be allotted to

or otherwise vested in the Trustees and be capital moneys in the Trustees’ hands;

(f) power at any time to apply any part of the Trust Fund or the income thereof in effecting

or joining in effecting or otherwise acquiring any policy of assurance on the life of any

beneficiary or of any other person or any endowment or other policy and to maintain

surrender exchange or exercise any option thereunder or otherwise deal with such

policies as if the Trustees were absolutely entitled thereto;

(g) power to pay out at any time any part of the Trust Fund in purchasing or acquiring or

making improvements in or repairs to or on any land (whether freehold, leasehold or of

any other tenure or interest and of whatsoever description and situate in any part of the

world) in the occupation of or intended for occupation by any beneficiary and power to

permit any beneficiary to occupy until sale any land purchased or acquired as aforesaid

inter vivos or by will or under the provisions of any other settlement or trust or

Copyright The Government of the Commonwealth of The Bahamas

or otherwise comprised in the Trust Fund upon such terms (as to payment or

non-payment of rent outgoings repairs or otherwise) as the Trustees may think fit;

(h) power at any time or times to lay out any part of the Trust Fund in the purchase or

other acquisition of any yachts boats motor vehicles works of art household furniture

plate linen china cutlery other articles of household use ornament or equipment and

other chattels for the use of any beneficiary whether occupying land purchased or

acquired as aforesaid or otherwise and power to hand over to any such beneficiary for

his use any property so purchased or acquired by the Trustees as aforesaid or

otherwise forming part of the Trust Fund upon and subject to such terms and

conditions (if any) as to insurance preservation maintaining inventories and otherwise

as the Trustees think fit;

(i) power to grant options for such consideration and exercisable at such time or times or

within such period as the Trustees think fit for the purchase of any property subject to

the trusts of this instrument or the acquisition of any interest therein;

(j) power to keep the Trust Fund either in or out of The Bahamas and if the Trustees think

fit to hold in any part of the world all or any securities or other property in bearer form

or registered in the names of the Trustees or of nominees without disclosing the

fiduciary relationship;

(k) in the event of any duties fees or taxes whatsoever becoming payable in any part of

the world in respect of the Trust Fund or any part thereof in any circumstances

whatsoever power to pay all such duties fees or taxes out of the Trust Fund or the

income thereof with discretion as to the time and manner in which the said duties fees

or taxes shall be paid and the Trustees may pay such duties fees or taxes

notwithstanding that the same shall not be recoverable from the Trustees or from any

persons interested under the trusts of this instrument or that the payment shall not be

to the advantage of such persons;

(l) power to make execute and deliver deeds assignments transfers leases mortgages

instruments of pledge creating liens contracts and other instruments sealed and

unsealed;

(m) power to institute prosecute and defend any suits or actions or other proceedings

affecting the Trustees or the Trust Fund and to compromise any matter of difference or

to submit such matter to arbitration and to compromise or compound any debt owing to

the Trustees or any other claims and to adjust any disputes in relation to debts or

claims against them as the Trustees think fit upon evidence that the Trustees consider

sufficient and to make partition upon such terms (including if thought fit the payment or

receipt of equality money) as the Trustees consider desirable with co-owners or joint

tenants having any interest in any property in which the Trustees are interested and to

make partition either by sale or by set-off or by agreement or otherwise;

(n) power to make any distribution of the Trust Fund pursuant to the trusts of this

instrument in cash or in kind or partly in cash and partly in kind and in the case of a

distribution to more than one person not strictly rateably but on the basis of equal or

other proportionate value (as the case may require) according to the judgment of the

Copyright The Government of the Commonwealth of The Bahamas

Trustees which shall be binding on all persons interested under this instrument;

(o) power to take at the expense of the Trust Fund or the income thereof the opinion of a

counsel and attorney or foreign lawyer concerning any question arising under this

instrument or on any matter in any way relating to the Trust Fund or the duties of the

