In this Act, unless the context otherwise requires,—

For the purposes of this Act a person shall be deemed to be under a disability while he is not of full age or full mental capacity.

This Act, except where otherwise expressly provided, applies to trusts (as hereinbefore defined) constituted or created either before or after the commencement of this Act.

The powers conferred by or under this Act on a trustee who is not a corporation are in addition to the powers given by any other Act and by the instrument, if any, creating the trust; but the powers conferred on the trustee by this Act, unless otherwise stated, apply if and so far only as a contrary intention is not expressed in the instrument, if any, creating the trust, and have effect subject to the terms of that instrument.

The powers conferred by or under this Act on a trustee that is a corporation are in addition to the powers given by the instrument, if any, creating the trust and to the powers given by or under the Act or any instrument by or under which the corporation is constituted and any other Act: but the powers conferred on the trustee by this Act, unless otherwise stated,—

Without limiting the generality of subsections (4) and (5), any power or direction in any instrument creating a trust to invest trust funds in any specified property or classes of property shall not, for the purposes of those subsections, be deemed to be a contrary intention preventing the exercise by a trustee of the power of investment conferred by Part 2.

This Act does not affect the legality or validity of anything done before the commencement of this Act, except as otherwise in this Act expressly provided.

This Act shall bind the Crown.

A trustee may invest any trust funds, whether at the time in a state of investment or not, in any property.

Any such investment may be varied from time to time.

Subject to sections 13C and 13D, a trustee exercising any power of investment shall exercise the care, diligence, and skill that a prudent person of business would exercise in managing the affairs of others.

Subject to section 13D, where a trustee’s profession, employment, or business is or includes acting as a trustee or investing money on behalf of others, the trustee, in exercising any power of investment, shall exercise the care, diligence, and skill that a prudent person engaged in that profession, employment, or business would exercise in managing the affairs of others.

The duty imposed on a trustee by section 13B or section 13C shall apply to a trustee if and so far only as a contrary intention is not expressed in the instrument, if any, creating the trust or any Act, and shall have effect subject to the terms of that instrument or Act.

Any rules and principles of law relating to any provision in an instrument that purports to exempt or limit the liability of a trustee in respect of any breach of trust, or to indemnify a trustee in respect of any breach of trust, shall remain in force and apply in respect of any provision in a trust instrument that expresses a contrary intention for the purposes of subsection (1).

Without limiting the matters that a trustee may take into account, a trustee exercising any power of investment may have regard to the following matters so far as they are appropriate to the circumstances of the trust:

All rules and principles of law which impose any duty on a trustee exercising a power of investment, including, without limiting the generality of the foregoing, all rules and principles which impose—

shall remain in force and apply in respect of any exercise of any power of investment, except so far as they are altered by or are inconsistent with this Act or any other enactment or the instrument, if any, creating the trust.

A trustee exercising any power of investment shall comply with any requirements of the instrument, if any, creating the trust or of statute that are binding on the trustee and that relate to the obtaining of any consent or compliance with any direction with respect to the investment of trust funds.

A trustee shall not be liable for breach of trust by reason only of continuing to hold an investment which has ceased to be—

Unless expressly prohibited by the instrument creating the trust, a trustee shall not be liable for breach of trust by reason only of retaining or investing in securities that are payable to bearer.

Any direction in an instrument creating a trust that investments shall be retained or made in the name of a trustee shall not, for the purposes of subsection (1), be deemed to be an express prohibition.

In any case where a trustee (not being a trustee corporation) retains or invests in securities payable to bearer, that trustee shall, until those securities are sold, deposit them for safe custody and collection of income with a bank.

A trustee shall not be responsible for any loss incurred by reason of any such deposit, and any sum payable in respect of any such deposit and collection shall be paid out of the income of the trust property.

A trustee shall not be liable for breach of trust by reason only of investing in securities that are redeemable and paying a price that is greater or less than the redemption value.

A trustee may retain until redemption any redeemable security that may have been purchased in accordance with the powers conferred by this Act.

In any case where a redeemable security is purchased by a trustee at a price greater or less than its redemption value, and in terms of the trust the beneficial interest in the income from the security is not vested in the same persons as the beneficial interest in the capital of the security, then, subject to the provisions of section 83,—

Where the amount to be recouped to or deducted from capital in any year in accordance with paragraph (a) or paragraph (b) of subsection (3) is less than $50, it shall not be necessary for the trustee to comply with the provisions of that subsection.

Where any securities of a company are subject to a trust, the trustee may concur in any scheme or arrangement—

in like manner as if the trustee were entitled to the securities beneficially, with power to accept any securities of any denomination or description of the reconstructed company or purchasing company or new company instead of or in exchange for all or any of the first-mentioned securities.

If any conditional or preferential right to subscribe for any securities in any company is offered to a trustee in respect of any holding in that company or any other company, the trustee may, as to all or any of the securities, either—

A trustee accepting or subscribing for securities pursuant to this section is, for the purposes of any provision of this Part, exercising a power of investment.

A trustee may retain any securities accepted or subscribed for pursuant to this section for any period for which the trustee could properly have retained the original securities.

The consideration for any assignment made under subsection (2)(b) shall be held as capital money of the trust.

A trustee may apply capital money subject to a trust in payment of the calls on any shares subject to the same trust.

In considering whether a trustee is liable, in respect of any investment made by that trustee, for any breach of trust in respect of any duty—

the court may, if it thinks it appropriate, take into account—

A trustee lending money on the security of any property on which the trustee can properly lend shall not be chargeable with breach of trust by reason only of the proportion borne by the amount of the loan to the value of the property at the time when the loan was made, if it appears to the court—

A trustee lending money on the security of any leasehold property shall not be chargeable with breach of trust only upon the ground that in making the loan the trustee dispensed either wholly or partly with the production or investigation of the lessor’s title.

Where—

the security shall be deemed to be an investment that could properly be made in respect of the smaller sum, and the trustee shall be liable to make good only the sum advanced in excess of the smaller sum, with interest.

Where any trust funds are invested and secured on any property, the trustee may release any part of the property from the security, whether part of the debt is repaid or not, if the unreleased part of the property would at the time be a proper security in all respects for the amount remaining unpaid.

Where trust funds are invested and secured on any land under the Land Transfer Act 1952, a subsequent purchaser of the released part of the property, or the District Land Registrar, shall not be concerned to inquire whether the requirements of subsection (1) were fulfilled.

In considering any action for breach of trust arising in respect of or in relation to any investment by a trustee as a result of which any loss or losses have been, or are expected to be, sustained by the trust, the court may set off, as it thinks just, all or any part of the loss or losses resulting from that investment against all or any part of the gain or gains resulting from any other investment, whether in breach of trust or not.

The power of set off conferred by subsection (1) shall be without prejudice to any other power or entitlement to set off all or any part of any loss or losses against any property.

Subject to the provisions of this section, every trustee may exercise the following powers in respect of any property for the time being vested in him:

Any trustee may purchase land in New Zealand in any of the following cases:

Any trustee may erect a dwellinghouse on land that is subject to the same trusts as the money being expended in respect of the erection, or may purchase land in New Zealand and erect a dwellinghouse thereon, if the dwellinghouse and land are required exclusively or principally as a home for the person entitled to the income of the money being expended in respect of the erection or the purchase and erection, as the case may be.

In any case where a trustee is authorised by or under this Act or any other enactment, or by the instrument creating the trust, to provide or acquire a home for any person, he shall have power, in addition to any authority so conferred,—

Any trustee may accept or concur or join with any other person in accepting a lease or sublease of any property on such terms and subject to such covenants and conditions as he thinks fit; and may surrender or concur or join with any other person in surrendering any lease or sublease; and, if lessor or sublessor, may accept or concur or join with any other person in the acceptance of the surrender of any lease or sublease.

Any trustee may, on such conditions as he thinks proper, rescind or cancel or modify or vary any contract or agreement for the sale and purchase of any land, or agree to do so, or compromise with or make allowances to any person with whom such contract or agreement has been made, or who is the assignee thereof in respect of any unpaid purchase money secured on mortgage or otherwise.

In exercising any power of leasing or subleasing conferred by this section or by the instrument (if any) creating the trust, a trustee may—

A trustee who, in accordance with any power conferred on him by or under this Act or otherwise, sells any land, or exchanges any land for any other land, or grants a lease of any land with an optional or compulsory purchasing clause, shall not be guilty of a breach of trust by reason only of any alleged inadequacy of the amount or value of the sale price or other consideration (exclusive of rent) that he received in respect of the transaction, if, before making the sale or exchange or granting the lease, he has ascertained the value of the land involved in accordance with section 28, and—

Where a person dies intestate as to any personal chattels within the meaning of the Administration Act 1969 and leaves a husband or wife, or civil union partner, or a surviving de facto partner (as defined in section 2(1) of that Act) entitled to succeed on the intestacy, the trustee of the intestate’s estate must not, without the consent of the court or of the husband or wife, civil union partner, or surviving de facto partner, sell those chattels, unless a sale is required for purposes of administration owing to want of other assets.

