48. Accepting or declining trusteeship

(1) Except as otherwise provided in subsection 48(3) a person designated as Trustee accepts the trusteeship:

• (a) by substantially complying with a method of acceptance provided in the terms of the Trust; or
• (b) if the terms of the Trust do not provide a method or the method provided in the terms is not expressly made exclusive, by accepting delivery of the Trust Property, exercising powers or performing duties as Trustee, or otherwise indicating acceptance of the trusteeship.

(2) A person designated as Trustee who has not yet accepted the trusteeship may decline the trusteeship. A designated Trustee who does not accept the trusteeship within a reasonable amount of time after knowing of the designation is deemed to have rejected the trusteeship.

(3) A person designated as a Trustee, without accepting the trusteeship, may without liability for loss:

• (a) act to preserve the Trust Property if, within a reasonable time after acting, he sends a written rejection of the trusteeship to the person (if any) with the power to appoint a new Trustee;
• (b) inspect or investigate Trust Property to determine potential liability under any law (including the law of any jurisdiction in which the Trust Property is located) or for any other purpose; or
• (c) apply to the Court for directions or advice.

(4) A person who knowingly does any act or thing in relation to the Trust Property consistent with the status of a Trustee of that Property shall be deemed to have accepted appointment as a Trustee, but he shall not be remunerated for acting in such capacity as provided in section 53 (Remuneration of a Trustee), unless the Trustee appointed under the terms of the Trust otherwise agrees.

49. Vacancy in trusteeship; appointment of a new Trustee

(1) A vacancy in a trusteeship occurs if:

• (a) a person designated as Trustee rejects the trusteeship;
• (b) a person designated as Trustee cannot be identified or does not exist;
• (c) a Trustee resigns;
• (d) a Trustee is removed;
• (e) a Trustee dies, becomes bankrupt, or, being a corporation, has a petition for its winding up presented or an administrator appointed;
• (f) a guardian is appointed for an individual serving as Trustee; or
• (g) a Trustee is unable freely to exercise his rights or powers or to fulfil his duties or obligations hereunder because of duress or undue influence brought to bear on such person by any other person or persons.

(2) Where the terms of a Trust contain no provision for the appointment of a new Trustee, the Trustee for the time being may appoint a new Trustee or failing that the Court may appoint a new Trustee.

(3) Subject to the terms of the Trust, a Trustee appointed under this section shall have the same powers, discretions and duties and may act as if he had been originally appointed a Trustee.

(4) A Trustee having power to appoint a new Trustee who fails to exercise such power may be removed from office by the Court and the Court may appoint a new Trustee.

(5) If one or more co-Trustees remain in office, a vacancy in a trusteeship need not be filled.

(6) A vacancy in trusteeship shall be filled if the Trust has no remaining Trustee.

(7) Where there is no Trustee a Trust shall not fail on that account.

50. Resignation of Trustee

(1) Subject to the terms of the Trust, a Trustee may resign his office:

• (a) by giving at least 30 days notice in writing to the Beneficiaries, the Settlor, if living, and all his co-Trustees. Such resignation shall take effect upon termination of such 30 day notice period or such earlier date as shall be agreed between the Trustee resigning and the Settlor, if living, and his co-Trustees;
• (b) with the approval of the Court; or
• (c) otherwise in accordance with the terms of the Trust.

(2) A resignation given in order to facilitate a Breach of Trust shall have no effect.

51. Removal of Trustee by Court or under the terms of a Trust

(1) The Settlor, an Enforcer, a co-Trustee, or a Beneficiary may request the Court to remove a Trustee, or a Trustee may be removed by the Court on its own initiative.

(2) The Court may remove a Trustee if:

• (a) the Trustee has committed a Breach of Trust;
• (b) lack of cooperation among co-Trustees substantially impairs the administration of the Trust;
• (c) because of unfitness, unwillingness, or persistent failure of the Trustee to administer the Trust, the Court determines that removal of the Trustee best serves the interests of the Beneficiaries; or
• (d) there has been a substantial change of circumstances or removal is requested by all of the Beneficiaries, the Court finds that removal of the Trustee best serves the interests of all the Beneficiaries and is not inconsistent with a material purpose of the Trust, and a suitable co- Trustee or successor Trustee is available.

(3) Pending a final decision on a request to remove a Trustee, or in lieu of or in addition to removing a Trustee, the Court may order an appropriate relief under section 69 (Remedies for Breach of Trust).

(4) This power conferred by this section is in addition to any power to remove a Trustee contained in the Trust Instrument.