Trustees in connection with this instrument and the trustees shall not be liable for any

action taken in good faith pursuant to or otherwise in accordance with the opinion or

advice of such counsel and attorney;

(p) power-

(i) to engage the services of such investment counsel adviser of manager (“the

Investment Adviser”) as the Trustees may from time to time think fit (including the

settlor or any of the Trustees or any parent subsidiary or affiliate or any of the

Trustees) in order to obtain advice on the investment and reinvestment of the Trust

Fund AND to delegate to the Investment Adviser without being liable for any

consequential loss, discretion to manage the portfolio or any part thereof within the

limits and for the period stipulated by the Trustees AND the Trustees-

(A) shall settle the terms and conditions for the remuneration of the Investment

Adviser and the reimbursement of the Investment Adviser’s expenses as in

their uncontrolled discretion they consider proper and such remuneration

and expenses may be paid by the trustees from and out of the Trust fund,

and

(B) shall not be liable for any action taken in good faith pursuant to or otherwise

in accordance with the advice of the Investment Adviser,

(ii) to employ and pay at the expense of the capital or income of the Trust Fund any

agent or agents in any part of the world whether counsel and attorneys or foreign

lawyers bankers accountants stockbrokers managers or other persons (including

the settlor or any of the Trustees or any parent subsidiary or affiliate of any of

them) to transact any business or to do any act requiring to be transacted or done

in execution of the trusts of this instrument including the receipt and payment of

money and the execution of documents AND in any such event the Trusts or

parent subsidiary or affiliate of a Trustee shall be entitled to charge and be paid

and to retain for his or its own account all usual professional and other fees and

commissions normally paid for such services including fees and commissions

shared with other agents;

(q) power for all or any of the Trustees-

(i) to exercise or join or concur in exercising all or any of the powers and discretions

by this instrument or by law given to the Trustees notwithstanding that any such

Trustee may have a personal interest in the mode or result of exercising any such

power or discretion or may be interested therein in some other fiduciary capacity

but any Trustee may abstain from acting except as a merely formal party in any

matter in which he may be so interested as aforesaid and may allow his

co-trustees to act alone in the exercise of such powers and discretions in relation

Copyright The Government of the Commonwealth of The Bahamas

to such matter, and

(ii) to purchase or sell any property notwithstanding that the vendor or purchaser is

the same as or includes the Trustees or any of them provided that the price

payable on any such purchase or sale is certified as fair and reasonable by an

assessor employed for the purpose by the Trustees;

(r) power to effect any transaction concerning or affecting the Trust Fund or any other

property whatsoever and to do all other acts and things which the Trustees may in their

absolute discretion think expedient and in the interests of the Trust Fund or any

beneficiary and for the purpose of this subparagraph “transaction” includes any sale

exchange assurance conveyance grant lease surrender reconveyance release

reservation or other disposition and any purchase or other acquisition and any

covenant contract licence option right or pre-emption and any compromise or partition

and any company reconstruction or merger or consolidation and any other dealing or

arrangement and “effect” has the meaning appropriate to the particular transaction and

references to property include references to restrictions and burdens affecting the

property;

(s) all the powers for sale (by public auction or private contract) exchange mortgaging

leasing or other disposition management repair building and improvement and all other

powers of an absolute beneficial owner in respect of any property for the time being

comprised in the Trust Fund;

(t) power at any time in the Trustees’ discretion and on such terms as they consider fit to

appropriate or to apply the capital or income of the Trust Fund or any part thereof in

order to secure the payment of money owed by any beneficiary or by any company

wholly or partially owed by any beneficiary for the performance of any obligations of

any beneficiary or his company and to give any guarantee or to become surety for any

beneficiary or his company and for such purposes to mortgage or charge any

investments or property for the time being forming part of the Trust Fund or to deposit

or transfer any such investments or property with or to any person by way of security;

(u) power from time to time by deed revocable or irrevocable wholly or partially to release

extinguish or restrict any power by this instrument or by law conferred on the Trustees

notwithstanding the fiduciary nature of any such power (but not so as to invalidate any

prior exercise thereof; and

(v) power to omit to register bonds or securities.