If there is more than 1 person whose consent would be required under subsection (6A), the consent of each of them is required.

If, under a marriage settlement of land, there is a tenant for life in possession, a trustee may exercise a power conferred by subsection (1)(a) or (b) only at the request in writing of the tenant for life.

Where upon inquiry the court is satisfied that a partition of the real estate of a deceased person would be advantageous to the parties interested therein, the court may order a partition or may appoint 1 or more arbitrators to effect a partition, and to exercise in regard thereto, under its directions and control, such powers as it thinks fit; and if the report and final award of the arbitrator are approved by the court, the trustee shall, by conveyance or transfer, give effect to the same accordingly.

Where there is a power (statutory or otherwise) to postpone the sale of any land or investment that a trustee has a duty to sell by reason only of a trust or direction for sale, then (subject to any express direction to the contrary in the instrument, if any, creating the trust) the trustee shall not be liable in any way merely for postponing the sale, in the exercise of his discretion, for an indefinite and unlimited period, whether or not that period exceeds the period during which the trust or direction for sale remains valid; nor shall a purchaser of the land or investment be concerned in any case with any directions respecting the postponement of a sale:

Every trustee may exercise the following powers in respect of any property for the time being vested in him:

Where in the administration of any property employed in the production of income or from which income is derived a trustee considers that in the interests of the persons entitled or who may become entitled to the capital of the property it is equitable to set up a depreciation or replacement fund in respect of the property or in respect of any asset comprised therein, then, notwithstanding any rule of law to the contrary, it shall be lawful for but not obligatory upon him to do so, and to credit from time to time to the fund and accumulate by way of compound interest such part of the income so produced or derived as he considers equitable and also the resulting income therefrom. In any such case the fund shall follow the destination of the capital of the property and shall be subject to all the trusts, powers, and provisions applicable thereto; with further power to the trustee to apply as he thinks fit the fund and accumulations of income in or towards the replacement, repair, maintenance, upkeep, or renovation of the property or asset, or in or towards the acquisition by purchase or otherwise of property or assets of a like nature or which otherwise may advantageously be employed in conjunction with the property in producing or deriving the income as aforesaid.

Where a trust for sale or a power of sale of property is vested in a trustee, he may sell or concur with any other person in selling all or any part of the property, either subject to prior encumbrances or not, and either together or in lots, by public auction or by public tender or by private contract, subject to any such conditions respecting title or evidence of title or other matters as the trustee thinks fit, with power to vary any contract for sale, and to buy in at any auction, or to rescind any contract for sale and to resell, without being answerable for any loss.

A trust or power to sell or dispose of land includes a trust or power to sell or dispose of part thereof, whether the division is horizontal, vertical, or made in any other way; and also includes a trust or power to sell or dispose of any buildings, fixtures, timber, or other things affixed to the soil apart and separately from the land itself.

In exercise of any power of sale in respect of several properties held under 1 lease, the trustee may sell the properties separately on the terms that one of the purchasers shall take an assignment of the lease and grant subleases to the other purchasers, and that if any part of the property is not sold the trustee shall retain the lease and grant subleases of the portions sold.

Where a trustee may sell any property at a fixed or specified time pursuant to any trust or power vested in him, the trustee may, with the consent of the persons (if any) entitled to the possession thereof pending the sale of the property, sell the property at any time before the date originally appointed.

A sale of property by a trustee in exercise of any power vested in him in that behalf by the instrument creating the trust or by or under this Act or any other enactment may be on terms of deferred payment or otherwise.

The terms of deferred payment shall be such as a person acting with prudence would, if the property were his own, have accepted in the circumstances in order to sell the property to the best advantage, and, subject thereto, may provide for the payment of the purchase money or any part thereof under an agreement for sale or for the conveyance of the property sold and the securing of the unpaid purchase money by mortgage of the property sold.

Whether the sale is made under the order of the court or otherwise, the court may make such order as it thinks fit as to the terms of deferred payment.

A trustee selling property on terms authorised by this section or by any order of the court—

No sale made by a trustee shall be impeached by any beneficiary upon the ground that any of the conditions subject to which the sale was made may have been unnecessarily depreciatory, unless it also appears that the consideration for the sale was thereby rendered inadequate.

No sale made by a trustee shall, after the execution of the conveyance or transfer, 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.

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.

This section applies to sales made before or after the commencement of this Act.

The receipt in writing of a trustee for any money, securities, or other personal property or effects payable, transferable, or deliverable to him under any trust or power shall be a sufficient discharge to the person paying, transferring, or delivering the same, and shall effectually exonerate that person from seeing to the application or being answerable for any loss or misapplication thereof.

This section applies notwithstanding anything to the contrary in the instrument, if any, creating the trust.

A trustee may, if and as he thinks fit,—

and for any of those purposes may enter into, give, execute, and do such agreements, instruments of composition or arrangement, releases, and other things as to him seem expedient, without being responsible for any loss occasioned by any act or things so done by him in good faith.

Where a trustee is authorised by the instrument, if any, creating the trust or by this Act or any other Act or by law to pay or apply capital money subject to the trust for any purpose or in any manner, he shall have and shall be deemed always to have had power to raise the money required by sale, conversion, calling in, or mortgage of all or any part of the trust property for the time being in possession.

Without restricting the generality of the foregoing provisions of this section, the power conferred on the trustee by this section to raise any money that is required as aforesaid by the sale, conversion, calling in, or mortgage of all or any part of the trust property for the time being in possession shall extend and be deemed always to have extended so as to confer on the trustee power so to raise money required for the purpose of meeting any debt or other liability of the trustee, whether secured or unsecured and whether owing or incurred at or before the commencement of the trust or subsequently.

Where an instrument is made or executed in professed exercise of the power to sell, exchange, lease, or mortgage conferred by the instrument (if any) creating the trust or by this Act or any other Act, the title of the purchaser, transferee, lessee, or mortgagee shall not be impeachable except on the ground of fraud, or be affected on the ground that no case has arisen to authorise the sale, exchange, lease, or mortgage, or that the power was otherwise improperly or irregularly exercised; but any person damnified by an unauthorised or improper or irregular exercise of the power shall have his remedy in damages against the person exercising the power, and no purchaser, transferee, lessee, or mortgagee shall be concerned to see to the application of the money paid by him, or be responsible for the misapplication thereof.

Nothing in this section shall restrict the provisions of the Land Transfer Act 1952.

Where a power or trust is given to or imposed on 2 or more trustees jointly, the same may be exercised or performed by the survivors or survivor of them for the time being.

Until the appointment of a new trustee, the personal representative for the time being of a sole trustee or (where there were 2 or more trustees) of the last surviving or continuing trustee shall be capable of exercising or performing any power or trust which was given to, or capable of being exercised by, the sole or last surviving or continuing trustee, or other the trustees for the time being of the trust:

This section does not authorise the exercise or performance of any power or trust by an executor who has renounced or has not proved.

A trustee may insure against loss or damage, whether by fire or earthquake or otherwise, any building or other insurable property to any amount, including the amount of any insurance already on foot, not exceeding the full insurable value of the building or property, or (with the consent of the person entitled to the income or of the court) the full replacement value of the building or property; and may also insure against any risk or liability against which it would be prudent for a person to insure if he were acting for himself; and may pay the premiums for the insurance out of the income of the building or property concerned or out of the income of any other property subject to the same trusts without obtaining the consent of any person who may be entitled wholly or partly to that income.

The trustee may recover the costs of any premiums paid in respect of any such insurance from the life tenant or other person entitled to or in receipt of the rents and profits of the building or property concerned.

Nothing in this section shall impose any obligation on a trustee to insure.

Money receivable by a trustee or any beneficiary under a policy of insurance against the loss of or damage to any property subject to a trust, whether by fire or otherwise, shall, where the policy has been kept up under any trust in that behalf or under any power, statutory or otherwise, or in performance of any covenant or of any obligation, statutory or otherwise, or by a tenant for life impeachable for waste, be capital for the purposes of the trust, except so far as it would be regarded as income under any rule of law.

If any such money is receivable by any person other than the trustee 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 trustee of the trust, or, if there is no trustee capable of giving a discharge therefor, to the Crown under section 77.

Any such money,—

Any such money, or any part thereof, may also be applied by the trustee, or, if held by the Crown, under the direction of the court, in rebuilding, reinstating, replacing, or repairing the property lost or damaged, but any such application by the trustee shall be subject to the consent of any person whose consent is required by the instrument, if any, creating the trust to the investment of money subject to the trust.

Nothing in this section shall prejudice or affect the right of any person to require any such money or any part thereof to be applied in rebuilding, reinstating, or repairing the property lost or damaged, or the rights of any mortgagee, lessor, or lessee, whether under any statute or otherwise.

This section applies to policies effected either before or after the commencement of this Act, but only to money received after the commencement thereof.

