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C.C.S.M. c. T160
The Trustee Act
HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows:
In this Act,
"assign" includes the execution and performance by a person of every necessary or suitable deed or act for assigning, surrendering, or otherwise transferring, land of which the person is possessed, either for the whole estate of the person so possessed or for any less estate; (« céder »)
"common trust fund" means a fund maintained by a trust corporation in which moneys belonging to various estates and trusts in its care are combined for the purpose of facilitating investments; (« caisse fiduciaire commune »)
"contingent right" as applied to land includes a contingent and executory interest, and 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, vested or contingent; (« droit éventuel »)
"convey" applied to any person, means the execution and delivery by the person of every necessary or suitable assurance for conveying or disposing to another land whereof that person is seised, or wherein he is entitled to a contingent right, either for his whole estate or for any less estate, together with the performance of all formalities required by law as to the validity of the conveyance; (« transférer »)
"court" means the Court of Queen's Bench; (« tribunal »)
"devisee" includes the heir of a devisee, and the devisee of an heir, and any person who may claim right by devolution of title; (« légataire »)
"instrument" includes a deed, a will and a written document and an Act of the Legislature and any order of the court made under section 59, but does not include any judgment or order of a court other than an order made under section 59; (« instrument »)
"investing" includes lending money; (« placement »)
"judge" means a judge of the Court of Queen's Bench; (« juge »)
"land" includes messuages, and all other hereditaments, whether corporeal or incorporeal, chattels and other personal property transmissible to heirs, money to be laid out in the purchase of land, and any share of the same hereditaments and properties, or any of them, and any estate of inheritance, or estate for any life or lives, or other estate transmissible to heirs, and any possibility, right or title of entry or action, and any other interest capable of being inherited, whether the same estates, possibilities, rights, titles and interests, or any of them, are in possession, reversion, remainder or contingency; (« bien-fonds »)
"mentally incompetent person" means a person who is not a minor and who is incapable of managing his or her affairs by reason of mental disorder, mental disability, infirmity of mind or other cause; (« personne ayant une incapacité mentale »)
"mine" includes any opening, excavation or well, in, or working of, the ground for the purpose of searching for, winning, opening up, removing, proving, or storing underground, any mineral or mineral-bearing substance; (« mine »)
"mining lease" means, subject to subsection 25(3), a lease for any mining purposes or purposes connected therewith, and includes a grant or licence for any mining purposes; (« bail minier »)
"mining purposes" includes the making, excavating or sinking of a mine and the working of a mine and searching for, winning, opening up, removing, proving, or storing underground, any mineral or mineral-bearing substance and the erection of buildings and the execution of engineering and other works suitable for those purposes; (« fins d'exploitation minière »)
"mortgage" is applicable to every estate, interest, or property in, or charge upon, land or personal estate, that is merely a security for money; and "mortgagee" has a corresponding meaning and includes every person deriving title under the original mortgagee; (« hypothèque »)
"personal estate" includes leasehold estates and other chattels real, and also money, shares of government and other funds, securities for money (not being real estate), debts, choses in action, rights, credits, goods, and all other property, except real estate, that by law devolves upon the executor or administrator, and any share or interest therein; (« biens personnels »)
"personal representative" means an executor, an administrator, and an administrator with the will annexed; (« représentant personnel »)
"possessed" is applicable to any vested estate less than a life estate, legal or equitable, in possession or in expectancy, in any land; (« en possession »)
"securities" includes stock, debentures, bonds, shares and guaranteed trust or investment certificates; (« valeurs mobilières »)
"seised" is applicable to any vested interest for life, or of a greater description, and extends to estates, legal and equitable, in possession, or in futurity, in any land; (« ensaisiné »)
"stock" includes fully paid-up shares, and any fund, annuity, or security, transferable in books kept by any incorporated bank, company, or society, or by instrument of transfer, either alone or accompanied by other formalities, and any share or interest therein; (« actions »)
"transfer", in relation to stock, includes the performance and execution of every deed, power of attorney, act or thing, on the part of the transferor to effect and complete the title in the transferee; (« transfert »)
"trust" does not mean the duties incident to an estate conveyed by way of mortgage; but, with this exception, includes implied and constructive trusts and cases where the trustee has some beneficial estate or interest in the subject of the trust, and extends to, and includes, the duties incident to the office of personal representative of a deceased person; (« fiducie »)
"trust corporation" means a body corporate with powers to act as trustee, agent, executor, administrator, receiver, liquidator, assignee, guardian of a minor's estate, committee of the estate of a mentally incompetent person or substitute decision maker for property for a vulnerable person under The Vulnerable Persons Living with a Mental Disability Act; (« corporation de fiducie »)
"trustee" includes a trustee, however appointed, and several joint trustees; (« fiduciaire »)
"will" has the same meaning as in The Wills Act. (« testament »)
APPLICATION OF ACT
Subject to section 3, this Act applies to all trusts whenever created and to all trustees whenever appointed.