Dividends and other income.

5.

other income received shall be treated for all purposes as income accruing at the due date of

payment whether or not such dividends or income may have been earned and accrued wholly

or partially in respect of a period prior to such date.

Unless the Trustees in their absolute discretion otherwise determine all dividends and

Protection or third parties in dealings with trustees.

6.

Trustees shall be concerned to enquire into the propriety or validity of any act of the Trustees or

(1) No person dealing with the Trustees and no purchaser on any sale made by the

Copyright The Government of the Commonwealth of The Bahamas

to see to the application of any money paid or property transferred to or upon the order of the

Trustees.

(2) No firm association or corporation any of whose securities are comprised in the Trust

Fund and no purchaser or person dealing with any trustee purporting to act upon any delegation

of authority from any other trustee shall be required to ascertain or enquire whether a case

exists in which such delegation is permitted or whether such delegated authority is still

subsisting.

(3) When anything is dependent upon the value of any property or the existence of any fact a

certificate of the Trustees as to such value or fact shall be conclusive in favour of anyone acting

thereon in good faith.

Power in relation to underlying company.

7.

a parent subsidiary or affiliate of such corporate trustee may act as a director officer manager or

employee of any company whose shares or debentures may be comprised directly or indirectly

in the Trust Fund or as a director officer manager or employee of any subsidiary or holding

company of any such company and may retain for himself or itself any remuneration which he or

it may receive as such director officer manager or employee notwithstanding that any votes or

other rights attaching to such shares or debentures may have been instrumental in procuring or

continuing for him or it his or its position as such director officer manager or employee or that

his or its qualifications for any such position may be constituted in part or in whole by any such

shares or debentures.

Any trustee of this instrument and director officer or employee of a corporate trustee or of

Trustee not bound to interfere with entity’s management.

8.

(a) shall be under no duty to keep themselves informed concerning the business or affairs

of any special entity the shares of which or some of the shares of which form a part of

the Trust Fund or concerning the management or administration thereof by its directors

officers agents employees or any of them or to interfere in the management

administration operations or activities of any special entity;

(b) are hereby authorised to permit the shares of any special entities to be held and

registered in the names of their own corporate nominees and shall cause the voting

and other rights attached to shares of special entities to be exercised only pursuant to

written instructions received by the Settlor or the Protector (if appointed), or a

management or other committee (if appointed) who shall be solely responsible for

ascertaining when any such rights shall become exercisable and for providing the

Trustees with appropriate instructions in a timely manner;

(c) in no circumstance whatsoever shall be liable to the Settlor the Trust or any of its

Beneficiaries or any other person or persons having an interest in the Trust, for any

special entity or its management administration operations or activities or the

investment of its funds or the exercising of any voting or other rights pursuant to

instructions received from the Settlor or the Protector or the failure to exercise any

such rights in the absence of timely instruction.

(1) Trustees-

Copyright The Government of the Commonwealth of The Bahamas

(2) For the purpose of this clause “special entity” means any company partnership or other

entity so designated in this instrument or subsequently in writing by the Settlor or the Protector if

appointed.

Determination of rights to capital and income.

9.

(a) to treat as income or as capital or to apportion between income and capital any

dividends bonus shares rights interest rents issues capital gains and profits derived

from any property at any time comprise in the lust Fund and generally to determine as

the Trustees consider just and reasonable according to the respective rights and

interests of the persons interested what part of the receipts of the Trust is income and

what is capital and whether or not such property is wasting or unproductive or was

purchased at a premium or discount and notwithstanding the time when such dividends

stock dividends bonus shares rights interest rents issues capital gains or profits were

earned accrued declared or paid;

(b) to make such reserves out of income or capital as the Trustees consider proper for

expenses taxes and other liabilities of the Trust;

(c) to pay from income or from capital or to apportion between income and capital any

expenses of making or changing investments and of selling exchanging or leasing

including brokers’ commissions and charges and generally to determine what part of

the expenses of the Trust shall be charged to capital and what part to income; and

(d) to determine as between separate funds and separate parts of shares, the allocation of

income gains profits and losses and distributions.