Subject to the provisions of section 13I, a trustee may deposit any documents held by him relating to the trust, or to the trust property, with any bank or corporation whose business includes the undertaking of the safe custody of documents, and any sum payable in respect of any such deposit shall be paid out of the income of the trust property, and so far as there is no available income out of the capital of the trust property.

Where trust property includes any share or interest in property not vested in the trustee, or the proceeds of the sale of any such property, or any other thing in action, the trustee, on the same falling into possession or becoming payable or transferable, may—

without being responsible in any such case for any loss occasioned by any act or thing so done by him in good faith.

The trustee shall not be under any obligation and shall not be chargeable with any breach of trust by reason of any omission—

unless and until required in writing so to do by some person, or the guardian of some person, beneficially interested under the trust, and unless also due provision is made to his satisfaction for payment of the costs of any proceedings required to be taken:

A trustee may, for the purpose of giving effect to the trust, or any of the provisions of the instrument, if any, creating the trust or of this Act or any other Act, from time to time ascertain and fix the value of any trust property, or of any property which he is authorised to purchase or otherwise acquire, in such manner as he thinks proper; and where the trustee is not personally qualified to ascertain the value of any property he shall consult a duly qualified person (whether employed by him or not) as to that value; but the trustee shall not be bound to accept any valuation made by any person whom the trustee may consult. Any valuation made by the trustee in good faith under this section shall be binding on all persons beneficially interested under the trust.

A trustee may, instead of acting personally, employ and pay an agent, whether a solicitor, accountant, bank, trustee corporation, stockbroker, or other person, to transact any business or do any act required to be transacted or done in the execution of the trust or the administration of the trust property, including the receipt and payment of money, and the keeping and audit of trust accounts, and shall be entitled to be allowed and paid all charges and expenses so incurred, and shall not be responsible for the default of any such agent if employed in good faith.

A trustee may appoint any person to act as his 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, real or personal, movable or immovable, subject to the trust in any place outside New Zealand, or executing or exercising any discretion or trust or power vested in him in relation to any such property, with such ancillary powers and with and subject to such provisions and restrictions as he may think fit, including a power to appoint substitutes, and shall not, by reason only of his having made any such appointment, be responsible for any loss arising thereby.

Without restricting the other powers conferred by this section, a trustee may—

Without prejudice to such general power of appointing agents as aforesaid—

provided that nothing in this subsection shall exempt a trustee from any liability which he would have incurred if this Act and any enactment replaced by this Act had not been passed, in case he permits any such money, valuable consideration, or property to remain in the hands or under the control of the bank or solicitor for a period longer than is reasonably necessary to enable the bank or solicitor, as the case may be, to pay or transfer the same to the trustee.

Subsection (3) shall apply whether the money or valuable consideration or property was or is received before or after the commencement of this Act.

Where an undivided share in any property is subject to a trust, the trustee may (without prejudice to any trust or power in relation to the entirety of the property) execute or exercise any trust or power vested in him in relation to that share in conjunction with the persons entitled to or having power in that behalf over the other share or shares, and notwithstanding that the trustee or any 1 or more of several trustees may be entitled to or interested in any such other share, either in his or their own right or in a fiduciary capacity.

A trustee who—

may, notwithstanding any rule of law or equity to the contrary, by power of attorney executed as a deed, delegate to any person the execution or exercise, during any period for which the trustee may be absent from New Zealand or incapable of performing all his duties as a trustee, of all or any trusts, powers, authorities, and discretions vested in him as such trustee, whether alone or jointly with any other person or persons:

Where any such delegation has been duly made to and accepted by any person and is for the time being in operation, that person shall have, within the scope of the delegation, the same trusts, powers, authorities, discretions, liabilities, and responsibilities as he would have if he were then the trustee.

In any proceedings brought by any person beneficially interested under the trust against the donor of a power of attorney given under this section in respect of any act or default of the donee of the power it shall be a defence for the donor to prove that the donee was appointed by him in good faith and without negligence.

All jurisdiction and powers of any court shall apply to the donee of the power of attorney in the same manner, so far as respects the execution of the trust or the administration of the estate to which the power of attorney relates, as if the donee were acting in relation to the trust or estate in the same capacity as the donor of the power.

The power of attorney shall not come into operation unless and until the donor is out of New Zealand or is incapable of performing all his duties as a trustee, and unless the deed otherwise provides shall be deemed to be revoked by his return or by his recovery of that capacity, as the case may be.

In favour of any person dealing with the donee of a power of attorney given under this section, any act done or instrument executed by the donee shall, notwithstanding that the power has never come into operation or has been revoked, whether by the act of the donor of the power or by operation of law, be as valid and effectual as if the power had come into operation and remained unrevoked at the time when the act was done or the instrument executed, unless that person had at that time actual notice that the power had never come into operation or of the revocation of the power.

Where the donee of any power of attorney relating to any trust or estate is not a corporation aggregate, a certificate in form 1 of Schedule 4, or to the like effect, shall, if given by the donee of the power of attorney, be taken to be conclusive evidence that the power of attorney has come into operation and that in any particular transaction the donee is acting in the execution of the trust or the administration of the estate.

Where the donee of any power of attorney relating to any trust or estate is a corporation aggregate, a certificate in form 2 of Schedule 4, or to the like effect, if given by a director, manager, secretary, or other officer duly authorised in that behalf by the corporation, shall be taken to be conclusive evidence that the power of attorney has come into operation and that in any particular transaction the donee is acting in the execution of the trust or the administration of the estate.

Where any such certificate relates to the execution of any instrument, it shall be sufficient if the certificate is endorsed on the instrument and signed by the donee of the power or by any of the persons specified in subsection (7A), as the case may be.

Every person commits an offence and is liable on conviction to a fine not exceeding $100 who wilfully or negligently signs any certificate for the purposes of subsection (7) or subsection (7A) if the certificate is false in any material respect.

The fact that it appears from any power of attorney given under this section, or from any evidence required for the purposes of any power of attorney or otherwise, that in any transaction the donee of the power is acting in the execution of a trust shall not be deemed for any purpose to affect any person dealing in good faith with the donee with any notice of the trust.

For the purpose of executing or exercising the trusts, powers, authorities, and discretions delegated to him the donee may exercise any of the powers, authorities, and discretions conferred on the donor as trustee by statute or by the instrument creating the trust, except the power of delegation conferred by this section.

Subject to the provisions of any other Act, if at the time of his death any person (whether alone or in partnership) is engaged in carrying on a business, trade, or occupation, it shall be lawful for his trustee to continue to carry on the same in the same manner for any 1 or more of the following periods:

In exercise of the powers conferred by this section or by the instrument creating the trust, a trustee may employ any part of the deceased’s estate which is subject to the same trusts; and may from time to time increase or diminish the part of the estate so employed; and may purchase stock, machinery, implements, and chattels for the purposes of the business; and may employ such managers, agents, servants, clerks, workmen, and others as he thinks fit; and may at any time enter into a partnership agreement to take the place of any partnership agreement subsisting immediately before the death of the deceased or at any time thereafter.

Application to the court for leave to carry on a business may be made by the trustee or any person beneficially interested in the estate at any time, whether or not any previous authority to carry on the business has expired; and the court may make such an order, or may order that the business be not carried on, or be carried on subject to conditions, or may make such other order as in the circumstances seems proper.

Nothing in this section shall prejudice any other authority to do the acts thereby authorised to be done.

Where a trustee is in any manner interested or concerned in a trade or business, he may make such subscription as it would be prudent for him to make if he were acting for himself out of the income of the assets affected to any fund created for objects or purposes in support of trades or businesses of a like nature and subscribed to by other persons engaged in the like trade or business.

Unless expressly forbidden by the instrument, if any, creating the trust, a trustee who is empowered to carry on any business forming part of the assets of the trust property may, so long as the trustee continues lawfully to carry on that business,—

if membership of the company or enterprise is essential or highly advantageous to the carrying on of that business or the marketing of the products of that business.

A trustee exercising the powers conferred by subsection (1) is not, for the purposes of any provision of Part 2, exercising a power of investment.

A trustee may at any time, at the expense of the trust property, convert or join in converting any business into a company limited by shares in such manner as he may think fit; and may, at the like expense, promote and assist in promoting a company for taking over the business; and may sell or transfer the business and the capital and assets and goodwill thereof, or any part thereof, to the company, or to any company having for its objects the purchase of such a business, in consideration, in either case, wholly or in part of ordinary or preference shares wholly or partially paid up of any such company, or wholly or in part of debentures, debenture stock, or bonds of any such company, and as to the balance (if any) in cash payable immediately, or by any instalments with or without security.