The powers, rights and immunities conferred by this Act are in addition to those conferred by the instrument, if any, creating the trust; but, unless otherwise stated, in this Act or any other Act of the Legislature, they apply only if, and so far 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.
Nothing in this Act authorizes a trustee to do anything that he is in express terms forbidden to do, or to omit to do anything that he is in express terms directed to do, by the instrument creating the trust.
JURISDICTION OF THE COURT
An order under this Act for the appointment of a new trustee, or concerning any land or personal estate subject to a trust, may be made by the court upon the application of
(a) any person creating or intending to create a trust; or
(b) any person beneficially interested in a trust, whether under disability or not; or
(c) any person duly appointed a trustee.
An order concerning any land or personal estate, subject to a mortgage, may be made on the application of any person beneficially interested in the equity of redemption, whether under disability or not, or of any person interested in the moneys secured by the mortgage.
Any person entitled may apply, upon notice to such persons as he may think proper, for such an order as he may deem himself entitled to.
Upon the hearing of the application, the court may direct,
(a) a reference to inquire into any facts which require investigation; or
(b) the trial of an issue; or
(c) the application to stand over to enable further evidence to be adduced or further notice to be served.
DEVOLUTION OF POWERS OF TRUSTEES
Where a power or trust if given to, or imposed on, two or more trustees jointly, it may be exercised or performed by the survivors or survivor of them for the time being.
Until the appointment of new trustees, the personal representatives or representative for the time being of a sole trustee, or where there were two or more trustees, of the last surviving or continuing trustee, are or is capable of exercising or performing any power or trust that was given to, or capable of being exercised by, the sole or last surviving or continuing trustee, or other, the trustee or trustees for the time being of the trust.
Renouncing executor not included
In this section "personal representative" does not include an executor who has renounced or has not proved.
Executor of an executor not included
The executor of any person appointed an executor under this Act is not, by virtue of such executorship, an executor of the estate of which his testator was appointed executor under this Act, whether the person acted alone or was the last survivor of several executors.
RETIREMENT OF TRUSTEE WITHOUT NEW APPOINTMENT
Notwithstanding that a contrary intention is expressed in the instrument creating the trust, where a trustee is desirous of being discharged from the trust, and after his discharge there will be either a trust corporation, or at least two individuals to act as trustees to perform the trust, if the trustee by deed declares that he is desirous of being discharged from the trust, and if his co-trustees, and such other person, if any, as is empowered to appoint trustees, by deed consent to the discharge of the trustee, and to the vesting in the co-trustees alone of the trust property, the trustee desirous of being discharged shall be deemed to have retired from the trust, and shall, by the deed, be discharged therefrom, without any new trustee being appointed in his place.
Any assurance or thing requisite for vesting the trust property in the continuing trustee alone shall be executed or done.
This section does not apply to personal representatives.
APPOINTMENT OF NEW TRUSTEES
Where a trustee is dead, or remains out of the province for more than 12 months, or desires to be discharged from all or any of the trusts or powers reposed in or conferred on him, or refuses or is unfit to act therein, or is incapable of acting therein, or is an infant, then (subject to the restrictions imposed by this Act on the number of trustees),
(a) the person nominated for the purpose of appointing new trustees by the instrument, if any, creating the trust; or
(b) if there is no such person, or no such person able and willing to act, then the surviving or continuing trustee, for the time being, or the personal representatives of the last surviving or continuing trustee;
may, by writing, appoint a trustee in the place of the trustee so deceased, remaining out of the province, desiring to be discharged, refusing, or being unfit, or being incapable, or being an infant.
Cases when appointment may be made
For the purposes of this section,
(a) a trustee, whether a corporation or not, who has been removed under a power contained in the instrument creating the trust, shall be deemed to be a trustee desiring to be discharged from the trust; and
(b) a corporation, being a trustee, that is or has been dissolved, shall be deemed to be, and to have been, from the date of the dissolution, incapable of acting in the trusts or powers reposed in or conferred on the corporation.