Without prejudice to any jurisdiction of the Court the Trustees shall have power-

Incapacitation of Settlor or Beneficiary.

10.

shall during his incapacitation be exercisable by the Protector (if appointed) or by any person

appointed for that purpose by the Court declaring him to be incapacitated.

(2) If a Beneficiary shall become incapacitated then the Trustees may during his

incapacitation apply income or capital of the Trust Fund for his benefit by paying the same to a

court appointed guardian receiver or other such person and without being liable to see to the

due and proper application thereof by such person.

(3) For the purpose of this clause a person shall be deemed to be incapacitated if declared to

be of unsound mind by a court of competent jurisdiction or if declared by two qualified

examining physicians to be of unsound mind or physically impaired so as to be unable to act

responsibly prudently or effectively and shall be deemed to remain incapacitated until declared

otherwise by such court or such physicians.

(4) The Trustees may also declare a person to be incapacitated during any period in which

the Trustees are of the opinion that such person is for any reason whatsoever, unable freely to

exercise his rights or powers or to fulfil his duties or obligations hereunder because of political

events or circumstances in any country or because of pressure brought to bear on such person

by any other person or persons or because of any other form of duress or improper influence

(1) If the Settlor becomes incapacitated then the rights or powers (if any) reserved to him

Copyright The Government of the Commonwealth of The Bahamas

upon such person:

Accountability of Trustees.

11.

them from any company in which stocks debentures or other securities are for the time being

held by the Trustees as trustees hereof except to the extent (if any) to which such remuneration

or other benefit is received by the Trustees by reason of such shares stocks debentures or

other securities being in the names of the Trustees as trustees hereof.

THE Trustees shall not be accountable for any remuneration or other benefit received by

Liability of for loss.

12.

improper investment made in good faith or in consequence of the failure depreciation or loss of

any investment or investments made in good faith or for the negligence or fraud of any agent

employed by such Trustee or by any other Trustee hereof although the employment of such

agent was not strictly necessary or expedient or by reason of any mistake or omission made in

good faith by any Trustee hereof or by reason of any other matter or thing except wilful and

individual fraud or wrongdoing on the part of the Trustee who is sought to be made liable.

NO Trustee shall be liable for any loss to the Trust Fund arising by reason of any

Liability of Trustees to third party.

13.

for any liability, loss or expense incurred hereunder and for any judgment recovered against and

paid by the Trustees as such other than liability loss expense or judgment arising out of the

wilful misconduct or gross negligence of the Trustees in bad faith.

THE Trustees shall be entitled to exoneration and indemnification out of the Trust Fund

Trustees right to Indemnity.

14.

complete release from and indemnity against any and all liabilities whatever attributable to any

act or omission to act in any manner whatsoever with respect to the investment of the assets of

the Trust Fund retention of any or all trust assets and the sale or disposition of any or all trust

assets and any release or indemnity given hereunder shall be conclusively binding on all

Beneficiaries and other persons having an interest in the Trust Fund (including minors and

unborn issue heirs or appointees who may then have or thereafter acquire any interest in the

Trust Fund).

THE Trustees shall have power to secure from the Settlor or any Beneficiary a full and

Powers and discretions.

15.

be an absolute and uncontrolled power or discretion and the Trustees shall not be liable for loss

or damage occurring as a result of the Trustees in good faith exercising or refusing or failing to

exercise any of such powers or discretions.

EVERY power and discretion conferred upon the Trustees by law or by the Settlor shall

No bond required.

16.

security for the due and faithful administration of the Trust Fund or for the discharge of the trusts

hereby created.

THE Trustees shall not nor shall any Trustee hereof be required to give a bond or

 

Leave a Reply