Notwithstanding any rule of law or practice to the contrary, a trustee of any property in that capacity may sue, and be sued by, himself in any other capacity whatsoever, including his personal capacity:

Where a trustee liable as such for—

satisfies all liabilities under the lease or grant which may have accrued and been claimed up to the date of the conveyance hereinafter mentioned, and, where necessary, sets apart a sufficient fund to answer any future claim that may be made in respect of any fixed and ascertained sum which the lessee or grantee agreed to lay out on the property demised or granted, although the period for laying out the same may not have arrived, then and in any such case the trustee may convey the property demised or granted to a purchaser, legatee, devisee, or other person entitled to call for a conveyance thereof, and thereafter—

For the purposes of this section a trustee shall be deemed to be liable as such for any liabilities arising from privity of estate which he may incur under the obligations contained in a lease or grant if he is entitled to reimburse himself out of the trust property for all expenses he may incur in respect of the liabilities.

This section operates without prejudice to the right of the lessor or grantor, or the persons deriving title under the lessor or grantor, to follow the trust property or any part thereof or any property representing the same into the hands of the persons amongst whom the same may have been respectively distributed, and applies notwithstanding anything to the contrary in the instrument, if any, creating the trust.

In this section lease includes a sublease and an agreement for a lease or sublease and any instrument giving any such indemnity as aforesaid or varying the liabilities under the lease; 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; and lessee and grantee include persons respectively deriving title under them.

Where a trustee pays any premiums in respect of any policy of insurance he shall have a lien on the policy money for the amount of the premiums so paid, together with interest thereon at the rate of 6% or such other rate as the Governor-General may for the time being by Order in Council prescribe.

Where a trustee has given notice by advertisement published at least once in a newspaper circulating in each locality in which in the opinion of the trustee claims are likely to arise requiring persons having claims to which this section applies to send to the trustee, within the time fixed in the notice, particulars of their claims and warning them of the consequences of their failure to do so, then, at the expiration of that time or at any time thereafter the trustee may administer 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 trustee then has notice; and he shall not, as respects the property so administered or distributed, be liable to any person of whose claim he has not had notice at the time of the administration or distribution:

The time to be fixed as aforesaid by any such notice shall not be less than 1 month from the date on which the notice is given:

In any case where the personal representative of a deceased person gives any such notice, the localities specified in subsection (1) shall include each locality in which the deceased resided or carried on business at any time during the year immediately preceding his death.

Where the trustee is in doubt as to what advertisements should be published under this section he may apply to the court for directions.

Any advertisement published under this section may relate to more than 1 estate or trust property.

This section shall apply notwithstanding anything to the contrary in the instrument, if any, creating the trust.

Except as provided in subsection (8), this section shall apply to the following claims, whether present or future, certain or contingent, against a trustee:

This section shall not apply to—

A trustee acting for the purposes of more than 1 trust shall not, in the absence of fraud, be affected by notice of any instrument, matter, fact, or thing in relation to any particular trust if he has obtained notice thereof merely by reason of his acting or having acted for the purposes of another trust.

A trustee acting or paying money in good faith in reliance on any power of attorney and on a statutory declaration or other sufficient evidence that the power of attorney has not been revoked shall not be liable for any such act or payment by reason of the fact that at the time of the act or payment the person who gave the power of attorney was subject to any disability, or bankrupt, or dead, or had done or suffered some act or thing to avoid the power, if this fact was not known to the trustee at the time of his so acting or paying:

A trustee shall be chargeable only for money and securities actually received by him, notwithstanding his signing any receipt for the sake of conformity, and shall be answerable and accountable only for his own acts, receipts, neglects, or defaults, and not for those of any other trustee, nor for any bank, broker, or other person with whom any trust money or securities may be deposited, nor for the insufficiency or deficiency of any securities, nor for any other loss, unless the same happens through his own wilful default.

A trustee may reimburse himself or pay or discharge out of the trust property all expenses reasonably incurred in or about the execution of the trusts or powers; but, except as provided in this Act or any other Act or as agreed by the persons beneficially interested under the trust, no trustee shall be allowed the costs of any professional services performed by him in the execution of the trusts or powers unless the contrary is expressly declared by the instrument creating the trust:

If a trustee in good faith, without negligence, and without actual knowledge of the bankruptcy of any person, pays or transfers to or to the order of that person any trust money or trust property which he would have been entitled to receive (whether as a beneficiary or otherwise) if he had not been adjudged bankrupt, the trustee shall not be liable to the assignee in bankruptcy of the estate of the bankrupt for any money so paid or any property so transferred:

For the purposes of this section a trustee shall not be deemed to have actual knowledge of the bankruptcy of any person by reason merely of the fact that notice of the adjudication has been published in any newspaper or in the Gazette.

This section applies with respect to payments of money or transfers of property made by a trustee before or after the commencement of this Act.

Where any chattels are, under the provisions of any will, bequeathed to any person including an infant for life or for any limited interest, the trustee may cause an inventory to be made of the chattels, which inventory shall be signed by that person and retained by the trustee, and a copy of the inventory shall be delivered to that person.

The trustee may thereupon deliver the chattels to that person on such terms and conditions as the trustee thinks fit, and shall not thereafter be bound to see to the repair or insurance of the chattels, and shall not be subject to any liability whatsoever by reason of the loss or destruction of the chattels or the neglect of that person to effect any such repairs or insurance.

A copy of any such inventory, signed by that person and by the trustee, is deemed to be a security interest within the meaning of the Personal Property Securities Act 1999, and a financing statement may be registered accordingly.

A trustee may in his discretion deliver to an infant, or to the guardian or any of the guardians of an infant, any chattels absolutely vested in the infant, and the receipt of the infant or guardian shall be a complete discharge to the trustee for any chattels so delivered.

The powers conferred by this section are in addition to the powers conferred by section 41 and, for the purposes of paragraph (a) of the proviso to that section, the value of the chattels delivered pursuant to this section shall not be taken into account in any way.

Where any property is held by a trustee in trust for any person for any interest whatsoever, whether vested or contingent, then, subject to any prior interests or charges affecting that property,—

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 trustee shall have regard to the age of the infant and his requirements and generally to the circumstances of the case, and in particular to what other income, if any, is applicable for the same purposes; and where the trustee has notice that the income of more than 1 fund is applicable for those purposes, then, so far as practicable, unless the entire income of the funds is paid or applied as aforesaid or the court otherwise directs, a proportionate part only of the income of each fund shall be so paid or applied.

During the infancy of any such person, if his interest so long continues, the trustee 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 accordance with the trust instrument or the provisions of this Act as to the investment of trust funds, and shall hold those accumulations as follows:

but the trustee may, at any time during the infancy of that person if his interest so long continues, apply those accumulations, or any part thereof, as if they were income arising in the then current year.

This section applies in the case of a contingent interest only if the limitation or trust carries the intermediate income of the property, but it applies to a future or contingent legacy by the parent of, or a person standing in the place of a parent to, the legatee, if and for such period as, under the general law, the legacy carries interest for the maintenance of the legatee, and in any such case as last aforesaid the rate of interest shall (if the income available is sufficient and subject to any rules of court to the contrary) be that for the time being prescribed by or under section 39 of the Administration Act 1969.

This section applies to a vested annuity in like manner as if the annuity were the income of property held by a trustee 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 infancy of the annuitant shall be held in trust for the annuitant or his personal representatives absolutely.

A trustee may at any time or times pay or apply any capital money or other capital asset subject to a trust, for the maintenance or education (including past maintenance or education), or the advancement or benefit, in such manner as he may in his absolute discretion think fit, of any person entitled to the capital of the trust property or of any share thereof, whether absolutely or contingently on his attaining any specified age or on the occurrence of any other event, or subject to a gift over on his death under any specified age or on the occurrence of any other event, and whether in possession or in remainder or reversion, and any such payment or application may be made notwithstanding that the interest of that 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:

Where a power to pay or apply any property for the maintenance, education, advancement, or benefit of any person, or for any 1 or more of those purposes, is vested in a trustee, the trustee when exercising the power shall have, and be deemed always to have had, authority to impose on the person any condition, whether as to repayment, payment of interest, giving security, or otherwise. At any time after imposing any such condition, the trustee may, either wholly or in part, waive the condition or release any obligation undertaken or any security given by reason of the condition.

In determining the amount or value of the property which a trustee who has imposed such a condition may pay or apply in exercise of the power, any money repaid to the trustee or recovered by him shall be deemed not to have been so paid or applied by the trustee.

Nothing in this section shall impose upon a trustee any obligation to impose any such condition; and a trustee, when imposing any condition as to giving security as aforesaid, shall not be affected by any restrictions upon the investment of trust funds, whether imposed by this Act or by any rule of law or by the trust instrument (if any).

A trustee shall not be liable for any loss which may be incurred in respect of any money that is paid or applied as aforesaid, whether the loss arises through failure to take security, or through the security being insufficient, or through failure to take action for its protection, or through the release or abandonment of the security without payment, or from any other cause.

Where any income, including an annuity or other periodical income payment, is directed to be held on protective trusts for the benefit of any person (in this section called the principal beneficiary) 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 trusts, namely:

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.

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.

