ARRANGEMENT OF SECTIONS

SECTION

CHAPTER 177

PUBLIC TRUSTEE

[Assent 2nd April, 1970]
[Commencement 1st April, 1971]

"court" means the Supreme Court;

"expenses" includes costs and charges;

"letters of administration" means letters of administration of the estate and effects of a deceased person, whether general or with will annexed or limited either in time or otherwise;

"Minister" means the Minister responsible for Law Courts;

"private trustee" means a trustee other than the Public Trustee;

"rules" means rules made under this Act;

"rules of court" means rules made by the Rules Committee of the court under section 76 of the Supreme Court Act;

"section" means a section of this Act;

"settlement" means a settlement created by any deed, will, agreement for a settlement or other agreement, Act or other instrument or any number of instruments under or by virtue of which instrument or instruments any land is for the time being-

"trust" includes an executorship or administratorship and "trustee" shall be construed accordingly;

"trust property" includes all property in the possession or under the control wholly or partly of the Public Trustee by virtue of any trust;

and other words and expressions have the same meaning as in theTrustee Act.

(2) The Public Trustee shall be a corporation sole under that name, with perpetual succession and a common seal, and may sue and be sued in his corporate name, but any instrument sealed by him shall not, by reason of his using a seal, be rendered liable to a higher stamp duty than if he were an individual.

(2) Subject to the provisions of this Act and to any rules, the Public Trustee may act either alone or jointly with any person or body of persons in any capacity to which he may be appointed in pursuance of this Act, and shall have all the same powers, duties and liabilities, and be entitled to the same rights and immunities and be subject to the control and orders of the court, as a private trustee acting in the same capacity.

(3) The Public Trustee may decline, either absolutely or except on the prescribed conditions, to accept any trust, but he shall not decline to accept any trust on the ground only of the small value of the trust property.

(4) The Public Trustee shall not accept any trust which involves the management or the carrying on of any business, except in the cases on which he may be authorised to do so by rules, nor any trust under a deed of arrangement for the benefit of creditors, nor the administration of any estate known or believed by him to be insolvent.

(2) On the Public Trustee undertaking, by declaration in writing signed and sealed by him, to administer the estate, the trust property other than stock shall by virtue of this Act vest in him and the right to transfer or call for the transfer of any stock forming part of the estate shall also vest in him in like manner as if vesting orders had been made for the purpose by the court under the Trustee Act, and that Act shall apply accordingly. As from such vesting any trustee entitled under the trust to administer the estate shall be discharged from all liability attaching to the administration, except in respect of past acts:

Provided that the Public Trustee shall not exercise the right of himself transferring the stock without the leave of the court.

(3) For the purposes of the administration, the Public Trustee may exercise such of the administrative powers and authorities of the court as may be conferred upon him by rules, subject to such conditions as may be imposed by the rules.

(4) Rules shall be made for enabling the Public Trustee to take the opinion of the court on any question arising in the course of any administration without judicial proceedings, and otherwise for making the procedure under this section simple and inexpensive.

(5) Where proceedings have been instituted in the court for the administration of an estate, and by reason of the small value of the estate it appears to the court that the estate can be more economically administered by the Public Trustee than by the court, or that for any other reason it is expedient that the estate should be administered by the Public Trustee instead of the court, the court may order that the estate shall be administered by the Public Trustee, and thereupon (subject to any directions by the court) this section shall apply as if the administration of the estate had been undertaken by the Public Trustee under this section.

(2) Where the Public Trustee is appointed to be custodian trustee of any trust-

Provided that the custodian trustee may allow the dividends and other income derived from the trust property to be paid to the managing trustees or to such person as they direct, or into such bank to the credit of such person as they may direct, and in such case shall be exonerated from seeing to the application thereof and shall not be answerable for any loss or misapplication thereof;

(3) The provisions of this section shall apply in like manner as to the Public Trustee to any banking or insurance company or other body corporate entitled by any rules to act as custodian trustee, with power for such company or body corporate to charge and retain or pay out of the trust property fees not exceeding the fees chargeable by the Public Trustee as custodian trustee.

(2) Where the Public Trustee has been appointed a trustee of any trust, a co-trustee may retire from the trust under and in accordance with section 11 of the Trustee Act, notwithstanding that there are not more than two trustees, and without such consents as are required by that section.

(3) The Public Trustee shall not be so appointed either as a new or additional trustee where the will, settlement or other instrument creating the trust or duty contains a direction that the Public Trustee shall not be appointed to be a trustee, unless the court otherwise orders.

(4) Notice of any proposed appointment of the Public Trustee either as a new or additional trustee shall, where practicable, be given in the prescribed manner to all persons beneficially interested who are resident in The Bahamas and whose addresses are known to the persons proposing to make the appointment, or, if such beneficiaries are infants, to their guardians, and if any person to whom such notice has been given within twenty-one days from the receipt of the notice applies to the court, the court may if having regard to the interests of all the beneficiaries it considers it expedient to do so, make an order prohibiting the appointment being made:

Provided that a failure to give any such notice shall not invalidate any appointment made under this section.

