1 Trustee LAWS OF MALAYSIA REPRINT Act 208 TRUSTEE ACT 1949 Incorporating all amendments up to 1 January 2006 PUBLISHED BY THE COMMISSIONER OF LAW REVISION, MALAYSIA UNDER THE AUTHORITY OF THE REVISION OF LAWS ACT 1968 IN COLLABORATION WITH PERCETAKAN NASIONAL MALAYSIA BHD 2006 2 TRUSTEE ACT 1949 First enacted ... ... ... ... ... ... 1949 (Ordinance No. 66 of 1949); and 1965 (Act No. 36 of 1965) Revised ... ... ... ... ... ... ... 1978 (Act 208 w.e.f. 15 November 1978) PREVIOUS REPRINT First Reprint ... ... ... ... ... 2001 3 LAWS OF MALAYSIA Act 208 TRUSTEE ACT 1949 ARRANGEMENT OF SECTIONS PART I PRELIMINARY Section 1. Short title 2. Application 3. Interpretation PART II INVESTMENTS 4. Authorized investments 5. Further powers of investment of trustees 6. Duty of trustees in choosing investments 7. Statutory powers of investment 8. Purchase at premium of redeemable stocks; change of character of investments 9. Discretion of trustees 10. Power to retain investment which has ceased to be authorized 11. Investment in bearer securities 12. Loans and investments by trustees not chargeable as breaches of trust 13. Liability for loss by reason of improper investment 14. Powers supplementary to powers of investment 15. Power to deposit at bank and to pay calls 4 ACT 208 Laws of Malaysia PART III GENERAL POWERS OF TRUSTEES AND PERSONAL REPRESENTATIVES General Powers Section 16. Power of trustees for sale to sell by auction, etc. 17. Power to sell subject to depreciatory conditions 18. Power of trustees to give receipts 19. Power to compound liabilities 20. Power of trustees of renewable leaseholds to renew and raise money for the purpose 21. Power to raise money by sale, charge, etc. 22. Protection to purchasers and chargees dealing with trustees 23. Devolution of powers or trust 24. Power to insure 25. Application of insurance money where policy kept up under any trust, power or obligation 26. Deposit of documents for safe custody 27. Reversionary interests, valuations and audit 28. Power to employ agents 29. Power to concur with others 30. Power to delegate trusts during absence abroad Indemnities 31. Protection against liability in respect of rents and covenants 32. Protection by means of advertisement 33. Protection in regard to notice 34. Exoneration of trustees in respect of certain powers of attorney 35. Implied indemnity of trustees Maintenance, Advancement and Protective Trusts 36. Power to apply income for maintenance and to accumulate surplus income during a minority 37. Power of advancement 38. Protective trusts 5 Trustee PART IV APPOINTMENT AND DISCHARGE OF TRUSTEES Section 39. Limitation of the number of trustees 40. Power of appointing new or additional trustees 41. Supplemental provisions as to appointment of trustees 42. Evidence as to a vacancy in a trust 43. Retirement of trustee without a new appointment 44. Vesting of trust property in new or continuing trustees PART V POWERS OF THE COURT 45. Power of Court to appoint new trustees 46. Power to authorize remuneration 47. Powers of new trustee appointed by the Court Vesting Orders 48. Vesting orders of land 49. Orders as to contingent rights of unborn persons 50. Vesting order in place of conveyance by minor 51. Vesting order consequential on order for sale of land 52. Vesting order consequential on judgment for specific performance, etc. 53. Effect of vesting order 54. Power to appoint person to convey 55. Vesting orders as to stock and thing in action 56. Vesting orders of charity or society property 57. Vesting orders in relation to minor's beneficial interest 58. Orders made upon certain allegations to be conclusive evidence Jurisdiction to make other Order 59. Power of Court to authorize dealings with trust property 60. Persons entitled to apply for orders 61. Power to give judgment in absence of a trustee 6 ACT 208 Laws of Malaysia Section 62. Power to charge costs on trust estate 63. Power to relieve trustee from personal liability 64. Power to make beneficiary indemnity for breach of trust Payment into Court 65. Payment into Court by trustees PART VI GENERAL PROVISIONS 66. Indemnity 67. Effect of order of Court 68. Validation of certain powers of trustees 69. Repeal SCHEDULE 7 Trustee LAWS OF MALAYSIA Act 208 TRUSTEE ACT 1949 An Act relating to Trustees. [Peninsular Malaysia--31 December 1949; Sabah and Sarawak--30 June 1965] PART I PRELIMINARY Short title 1. This Act may be cited as the Trustee Act 1949. Application 2. (1) This Act, except where otherwise expressly provided, applies to trusts including, so far as this Act applies thereto, executorships and administratorships constituted or created either before or after the commencement of this Act. (2) The powers conferred by this Act on trustees are in addition to the powers conferred by the instrument, if any, creating the trust, but those powers, 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. (3) This Act does not affect the legality or validity of anything done before the commencement of this Act, except as otherwise expressly provided. 