Where any property settled by way of succession is employed in a business that the trustee is empowered or authorised to carry on, and the trustee considers that in the interests of the persons entitled to the income or capital of the property, and in accordance with good business practice, it is expedient to set aside and retain as a capital reserve part of the income or profits arising therefrom in any period, then, notwithstanding any rule of law to the contrary, and without in any way affecting any other power conferred on him by this Act or any other enactment (including, without limiting the generality of the foregoing, the power to set up a depreciation or replacement fund under section 15(2)), or by the instrument creating the trust, it shall be lawful for but not obligatory upon the trustee to direct that such part of the income or profits arising from the property in that period as he determines shall cease to be income and shall become a capital reserve of the business.

Any income or profits reserved by the trustee under this section may be applied by him in his discretion either immediately or at any time or times thereafter in, for, or towards all or any of the following purposes:

All income or profits reserved by the trustee under this section shall, subject to the provisions of this section, follow the destination of the capital of the property and shall be subject to all the trusts, powers, and provisions applicable thereto.

Where any property settled by way of succession is employed in a business that the trustee is empowered or authorised to carry on, and the trustee considers in any period that the income arising from the business and available for distribution to the person entitled to receive it (in this section referred to as the income beneficiary) is insufficient for the proper maintenance of the income beneficiary, having regard to any other income received or to be received during that period by the income beneficiary from whatever source and to all the other circumstances of the case, then, notwithstanding any rule of law to the contrary, and without in any way affecting any other power conferred on him by this Act or any other enactment (including, without limiting the generality of the foregoing, the power to make advances out of income and capital under sections 40 and 41) or by the instrument creating the trust, it shall be lawful for but not obligatory upon the trustee to pay or apply any capital money or other capital asset subject to the trust and employed in the business (including any money for the time being standing to the credit of any fund established by the trustee under section 15(2) or section 42A) for the maintenance or benefit, in such manner as he may in his absolute discretion think fit, of the income beneficiary.

If, in any such case, the trustee pays or applies any capital money or capital asset for the maintenance or benefit of the income beneficiary in accordance with subsection (1), and, in any subsequent period, the trustee considers that the income available from the business for distribution to the income beneficiary is more than sufficient for the proper maintenance of the income beneficiary, having regard to any other income received or to be received during that subsequent period by the income beneficiary from whatever source and to all the other circumstances of the case, then the trustee may recoup the whole or such part as he thinks fit of the sum so paid (or of a sum equivalent to the value of the capital asset so applied) from the income arising from the business during that period and available for distribution to the income beneficiary.

In considering whether or not to exercise, or in what manner he should exercise, any power conferred on him by section 42A or section 42B, the trustee shall have regard to the desirability of ensuring both—

Where any property settled by way of succession is employed in a business that the trustee is empowered or authorised to carry on, and the trustee considers that, in order better to determine the net income of the business that is available in any period for appropriation and distribution to the person or persons entitled under the trust to the income therefrom, it is expedient to do so, he may—

Where any property is employed in an activity that the trustee is empowered or authorised to carry on as a portfolio investment entity, the trustee may adjust the interests of the beneficiaries in the property in the way required by section HL 7 of the Income Tax Act 2007 despite any other provision in this Act, in the Financial Markets Conduct Act 2013, or in any instrument creating the trust under which the property is held.

Where a trustee (whether original or substituted, and whether appointed by the court or otherwise)—

the person nominated for the purpose of appointing new trustees by the instrument (if any) creating the trust, or if there is no such person or no such person able and willing to act, then the surviving or continuing trustees for the time being, or the personal representatives of the last surviving or continuing trustee, may by deed appoint a person or persons (whether or not being the person or persons exercising the power) to be a trustee or trustees in the place of the first-mentioned trustee.

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

Where a trustee has been removed under a power contained in the instrument creating the trust, a new trustee or new trustees may be appointed in the place of the trustee who is removed, as if he were dead, or, in the case of a corporation, as if the corporation had been dissolved, and the provisions of this section shall apply accordingly.

The power of appointment given by subsection (1) or any similar previous enactment 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 that surviving or continuing trustee who have proved the will of their testator or by the administrators for the time being of that trustee without the concurrence of any executor who has renounced or has not proved:

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 3 trustees either original or substituted and whether appointed by the court or otherwise, then and in any such case—

may, by writing, appoint a person or persons (whether or not being the person or 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 instrument, if any, creating the trust, or any statutory enactment provides to the contrary:

Every new trustee appointed under this section as well before as after all the trust property becomes by law, or by assurance, or otherwise, vested in him, shall have the same powers, authorities, and discretions, and may in all respects act as if he had been originally appointed a trustee by the instrument, if any, creating the trust.

The provisions of this section relative to a trustee who is dead include the case of a person nominated trustee whether sole or otherwise in a will, and who dies 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.

The provisions of this section relative to a person nominated for the purpose of appointing new trustees apply whether the appointment is made in a case specified in this section or in a case specified in the instrument, if any, creating the trust, but where a new trustee is appointed under this section in a case specified in that instrument, the appointment shall be subject to the terms applicable to an appointment in that case under the provisions of that instrument.

In this section the term trustee does not include a personal representative as such.

A statement contained in any instrument coming into operation after the commencement of this Act by which a new trustee is appointed for any purpose connected with land as to how a vacancy in the office of trustee occurred shall, in favour of a purchaser of the land, be conclusive evidence of the matter stated.

In favour of any 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.

Where there are 2 or more trustees—

then, subject to the provisions of subsection (3), 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.

Any assurance or thing requisite for vesting the trust property in the continuing trustees alone shall be executed and done.

Except where only 1 trustee was originally appointed, a trustee shall not be discharged under subsection (1) unless there will be either a trustee corporation or at least 2 individuals to act as trustees to perform the trust.

Where any trustee is desirous of being discharged from his trust he shall be entitled to retire therefrom on passing his accounts before the Registrar, and giving notice of his retirement to his co-trustees (if any), and to such other person (if any) as is empowered to appoint new trustees.

If such co-trustees, or such other person as aforesaid empowered to appoint new trustees, or any of them, refuse or neglect to appoint a new trustee or to consent to such appointment in place of the trustee so retiring, or if the retiring trustee is the sole trustee having power to appoint a new trustee, but the exercise of that power is impracticable or difficult without the assistance of the court, it shall be lawful for the retiring trustee to apply to the court for the appointment of a new trustee in his place.

The court may, upon any such application, make an order appointing some proper person as trustee in place of the trustee so desirous of being discharged from his trust, and direct any accounts and inquiries to be made, and make an order discharging the trustee from the trust and from all liability in respect thereof, and may make such order as to costs or otherwise as it thinks fit, and may exercise any of the powers contained in Part 5; and the person who upon the making of the order becomes trustee shall have the same rights and powers as he would have had if appointed by judgment in an action duly instituted.

If the court, on an application under subsection (2) by a trustee other than a supervisor, appoints Public Trust as the replacement trustee, Public Trust must accept the appointment.

In subsection (4), supervisor means a person appointed as a supervisor within the meaning of section 6(1) of the Financial Markets Conduct Act 2013.

Where by a deed a new trustee is appointed to perform any trust, then—

Where by a deed a retiring trustee is discharged under the statutory power without a new trustee being appointed, then—

An express vesting declaration, whether made before or after the commencement of this Act, shall, notwithstanding that the estate or interest or right to be vested is not expressly referred to, and provided that the other statutory requirements were or are complied with, operate and be deemed always to have operated (but without prejudice to any express provision to the contrary contained in the 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.

This section does not extend—

For purposes of registration of the deed in any registry, the person or persons making the declaration expressly or impliedly shall be deemed the conveying party or parties, and the conveyance shall be deemed to be made by him or them under a power conferred by this Act.

Any trustee corporation may be appointed and may lawfully act as the sole trustee in respect of any trust, notwithstanding that the instrument creating the trust may provide for or direct the appointment of 2 or more trustees. Nothing in this subsection shall prevent any other corporation from acting as a trustee in accordance with any authority vested in it in that behalf, whether by its memorandum of association or otherwise:

This section shall not permit the appointment of a corporation as trustee if the instrument creating the trust forbids the appointment of the corporation.

This section shall extend to all trusts and instruments, and to all appointments of trustees, whether created or made before or after the commencement of this Act.

In the administration of any trust property any trustee may act, to the extent hereinafter provided, with an advisory trustee, which term includes, in its application to the estate of a mentally disordered person, an advisory manager or advisory administrator of the estate; and also includes, in its application to the estate or any part of the estate of any person in respect of whom a property order is made under the Protection of Personal and Property Rights Act 1988, an advisory manager of the estate, or any part thereof.

An advisory trustee may be appointed in respect of all or any part of the trust property—

Where a trustee acts with an advisory trustee 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 he were the sole trustee:

No person dealing with the responsible trustee in relation to any trust property shall be concerned to inquire as to the concurrence or otherwise of the advisory trustee, or be affected by notice of the fact that the advisory trustee has not concurred.