52. Position of outgoing Trustee

(1) A Trustee who resigns or is removed shall proceed expeditiously to deliver the Trust Property within the Trustee’s possession to the co-Trustee, successor Trustee or other person entitled to it.

(2) Unless a co-Trustee remains in office or the Court otherwise orders, and until the Trust Property is delivered to a successor Trustee or other person entitled to it, a Trustee who has resigned or been removed has the duties of a Trustee and the powers necessary to protect the Property.

(3) A Trustee who resigns or is removed may require to be provided with reasonable security for liabilities whether existing, future, contingent or otherwise before surrendering Trust Property.

(4) A Trustee who resigns or is removed and has complied with subsection 52(1) shall be released from liability to any Beneficiary, Trustee or person interested under the Trust for any act or omission in relation to the Trust Property or the Trustee’s duty as a Trustee except liability:

• (a) arising from any Breach of Trust to which such Trustee was a party or to which the Trustee was privy; or
• (b) in respect of actions to recover from such Trustee Trust Property or the proceeds of Trust Property in the possession of such Trustee.

53. Remuneration of a Trustee

(1) Unless authorised by:

• (a) the terms of the Trust;
• (b) the consent in writing of all of the Beneficiaries; or
• (c) an order of the Court; a Trustee shall not be entitled to remuneration for his services.

(2) If the terms of a Trust specify the Trustee’s remuneration, the Trustee is entitled to be remunerated as specified, but the Court may allow more or less remuneration if:

• (a) the duties of the Trustee are substantially different from those contemplated when the Trust was created; or
• (b) the remuneration specified by the terms of the Trust would be unreasonably low or high.

(3) A Trustee may reimburse himself out of the Trust Property for or pay out of the Trust all expenses and liabilities properly incurred in connection with the administration of the Trust.

54. Advisory Trustees

(1) In the administration of any Trust Property any Trustee may act, to the extent provided in this section, with an advisory Trustee or advisory Trustees.

(2) An advisory Trustee or advisory Trustees may be appointed in respect of all or any part of the Trust Property:

• (a) by the testator, Settlor or other creator of the Trust, in the instrument creating the Trust; or
• (b) by order of the Court made on the application of any Beneficiary or Trustee or of any person on whose application the Court would have power to appoint a new Trustee; or
• (c) by any person having power to appoint a new Trustee.

(3) Where a Trustee acts with an advisory Trustee or advisory Trustees, the Trust Property shall be vested in the first mentioned Trustee (in this section referred to as the responsible Trustee), who shall have the sole management and administration of the estate and its Trusts as fully and effectually as if the responsible Trustee were the sole Trustee, and in any such case:

• (a) the responsible Trustee may consult the advisory Trustee on any matter relating to the Trusts or the estate;
• (b) the advisory Trustee may advise the responsible Trustee on any matter relating to the Trusts or the estate, but shall not be Trustee in respect of the Trust;
• (c) where any advice or direction is tendered or given by the advisory Trustee, the responsible Trustee may follow and act on that advice or direction without being liable for anything done or omitted by him by reason of his following that advice or direction unless the Trustee knew or ought to have known that the advice was unlawful, contrary to the terms of the Trust or Trustees’ duties, or advice that no reasonable advisory Trustee would have given;
• (d) where the responsible Trustee is of opinion that any advice or direction of an advisory Trustee conflicts with the Trusts or any rule of law, or exposes him to any liability, or is otherwise objectionable, he may apply to the Court for directions in the matter, and any decision and order therein shall be final and shall bind the responsible Trustee and the advisory Trustee, and the Court may make such order as to costs as appears proper; but nothing in this section makes it necessary for the responsible Trustee to apply to the Court for any such directions; and
• (e) where there are two or more advisory Trustees who are not unanimous, and tender to the responsible Trustee conflicting advice or directions, the responsible Trustee may apply to the Court for directions in like manner and with like effect as provided by subsection 54(3)(d).

(4) A person dealing with the responsible Trustee in relation to any Trust Property shall not be concerned to inquire as to the concurrence or otherwise of the advisory Trustees or be affected by notice of the fact that the advisory Trustees have not concurred.

(5) Subject to the provisions of the instrument (if any) creating the Trust and to any order made by the Court, where remuneration or commission is payable to the Trustee of any Trust Property, remuneration or commission may be paid to both the responsible Trustee and the advisory Trustee, and subject as aforesaid the amount thereof shall be as may be determined by the responsible Trustee (if he is entitled to fix his own remuneration) or by the Court.