(2) Any executor who has obtained probate or any administrator who has obtained letters of administration, and notwithstanding he has acted in the administration of the deceased's estate, may, with the sanction of the court, and after such notice to the persons beneficially interested as the court may direct, transfer such estate to the Public Trustee for administration either solely or jointly with the continuing executors or administrators, if any. And the order of the court sanctioning such transfer shall, subject to the provisions of this Act, give to the Public Trustee all the powers of such executor and administrator, and such executor and administrator shall not be in any way liable in respect of any act or default in reference to such estate subsequent to the date of such order, other than the act or default of himself or of persons other than himself for whose conduct he is in law responsible.

Provided that (except with the leave of the court) such an investigation or audit shall not be required within twelve months after any such previous investigation or audit, and that a trustee or beneficiary shall not be appointed under this section to make an investigation or audit.

(2) The person making the investigation or audit (hereinafter 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 trust, and may require from them such information and explanations as may be necessary for the performance of his duties, and, upon the completion of the investigation and audit, shall forward to the applicant and to every trustee a copy of the accounts, together with a report thereon, and a certificate signed by him to the effect that the accounts exhibit a true view of the state of the affairs of the trust and that he has had the securities of the trust fund investments 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 such certificate.

(3) Every beneficiary under the trust shall, subject to any rules, 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.

(4) 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 is completed, a new auditor may be appointed in his place in like manner as the original auditor.

(5) The remuneration of the auditor and the other expenses of the investigation and audit shall be such as may be prescribed by rules, and shall, unless the Public Trustee otherwise directs, be borne by the estate; and, in the event of the Public Trustee so directing, he may order that such expenses be borne by the applicant or by the trustees personally or partly by them and partly by the applicant.

(6) If any person having the custody of any documents to which the auditor has a right of access under this section fails or refuses to allow him to have access thereto or in any wise obstructs the investigation or audit, the auditor may apply to the court, and thereupon the court shall make such order as it thinks just.

(7) Subject to rules of court, applications under or for the purposes of this section to the court shall be made to a judge in chambers.

(8) If any person in any statement of accounts, report or certificate required for the purposes of this section wilfully makes a statement false in any material particular, he shall be liable, on conviction on information, to imprisonment for a term not exceeding two years or to a fine not exceeding two thousand dollars or to both such imprisonment and fine or, on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding five hundred dollars or to both such imprisonment and fine.

(2) All sums payable in pursuance of this section shall be paid out of the Consolidated Fund.

(2) Every order made under this section shall indicate, with respect to each fee fixed by the order, whether it is payable out of capital or out of income.

(3) Where an order made under this section provides that a fee is to be paid out of capital, and it appears to the Public Trustee in the case of a particular trust fund that there are special reasons which render it expedient that the fee should be paid out of income, the Public Trustee may direct that the fee shall in that case be payable out of income:

Provided that, if a person of full age is for the time being beneficially entitled in possession to the income of the trust fund (being so entitled directly under the trust in relation to which the fee is payable and not by virtue of a derivative settlement) the Public Trustee shall not give a direction under this subsection in respect of that trust fund except with consent in writing of that person.

(4) The fees under this section shall be arranged from time to time so as to produce an annual amount sufficient to discharge the salaries and expenses incidental to the working of this Act (including such sum as the Minister of Finance may from time to time determine to be required to insure the Consolidated Fund against loss under this Act) and no more.

(5) In this section-

"trust fund" includes any part of a trust fund and also includes an estate administered by the Public Trustee and any part of such an estate; and

"trust" includes the administration of a small estate by the Public Trustee under section 6.

(2) In any proceedings before the court under this Act the Public Trustee may appear either personally or by counsel and attorney.

(3) Where any bond or security would be required from a private person upon the grant to him of administration, or upon his appointment to act in any capacity, the Public Trustee, if administration is granted to him or if he is appointed to act in such capacity, shall not be required to give such bond or security but shall be subject to the same liabilities and duties as if he had given such bond or security.

(4) The entry of the Public Trustee by that name in the books of a company shall not constitute notice of a trust, and a company shall not be entitled to object to enter the name of the Public Trustee on its books by reason only that the Public Trustee is a corporation, and, in dealings with property, the fact that the person or one of the persons dealt with is the Public Trustee shall not of itself constitute notice of a trust.

(2) If the rules require a declaration to be made for any purpose, a person who makes such declaration knowing the same to be untrue in any material particular, shall be guilty of an offence and liable upon summary conviction to a fine not exceeding two years or to both such fine and imprisonment.