Subject to the provisions of the instrument (if any) creating the trust and to any order made by the court, in any case where remuneration 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 determined,—

Subject to the provisions of this section and to the instrument (if any) creating the trust, any corporation may be appointed to be custodian trustee of any trust in any case where it could be appointed to be trustee, in the same manner as it could be so appointed.

Subject to the provisions of the instrument (if any) creating the trust, where a custodian trustee is appointed of any trust—

On the application of the custodian trustee, or of any of the managing trustees, or of any beneficiary, and on satisfactory proof that it is the general wish of the beneficiaries, or that on other grounds it is expedient to terminate the custodian trusteeship, the court may make an order for that purpose, and may also make such vesting orders and give such directions as in the circumstances seem to the court to be necessary or expedient.

Subject to the provisions of the instrument (if any) creating the trust and to any order made by the court, in any case where remuneration or commission is payable to the trustee of any trust property, remuneration may be paid to both the custodian trustee and the managing trustees, and subject as aforesaid the amount thereof shall be determined,—

The court may, whenever it is expedient to appoint a new trustee or new trustees, and it is found inexpedient, difficult, or impracticable so to do without the assistance of the court, make an order appointing a new trustee or new trustees, either in substitution for or in addition to any existing trustee or trustees, or although there is no existing trustee.

In particular and without prejudice to the generality of the foregoing provision, the court may make an order appointing a new trustee in substitution for a trustee who—

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.

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

Every trustee appointed by the court shall, as well before as after the trust property becomes by law, or by assurance, or otherwise, vested in him, have the same powers, authorities, and discretions, and may in all respects act as if he had been originally appointed a trustee by the instrument, if any, creating the trust.

Subject to the provisions of subsections (2) and (3), in any of the following cases, namely—

the court may make an order (in this Act called a vesting order) vesting the land or interest therein in any 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.

Where any such 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.

Where any such order relates to a trustee entitled or formerly entitled jointly with another person, and that trustee is under disability or out of the jurisdiction of the court or cannot be found, or (being a corporation) has ceased to carry on business or is in liquidation or has been dissolved, the land, interest, or right shall be vested in the other person who remains entitled, either alone or with any other person that the court may appoint.

Where any interest in land is subject to a contingent right in an unborn person or class of unborn persons, who, on coming into existence would, in respect thereof, become entitled to or possessed of that interest on any trust, the court may make an order releasing the land or interest therein from the contingent right, or may make an order vesting in any person the 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 any person entitled to or possessed of any interest in land, or entitled to a contingent right in land, by way of security for money, is an infant, the court may make an order vesting or releasing or disposing of the interest in the land or the right in like manner as in the case of a trustee under disability.

Where the court gives a judgment or makes an order directing the sale or mortgage of any land, every person who is entitled to or possessed of any interest in the land, or entitled to a contingent right therein, and is a party to the action or proceeding in which the judgment or order is given or made or is otherwise bound by the judgment or order, shall be deemed to be so entitled or possessed, as the case may be, as a trustee for the purposes of this Act, and the court may, if it thinks expedient, make an order vesting the land or any part thereof for such estate or interest as the court thinks fit in the purchaser or mortgagee or in any other person.

Where a judgment is given for the specific performance of a contract concerning any interest in land, or for sale or exchange of any interest in land, or generally where any judgment is given for the conveyance of any interest in land, either in cases arising out of the doctrine of election or otherwise, the court may declare—

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.

A vesting order under any of the foregoing provisions shall, in the case of a vesting order consequential on the appointment of a trustee, have the same effect—

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 age and full mental capacity and had executed a conveyance or release to the effect intended by the order.

This section shall, as regards land under the Land Transfer Act 1952, be read and construed subject to section 99 of that Act.

In all cases where a vesting order can be made under any of the foregoing provisions, the court may, if it is more convenient, appoint a person to convey the land or any interest therein or release the contingent right, and a conveyance, or release by that person in conformity with the order shall have the same effect as an order under the appropriate provision.

Subject to the provisions of subsections (2), (3), and (4), in any of the following cases, namely—

the court may make an order vesting the right to transfer or call for a transfer of stock, or to receive the dividends or income thereof, or to sue for or recover the thing in action in any person as the court may appoint.

Where any such order is consequential on the appointment of a trustee, the right shall be vested in the persons who, on the appointment, are the trustees.

Where the person whose right is dealt with by any such order was entitled jointly with another person, the right shall be vested in that last-mentioned person either alone or jointly with any other person whom the court may appoint.

No such order shall be made vesting shares that are not fully paid up in any person unless he applies for the order or consents to the making of the order.

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; and without restricting the powers of the court under this subsection it is hereby declared that the person appointed to make or join in making a transfer of stock may be some proper officer of the bank or company or society or association in whose books the stock is to be transferred.

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 banks, societies, associations, companies, and persons shall obey every order under this section according to its tenor.

After notice in writing of an order made under this section it shall not be lawful for any bank, society, association, company, or person to transfer any stock to which the order relates or to pay any dividends thereon except in accordance with the order.

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.

The provisions of this Act as to vesting orders shall apply to shares in ships registered in New Zealand under the Shipping and Seamen Act 1952, and to patents, designs, trade marks, and copyright, as if they were stock.

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

Where a vesting order is made as to any land under this Act or under any other Act founded on an allegation of any of the following matters namely—

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.

Subject to any contrary intention expressed in the instrument (if any) creating the trust, where in the opinion of the court any sale, lease, mortgage, surrender, release, or other disposition, or any purchase, investment, acquisition, retention, expenditure, or other transaction is expedient in the management or administration of any property vested in a trustee, or would be in the best interests of the persons beneficially interested under the trust, but it is inexpedient or difficult or impracticable to effect the same without the assistance of the court, or the same cannot be effected by reason of the absence of any power for that purpose vested in the trustee by the trust instrument (if any) or by law, the court may by order confer upon the trustee, either generally or in any particular instance, the necessary power for the purpose, on such terms, and subject to such provisions and conditions (if any) as the court may think fit, and may direct in what manner any money authorised to be expended, and the costs of any transaction, are to be paid or borne, and as to the incidence thereof between capital and income:

The court may from time to time rescind or vary any order made under this section, or may make any new or further order:

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.

Without limiting any other powers of the court, it is hereby declared that where any property is held on trusts arising under any will, settlement, or other disposition, or on the intestacy or partial intestacy of any person, or under any order of the court, the court may if it thinks fit by order approve on behalf of—

any arrangement (by whomsoever 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:

Any rearrangement approved by the court under subsection (1) shall be binding on all persons on whose behalf it is so approved, and thereafter the trusts as so rearranged shall take effect accordingly.

In this section—

In this section—

Where any sum is paid to the trustee by a company by way of a capital dividend, the court may if it thinks fit, by order, empower or direct the trustee to treat the whole or any part of that sum as capital for the purposes of the trust.

In considering any application for an order under this section, the court shall not be limited to a determination of the intentions of the testator or settlor in regard to the matter, but may be guided by what is fair and just as between those persons who are entitled to the income and those who are entitled to the capital of the trust, having particular regard to the present and likely future needs of those persons, the history of the administration of the trust to date, and all such other circumstances of the case as the court considers relevant.

No action shall lie against the trustee for having distributed as income the whole or any part of the amount received by the trustee by way of capital dividend if the distribution was properly made by the trustee before service on the trustee of any application under this section that could affect that amount and without notice in writing of any such application or intention to make such an application; but nothing in this subsection shall prevent the court from making an order pursuant to subsection (6) disturbing the distribution made by the trustee.

For the purposes of subsection (4), section 48 of the Administration Act 1969 shall apply with all necessary modifications.

Where the court makes an order under subsection (2) after the trustee has distributed as income the whole or any part of the amount received by the trustee by way of capital dividend, the court may also make any order of a kind authorised by subsection (1) of section 49 of the Administration Act 1969 (which relates to the following of assets); and the provisions of that section and sections 50 and 51 of that Act shall apply with any necessary modifications.

Any trustee may apply to the court for directions concerning any property subject to a trust, or respecting the management or administration of any such property, or respecting the exercise of any power or discretion vested in the trustee.

Every such application shall be served upon, and the hearing may be attended by, all persons interested in the application or such of them as the court thinks expedient.

An order under this Act for the appointment of a new trustee or concerning any property subject to a trust may be made on the application of any person beneficially interested in the property, whether under disability or not, or on the application of any person duly appointed trustee thereof or intended to be so appointed.

An order under this Act concerning any interest in any property subject to a mortgage may be made on the application of any person beneficially interested in the property, whether under disability or not, or of any person interested in the money secured by the mortgage.