8 ACT 208 Laws of Malaysia Interpretation 3. (1) In this Act, unless the context otherwise requires-- "approved company" means a company-- (a) incorporated in Malaysia or, if incorporated prior to Malaysia Day, in Sabah or Sarawak, and having a place of business in Malaysia; (b) having as its sole or primary object the promotion of home ownership by advancing for the purchase of lands and buildings sums of money, repayable by instalments of principal and interest over a fixed period of years, not exceeding at any time the valuation of such lands and buildings made by an approved valuer; and (c) approved by the Minister by notification in the Gazette for the purpose of receiving loans from trustees in accordance with paragraph 4(1)(e); "approved valuer" means a registered or licensed surveyor or a licensed appraiser and includes any other person approved by the Minister; "authorized investments" means investments authorized by the instrument, if any, creating the trust for the investment of money subject to the trust, or by law; " c h a r g e " , "chargee" and "chargor" include "mortgage", "mortgagee" and "mortgagor" respectively, and further include and relate to every estate and interest regarded in equity as merely a security for money and every person lawfully claiming under the original chargee; "contingent right" as applied to land, includes a contingent or executory interest, a possibility coupled with an interest, whether the object of the gift or limitation of the interest or possibility is or is not ascertained, also a right of entry, whether immediate or future and whether vested or contingent; "convey" and "conveyance" as applied to any person include the execution by that person of every necessary or suitable assurance ( i n c l u d i n g an assent) for conveying, assigning, appointing, surrendering, or otherwise transferring or disposing of land whereof he is proprietor or possessed or wherein he is entitled to a contingent 9 Trustee right, either for his whole interest or for any less interest, together with the performance of all formalities required by law to the validity of the conveyance; "the Court" means the High Court in Malaya or the High Court in Sabah and Sarawak, as the case may be; "instrument" includes a written law; "land" means immovable property and includes any interest therein and also an undivided share of land; "material" date means-- (a) in respect of Peninsular Malaysia (other than Malacca and Penang), the 9th day of September 1932; (b) in respect of the States of Malacca and Penang, the 1st day of September 1929; (c) in respect of the State of Sabah (other than Labuan), the 30th day of April 1953; (d) in respect of Labuan, the 1st day of September 1929; and (e) in respect of the State of Sarawak, the 30th day of June 1965; "mentally disordered person" means any person found by due course of law to be unsound mind and incapable of managing his affairs; "pay" and "payment" as applied in relation to stocks and securities and in connection with the expression "into Court", include the deposit or transfer of the same in or into Court; "person of unsound mind" means any person, not a minor, who, not having been found to be a mentally disordered person, is incapable from infirmity of mind of managing his own affairs; "personal representative" means the executor, original or by representation, or administrator for the time being of a deceased person; "possession" includes receipt of rents and profits or the right to receive the same, if any; "income" includes rents and profits; and 10 ACT 208 Laws of Malaysia "possessed" applies to receipt of income of and to any vested interest less than a life interest in possession or in expectancy in any land; "property" includes movable and immovable property, and any interest in any property, movable or immovable, and any debt, and any thing in action, and any other right or interest, whether in possession or not; "rights" includes estates and interests; "sale" includes an exchange; "securities" includes stocks, funds and shares; and so far as relates to payments into Court has the same meaning as in the written law relating to funds in Court; and "securities payable to bearer" includes securities transferable by delivery or by delivery and endorsement; "solicitor" means advocate and solicitor in Peninsular Malaysia or advocate in Sabah or Sarawak, as the case may be; "stock" includes fully paid up shares and, so far as relates to vesting orders made by the Court under this Act, includes any fund, annuity, or security transferable in books kept by any corporation, company, association, or society, or by instrument of transfer, either alone or accompanied by other formalities, and any share or interest therein; "transfer", in relation to stock or securities, includes the execution and performance of every instrument, power of attorney, act, and thing on the part of the transferor to effect and complete the title in the transferee; "trust" does not include the duties of chargee, but with this exception the expressions "trust" and "trustee" extend to implied and constructive trusts, and to cases where the trustee has a beneficial interest in the trust property, and to the duties incidental to the office of a personal representative and "trustee", where the context admits, includes a personal representative, and "new trustee" includes an additional trustee; "trust corporation" means the Public Trustee* or a corporation