Persons who may appoint trustees
The power of appointment given to the personal representatives of the last surviving or continuing trustee by this section or any similar previous enactment, shall be, and shall be deemed always to have been, exercisable by the personal representatives for the time being, without the concurrence of any executor who has renounced or has not proved; but a sole or last surviving executor intending to renounce, or all the executors where all intend to renounce, has, and shall be deemed always to have had, power, at any time before renouncing probate, to exercise the power of appointment given by this section, if willing to act for that purpose, and without thereby accepting the office of executor.
When additional trustees appointed
Where a sole trustee, other than a trust corporation, is or has been originally appointed to act in a trust, or where, in the case of any trust, there are not more than two trustees (none of them being a trust corporation), in any such case,
(a) the person or persons nominated for the purpose of appointing new trustees by the instrument, if any, creating the trust; or
(b) if there is no such person, or no such person able and willing to act, the surviving or continuing trustees or trustee for the time being;
may, by writing, appoint one or more additional trustees; but it is not obligatory to appoint any additional trustee, nor shall the number of trustees be increased beyond four by virtue of any such appointment.
Where a trustee remains out of the province for more than 12 months, or refuses, or is unfit to act in the trusts or powers reposed in or conferred on him, or is incapable of acting therein, or is an infant, he may be removed or discharged from the trust by such person or persons as are authorized under this section to appoint additional trustees, without the appointment of a new trustee in his place; but, a trustee shall not be removed or discharged from his trust without the appointment of a trustee in his place unless there will be remaining to perform the trust a trust corporation or at least two trustees (none of them being a trust corporation).
The provisions of this section relating to a trustee who is dead include the case of a person nominated trustee in a will, but dying before the testator; and those relating to a continuing trustee include a refusing or retiring trustee, if willing to act in the execution of the provisions of this section.
Where a mentally incompetent person, being a trustee, is also entitled in possession to some beneficial interest in the trust property, no appointment of a new trustee in his place shall be made by the continuing trustees or trustee, under this section, unless leave has been given by a judge of the court to make the appointment.
Nothing in this section gives power to appoint a personal representative.
APPOINTMENT OF NEW TRUSTEES BY THE COURT
The court may make an order appointing a new trustee either in substitution for, or in addition to, any existing trustee or trustees, or although there is no existing trustee,
(a) in any case where it is found inexpedient, difficult, or impracticable, so to do without the assistance of the court, in particular and without limiting the generality of the foregoing, in case of a trustee who is convicted of a crime, or is a mentally incompetent person, or is a bankrupt, or has made an authorized assignment, or is a corporation that is in liquidation or has been dissolved; or
(b) in case of a personal representative desiring to be relieved from the duties of his office, or guilty of any misconduct in his office, or who refuses or is unfit to act therein, or incapable of acting therein, or who remains out of the province for more than 12 months.
The court may, on an application under this section, make an order removing a trustee without appointing a new trustee in his place.
Order operates as an instrument
An order under this section and any consequential vesting order or conveyance, does not operate further or otherwise as a discharge to any former or continuing trustee than an appointment of a new trustee under any power for that purpose contained in an instrument would have operated.
The court may, in its discretion, and either on request or without request, give to the trustee appointed any general or special directions in regard to the trust or the administration thereof.
Any personal representative appointed under this section shall, unless the court otherwise orders, give such security as he would be required to give if letters of administration were granted to him under The Court of Queen's Bench Surrogate Practice Act.
SUPPLEMENTAL PROVISIONS AS TO APPOINTMENT OF NEW TRUSTEE
Powers of appointment of trustees
On the appointment of a trustee for the whole or any part of a trust property,
(a) the number of trustees may, subject to the restrictions imposed by this Act on the number of trustees, be increased; and
(b) a separate set of trustees, not exceeding four, may be appointed for any part of the trust property held on trusts distinct from those relating to any other part or parts of the trust property, notwithstanding that no new trustees or trustee are or is to be appointed for other parts of the trust property, and any existing trustee may be appointed or remain one of the separate set of trustees; or, if only one trustee was originally appointed, then, one separate trustee may be so appointed; and
(c) it is not obligatory to appoint more than one new trustee where only one trustee was originally appointed, or to fill up the original number of trustees where more than two trustees were originally appointed; and
(d) any assurance or thing requisite for vesting the trust property, or any part thereof, in a sole trustee, or jointly in the persons who are the trustees, shall be executed or done.