Any person who is beneficially interested in any trust property, and who is aggrieved by any act or omission or decision of a trustee in the exercise of any power conferred by this Act, or who has reasonable grounds to anticipate any such act or omission or decision of a trustee by which he will be aggrieved, may apply to the court to review the act or omission or decision or to give directions in respect of the anticipated act or omission or decision; and the court may require the trustee to appear before it, and to substantiate and uphold the grounds of the act or omission or decision that is being reviewed, and may make such order in the premises as the circumstances of the case may require:

Where any such application is made, the court may,—

Any trustee acting under any direction of the court shall be deemed, so far as regards his own responsibility, to have discharged his duty as such trustee in the subject matter of the direction, notwithstanding that the order giving the direction is subsequently invalidated, overruled, set aside, or otherwise rendered of no effect:

Where in any proceedings the court is satisfied that diligent search has been made for any person who, in the character of trustee, is made a defendant in any action, to serve him with a process of the court, and that he cannot be found, the court may hear and determine the proceedings and give judgment therein against that person in his character of a trustee as if he had been duly served, or had entered an appearance in the action, and had also appeared by his counsel and solicitor at the hearing, but without prejudice to any interest he may have in the matters in question in the proceedings in any other character.

The court may order the costs and expenses of and incidental to any application for any order under this Act, or of and incidental to any such order, or any conveyance or assignment in pursuance thereof, to be raised and paid out of the property in respect whereof the same is made, or out of the income thereof, or to be borne and paid in such manner and by such persons as to the court may seem just.

The court may, out of the property subject to any trust, allow to any person who is or has been a trustee thereof or to that person’s personal representative such commission or percentage for that person’s services as is just and reasonable.

In considering under subsection (1) what commission or percentage is just and reasonable the court shall have regard to the following circumstances, namely:

The court may make any such allowance at any time, and from time to time, before or during the administration of the trust, or on the termination of the trust, and may, subject to such terms and conditions as the court thinks fit, make any such allowance in respect of services to be rendered by the trustee during any specified period subsequent to the date of the order.

Where the court allows a commission or percentage under this section in any case in which 2 or more persons are or have been the trustees, whether acting at the same time or at different times, the amount so allowed shall be apportioned among the trustees as they mutually agree; and if there is no such agreement the court may, in its discretion, apportion the total amount allowed among the trustees in such manner as it thinks fit, and, in particular, may divide the amount in unequal shares or may make the allowance to 1 or more of the trustees to the exclusion of the other or others.

Rules may from time to time be made in the manner prescribed by the Senior Courts Act 2016 for carrying the provisions of this section into effect. The Executors Commission Rules 1935 and the Executors Commission Rules 1935, Amendment No 1, so far as they were in force on 31 December 1956, shall continue and have effect as if they had been made under this subsection and as if this section had been in force when they were made, and may be amended or revoked accordingly.

If it appears to the court that a trustee, whether appointed by the court or otherwise, is or may be personally liable for any breach of trust, whether the transaction alleged to be a breach of trust occurred before or after the commencement of this Act, but has acted honestly and reasonably, and ought fairly to be excused for the breach of trust and for omitting to obtain the directions of the court in the matter in which he committed the breach, then the court may relieve him either wholly or partly from personal liability for the same.

Where a trustee commits a breach of trust at the instigation or request or with the consent in writing of a beneficiary, the court may, if it thinks fit, and notwithstanding that the beneficiary may be a married woman restrained from anticipation, make such order as to the court seems just for impounding all or any part of the interest of the beneficiary in the trust estate by way of indemnity to the trustee or persons claiming through him.

This section applies to breaches of trust committed as well before as after the commencement of this Act.

Where a trustee desires to reject a claim that has been made, or that he has reason to believe may be made,—

the trustee may serve upon the claimant or the person who may become a claimant as aforesaid a notice calling upon him, within a period of 3 months from the date of service of the notice, to take legal proceedings to enforce the claim and also to prosecute the proceedings with all due diligence.

At the expiration of that period the trustee may apply to the court for an order under subsection (3), and shall serve a copy of the application on the person concerned.

If on the hearing of that application that person does not satisfy the court that he has commenced the proceedings and is prosecuting them with all due diligence, the court may make an order—

Where a trustee has served any such notices in respect of claims on 2 or more persons and the period specified in each of the said notices has expired, he may, if he thinks fit, apply for an order in respect of the claims of those persons in a single application, and the court may on that application make an order accordingly.

This section shall apply to every such claim as aforesaid, whether the claim is or may be made under the Law Reform (Testamentary Promises) Act 1949 or as creditor or next of kin or beneficiary under the trust or otherwise:

On an application by a trustee under this section, the persons beneficially entitled to the estate or property need not be made parties to the proceedings, and no order made by the court on the application shall prejudice their right to contest the claim of the trustee to be entitled to indemnify himself out of the estate or property that he is administering if they have not been parties to the proceedings in which the order was made.

Where any property is held by a trustee and the property or any part thereof cannot be distributed because the trustee does not know whether any person who is or may be entitled thereto is or at any material date was in existence, or whether all or any of the persons who are members of any class who are or may be entitled thereto are or at any material date were in existence, or because the trustee does not know whether any such person is alive or dead or where he is, the trustee may publish such advertisements (whether in New Zealand or elsewhere) as are appropriate in the circumstances calling upon every such person and every person claiming through any such person to send in his claim within a time to be specified in the advertisements, not being less than 2 months in any case from the date on which the advertisement is published. Where the trustee is in doubt as to what advertisements should be published under this subsection, he may apply to the court for directions in that regard.

Where the trustee has received (whether as a result of the advertisements or not) any claim to be a person to whom any such advertisement relates, or any notice that any person may claim to be such a person, but the trustee is not satisfied that the claim is or would be valid, the trustee may serve upon the claimant or the person of whom the trustee has notice as aforesaid, a notice calling upon him, within a period of 3 months from the date of service of the notice, to take legal proceedings to enforce the claim, if he wishes to pursue it, and to prosecute the proceedings with all due diligence; and advising him that, if he fails to do so, his claim may be disregarded and application may be made to the court without further notice for an order authorising the distribution of the property. Nothing in this subsection shall make it necessary for the trustee to serve such a notice on any such person; and the court may make an order under this section, whether or not such a notice has been served on any such person, if it is satisfied that the information supplied to the trustee by that person or otherwise in the possession of the trustee indicates either that the person is not one of the persons specified in the advertisements or that he is not likely to be one of those persons.

Upon proof by affidavit of the circumstances, and of the inquiries that have been made, and of the results of inquiries and advertisements, and of the claims of which the trustee has received notice, and of the notices that the trustee has given to claimants under subsection (2), and of the action (if any) which the claimants have taken to enforce their claims, the court may order that the trustee may distribute the property or part thereof, subject to such conditions as the court may impose,—

In making any order under subsection (3), the court may—

Any such order may be made notwithstanding that there has not been strict compliance with any directions as to advertisements previously given by the court, or that an error has been made in any advertisement (whether or not any directions have previously been given by the court) if the court considers that the error would not be likely to have prejudiced or misled the persons to whom the advertisement relates.

Where the court makes an order under this section that the trustee may distribute any property or part thereof as if every person and every member of any class of persons specified in the order (not being a person expressly excluded from the operation of the order) is not in existence or never existed or has died before a date or event specified in the order, and the trustee distributes in accordance with the order, the trustee shall be exonerated from any further liability to any such person or to any member of any such class:

The court may make 1 or more orders under this section in respect of the same property.

Any order made under this section may direct how the costs of the order and of advertising under or for the purposes of the order shall be borne.

It shall not be necessary to serve notice of an application for an order under this section upon any person, unless the court otherwise orders.

Nothing in this section shall prejudice the right of the trustee (if he so desires) to distribute under any other law or statutory provision or prejudice the protection thereby afforded when he makes distribution pursuant to any such law or provision.

Any notice, application, or order that is to be served in accordance with section 75 or section 76, or in accordance with any order made pursuant to section 76, may be served—

Where a notice is sent by post as aforesaid it shall be deemed to be served at the time at which the letter would have been delivered in the ordinary course of post.

Trustees, or the majority of trustees, having in their hands or under their control money or securities belonging to a trust, may, on filing in the court nearest to which they or the majority of them reside an affidavit describing the instrument creating the trust and giving particulars of the persons beneficially entitled under the trust according to the best of their knowledge and belief, and on serving a copy of the affidavit on the Secretary to the Treasury, pay the money or transfer the securities (if they can legally be so transferred) to the Crown in the matter of the particular trust, which shall be described in the affidavit by the names of the parties as accurately as may be for the purpose of distinguishing it. All money and securities so paid or transferred shall be administered in the Treasury. All such money and all money derived from securities which have been transferred to or vested in the Crown under this section shall be credited by the Secretary to the Treasury to the Trust Account established under section 42 of the Public Finance Act 1977 to be dealt with as hereafter provided in this Act.

The receipt of the Secretary to the Treasury shall be a sufficient discharge to the trustees for the money or securities paid or transferred to the Crown under this section.

Where money or securities are vested in any persons as trustees, and the majority are desirous of paying or transferring the same to the Crown as aforesaid, but the concurrence of the other or others cannot be obtained, the court may order the payment or transfer to the Crown to be made by the majority without the concurrence of the other or others.

Where any such money or securities are deposited with any banker, broker, or other depositary, the court may order payment or delivery of the money or securities to the majority of the trustees for the purpose of payment or transfer to the Crown.

Every transfer, payment, and delivery made in pursuance of any such order shall be valid and take effect as if the same had been made on the authority or by the act of all the persons entitled to the money and securities so transferred, paid, or delivered.

The Secretary to the Treasury may at any time sell any securities held by the Crown under this section.

Where any securities have been transferred to or deposited with any Registrar under section 67 of the Trustee Act 1908 or under the corresponding provisions of any former enactment and are held by him at the commencement of this Act, those securities shall thereupon vest without transfer or assignment in the Crown.

Where any trustee has obtained or is seeking a discharge in respect of any money or securities under this section or has obtained such a discharge under the corresponding provisions of any former section, the Secretary to the Treasury may at any time require that trustee to give such information in his possession or control as he may require in relation to the persons beneficially entitled to the money or securities, including information as to the steps taken to trace those persons; and if any person refuses or wilfully neglects to give any such information that is in his possession or control when so required, or wilfully gives any false information in answer to any such requisition, he or she commits an offence and is liable on conviction to a fine not exceeding $200.

At the end of each financial year the Secretary to the Treasury shall publish in the Gazette a statement of all money and securities then held by the Crown under section 77, being—

Every statement so published in the Gazette shall contain sufficient particulars to show the matters in which the money and securities are held by the Crown and the amount held in respect of each matter.

All money and securities for the time being held by the Crown under section 77 (whether or not they are held in a Crown Bank Account) shall be so held to attend the order of the court:

The Secretary to the Treasury shall from time to time transfer to a Crown Bank Account all money held under section 77, being money which was—

Any money previously transferred to a Crown Bank Account under subsection (4) which is paid or required to be paid under subsection (3) may be paid out of a Crown Bank Account without further appropriation than this subsection.

Under no circumstances shall the liability of the Crown or the Secretary to the Treasury in respect of any securities which are transferred to or vested in the Crown under section 77 exceed the value of those securities and of any other securities and money which are held by the Crown and subject to the same trusts at the time when demand is made for satisfaction of the liability. If the said securities and money are insufficient to meet any such liability, the claimant shall, in respect of any unpaid balance of the liability, have the same rights and remedies against the person beneficially entitled to the securities in respect of which the liability arose as he would if those securities were transferred to that person.

Neither the Crown nor the Secretary to the Treasury shall have the duties or liabilities of a trustee in respect of any money or securities for the time being held by the Crown under section 77 (whether in a Crown Bank Account or not); and no interest shall be payable by the Crown or the Secretary to the Treasury in respect of any money so held.

Where any money or securities paid or transferred to any claimant under this section are afterwards claimed by any other person, the Crown and the Secretary to the Treasury shall not be responsible for the payment or transfer thereof, but that person shall have recourse against the claimant to whom the money was paid or the securities were transferred.

Upon application made ex parte by such person or persons as are competent or necessary in that behalf, the court may from time to time make such order as it thinks fit in respect of any money or securities for the time being held by the Crown under section 77 (whether in a Crown Bank Account or not), and for the payment, transfer, and administration thereof:

Every such order shall have the same authority and effect and shall be subject to rehearing and appeal in the same manner as if it had been made in any action regularly instituted in the court; and if it appears that any such money or securities cannot be safely distributed without the institution of 1 or more actions, the court may direct any such action to be instituted.

This Act, and every order purporting to be made under this Act, shall be a complete indemnity to all banks, companies, societies, associations, and persons for any acts done pursuant thereto, and it shall not be necessary for any bank, company, society, association, or person to inquire concerning the propriety of the order, or whether the court had jurisdiction to make it.

Where there are more trustees than 1, and the trustees, by writing under their hands communicated to a bank at which their account is kept, arrange that the account may be operated upon by cheques or drafts signed by 1 or more of them, or by 1 of them and a delegate or delegates named in the writing of another or others of them, the bank shall be entitled to honour and pay the cheques or drafts as if they had been signed by all the trustees, until the bank receives notice in writing of the revocation, by death or otherwise, of the arrangement.

Nothing in this section or in any rule of law shall prevent trustees from opening a bank account named as an imprest account and from authorising any 1 or more of their number or any other person or persons to operate upon the imprest account.

For the purposes of this section—

Where any payment received by a trustee in respect of a sale of any fixed-income asset is or includes payment for the right to receive income accrued from that asset at the time of sale, though the income may not then be due, the amount of the accrued income shall, for the purposes of the trust, be deemed to have been received as income in respect of the period during which it so accrued.

Where any payment made by a trustee in respect of a purchase of any fixed-income asset is or includes payment for the right to receive any income accrued from that asset at the time of the purchase, though the income may not then be due, the amount of the accrued income when received shall, for the purposes of the trust, be deemed to have been received as purchase money repaid.

Where a trustee transfers any shares (not being a fixed-income asset) to the person entitled thereto under the trust, then, unless the trustee in his absolute discretion having regard to all the circumstances of the case thinks that it is equitable, practicable, and convenient to make an apportionment, there shall be no apportionment of any dividends which have accrued at the date of transfer but have not then been declared, and no person who would have been beneficially interested in any such dividends if they had been declared and paid to the trustee shall have any claim in respect thereof against the trustee or against the transferee of the shares.

Where a trustee sells any shares that are not a fixed-income asset, no part of the proceeds of the sale shall, for the purposes of the trust, be deemed to have been paid for the right to receive dividends which have accrued in respect of the shares at the time of the sale, but have not then been declared, and there shall accordingly be no apportionment of the proceeds as between capital and income.

Where a trustee purchases any shares that are not a fixed-income asset, no part of the purchase price shall, for the purposes of the trust, be deemed to be paid for the right to receive any dividends which have accrued in respect of the shares at the time of the purchase but have not then been declared, and there shall accordingly be no apportionment of the purchase price as between capital and income, nor shall any part of the dividends received by the trustee be deemed to have been received as purchase money repaid.

Except as herein expressly provided, nothing in this section shall affect the rights and obligations of the trustee or of any other person in respect of apportionment of income on the sale or purchase of any asset or the transfer thereof to any person beneficially entitled thereto.

Anything done by a trustee before the commencement of this section which would have been authorised by this section if then in force shall be deemed to have been authorised by this section.

The provisions of this section shall apply if and so far only as a contrary intention is not expressed in the instrument, if any, creating the trust, and shall have effect subject to the terms of that instrument.

In the case of any trust estate administered by a trustee corporation, a solicitor or accountant authorised in writing by a beneficiary shall be entitled as of right to examine at any reasonable time the accounts of that estate, and for that purpose shall have access to the trustee corporation’s books and vouchers (but not the file) relating to that estate, and to the securities and documents of title held by the trustee corporation on account of that estate.

Subject to the provisions of any regulations made under this Act, and unless the court otherwise orders, the condition and accounts of any trust estate (being an estate which is not being administered by a trustee corporation) shall, on an application being made and notice thereof being given in the prescribed manner by or on behalf of any trustee or beneficiary in that estate, be investigated and audited by such solicitor or such qualified statutory accountant as may be agreed on between the applicant trustee and his co-trustees and Public Trust, or between the applicant beneficiary and the trustees and Public Trust, as the case may be, or, in default of any such agreement, by a solicitor or a qualified statutory accountant appointed by Public Trust:

In subsection (1), qualified statutory accountant has the same meaning as in section 5(1) of the Financial Reporting Act 2013.

The person making the investigation or audit (in this section called the auditor) shall have a right of access to the books, accounts, and vouchers of the trustees, and to any securities and documents of title held by them on account of the estate, and may require from them such information and explanations as may be necessary for the performance of his duties.

Upon the completion of the investigation and audit, the auditor shall forward to the applicant, and to every trustee, and to Public Trust, a copy of the accounts of the estate, together with a report thereon, and a certificate signed by him to the effect that the accounts correctly show the state of the affairs of the estate, and that he has had the securities of the trust fund investments (if any) produced to and verified by him, or (as the case may be) that such accounts are deficient in such respects as may be specified in that certificate.

Every beneficiary shall, subject to the provisions of any regulations made under this section, be entitled at all reasonable times to inspect and take copies of the accounts, report, and certificate, and, at his own expense, to be furnished with copies thereof or extracts therefrom.

The auditor may be removed by order of the court; and if any auditor is removed, or resigns, or dies, or becomes bankrupt or incapable of acting before the investigation and audit are completed, a new auditor may be appointed in his place in like manner as the original auditor was appointed.

The remuneration of the auditor and the other expenses of the investigation and audit (including Public Trust’s charges) shall be such as may be prescribed by regulations under this section or (in the absence of any such prescription) as may be determined by the court, and shall, unless the court otherwise orders, be borne by the estate; and, in the event of the court so ordering, such expenses shall be borne by the trustees personally or any of them, or by the applicant, or be apportioned between them or any of them, or between them and any of them and the estate, in such proportions as the court thinks just.