POWERS VESTED IN NEW TRUSTEES
Every trustee appointed under this Act, as well before as after all the trust property becomes by law or by assurance or otherwise vested in him, has 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.
EVIDENCE AS TO VACANCY IN TRUST
A statement, contained in any instrument coming into operation after June 30, 1931, by which a new trustee is appointed, to the effect that a trustee has remained out of the province for more than 12 months, or desires to be discharged, or refuses or is unfit to act, or is incapable of acting, or is an infant, or that he is not entitled to a beneficial interest in the trust property in possession, is, in favour of a purchaser in good faith and for valuable consideration, conclusive evidence of the matter stated.
In favour of the purchaser, any appointment of a new trustee depending on that statement, and any vesting declaration, express or implied, consequent on the appointment, is valid.
Instrument of appointment vests property
Where, by an instrument, a new trustee is appointed to perform any trust,
(a) if the instrument contains a declaration by the appointer to the effect that any estate or interest in any land subject to the trust, or in any chattel so subject, or the right to recover or receive any debt or other thing in action so subject, shall vest in the persons who by virtue of the instrument become or are the trustees for performing the trust, the instrument operates, without any conveyance or assignment, to vest in those persons, as joint tenants and for the purposes of the trust, the estate, interest, or right, to which the declaration relates; and
(b) if the instrument is made after June 30, 1931, and does not contain such a declaration, the instrument operates as if it had contained such a declaration by the appointer extending to all the estates, interests, and rights, with respect to which a declaration could have been made.
Where, by an instrument, a retiring trustee is discharged under the statutory power without a new trustee being appointed,
(a) if the instrument contains a declaration as aforesaid by the retiring and continuing trustees, and by the other person, if any, empowered to appoint trustees, the instrument, without any conveyance or assignment, operates to vest in the continuing trustees alone, as joint tenants and for the purposes of the trust, the estate, interest, or right, to which the declaration relates; and
(b) if the instrument is made after June 30, 1931, and does not contain the declaration, the instrument operates as if it had contained the declaration by such persons as aforesaid extending to all the estates, interests, and rights, with respect to which a declaration could have been made.
An express vesting declaration, whenever made, notwithstanding that the estate, interest or right to be vested is not expressly referred to, and provided that the other statutory requirements were or are complied with, operates, and shall be deemed always to have operated, 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.
Exceptions to application of section
This section does not extend
(a) to land conveyed by way of mortgage for securing money subject to the trust, except land conveyed on trust for securing debentures or debenture stock; or
(b) to land held under a lease that contains any covenant, condition, or agreement, against assignment or disposing of the land without licence or consent, unless, prior to the execution of the instrument containing, expressly or impliedly, the vesting declaration, the requisite licence or consent has been obtained, or unless, by virtue of any statute or rule of law, the vesting declaration, express or implied, would not operate as a breach of covenant or give rise to a forfeiture; or
(c) to any share, stock, annuity, or property, that is transferable only in books kept by a company or other body, or in manner directed by or under an Act of Parliament or of the Legislature.
In subsection (4) "lease" includes an under-lease and an agreement for a lease or under-lease.
For purposes of registration of the instrument, the person making the declaration, expressly or impliedly, shall be deemed the conveying party, and the conveyance shall be deemed to be made by him under a power conferred by this Act.
VESTING ORDERS AND ORDERS RELEASING CONTINGENT INTERESTS
In any of the following cases,
(a) where the court appoints or has appointed a trustee, or where a trustee has been appointed out of court under any statutory or express power; or
(b) where a trustee entitled, whether by way of mortgage or otherwise, either solely or jointly with any other person, to any land, or to stock or to a chose in action
(i) is under a disability; or
(ii) is out of the province; or
(iii) cannot be found, or, being a corporation, has been dissolved, or its charter has been surrendered, revoked or suspended; or
(iv) neglects or refuses to convey any land or interest therein, or to transfer stock or receive the dividends or income thereof, or to sue for or recover a chose in action, for 28 days next after a request in writing has been made to him by the person entitled thereto; or
(c) where it is uncertain who was the survivor of two or more trustees; or
(d) where it is uncertain whether a trustee is alive or dead; or
(e) where there is no personal representative of a deceased trustee, or where it is uncertain who is the personal representative of a deceased trustee; or
(f) where stock is standing in the name of a deceased person whose personal representative is under disability; or
(g) where for any other reason it appears to the court to be expedient;
the court may make an order (in this Act called a vesting order) vesting the land or 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 chose in action, in any such person, in any such manner, and for any such estate or interest, as the court may direct.
The provisions of this Act as to vesting orders apply to shares in ships registered under the Acts relating to merchant shipping as if they were stock.
Contingent rights of unborn persons
Where any 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, the land on any trust, the court may make an order releasing the land 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.
Vesting order in lieu of conveyance by infant
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.
On an order for sale or mortgage
Where a 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 within the meaning 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.
On judgment for specific performance
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
(a) that any of the parties to the action are trustees of any interest in the land, or any part thereof, within the meaning of this Act; or
(b) that the interests of unborn persons who might claim under any party to the action, or under the will or voluntary settlement of any deceased person who was during his lifetime a party to the contract or transaction concerning which the judgment is given, are the interests of persons who, on coming into existence, would be trustees within the meaning of this Act;
and thereupon the court may make a vesting order relating to the rights of those persons, born and unborn, as if they had been trustees.
A vesting order under any of the foregoing provisions, in the case of a vesting order consequential on the appointment of a trustee, has the same effect
(a) as if the persons who before the appointment were the trustees, if any, had duly executed all proper conveyances of the land for such estate or interest as the court directs; or
(b) if there is no such person, or no such person of full capacity, as if such person had existed and been of full capacity and had duly executed all proper conveyances of the land for such estate or interest as the court directs;
and, in every other case, has the same effect as if the trustee or other person, or description or class of persons, to whose rights or supposed rights the provisions respectively relate, had been an ascertained and existing person of full capacity, and had executed a conveyance or release to the effect intended by the order.
Where a vesting order can be made under any provision of this Act, the court may, if it is more convenient, appoint a person to make or join in making the transfer, conveyance, release, or other appropriate instrument; and any such instrument executed by that person in conformity with the order has the same effect as an order under the appropriate provision.
Where a vesting order is made under this Act or under The Mental Health Act, founded on an allegation of any of the matters mentioned in section 18 of this Act, the fact that the order has been so made is conclusive evidence of the matter so alleged in any court upon any question as to the validity of the order; but this section does not prevent the court from directing a re-conveyance or surrender or the payment of costs occasioned by any such order if improperly obtained.
Vesting order as to chose in action
Where any order has been made under this Act by the court vesting the legal right to sue for, or recover, any chose in action or any interest in respect thereof, in any person, he may carry on, commence, and prosecute, in his own name, any action or proceedings for the recovery of the chose in action in the same manner, and with the same rights, as the person in whose place he had been appointed.
TRUSTEES FOR CHARITIES
Exercise of powers for charities
The court may exercise the powers herein conferred for the purpose of vesting any land or personal estate in the trustee of any charity or society over which the court would have jurisdiction upon action duly instituted.
Where land is held by trustees for a charitable purpose, and it is made to appear that the land can be no longer advantageously used for the charitable purpose, or that for any other reason the land ought to be sold, a judge may make an order authorizing the sale thereof, and may give such directions in relation thereto, and for securing the due investment and application of the money arising from the sale, as may be deemed proper.
No such order shall be made unless and until notice of the application has been given to the Minister of Justice of Manitoba.
POWERS AND DUTIES OF TRUSTEES POWER OF SALE
Power to sell by auction, etc.
Where a trust for sale or a power of sale of land or personal estate 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 charges or not, and either together or in lots, by public auction or by private contract, subject to any such conditions respecting title or evidence of title or other matter as the 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.
Powers implied in a power to sell
A trust or power to sell or dispose of land includes, subject to subsection (3), a trust or power to
(a) sell or dispose of part thereof, whether the division is horizontal, vertical, or made in any other way;
(b) sell or dispose of any easement, right, or privilege of any kind over or in relation to the land;
(c) sell or dispose of any or all minerals in or under the land;
(d) sell or dispose of the land or any part thereof, excepting or reserving any or all minerals in or under it.
Certain transactions deemed mining leases
A transaction whereby the owner of land grants to another the right to take a mineral or mineral-bearing substance from the land in consideration of future payments, the amount of which will depend on the quantity of such mineral or substance so taken, is a mining lease and not a sale or disposition of minerals within the meaning of subsection (2).
A sale need not be made wholly for cash, but payment of all or part of the purchase price may be deferred if it is secured upon the property sold either by a mortgage thereon, which need not be a first mortgage, or by a term of the agreement for sale that title shall not vest in, or be transferred to, the purchaser until the price has been paid in full.
Trustees position under subsec. (4)
Where a trustee takes a mortgage or enters into an agreement for sale pursuant to subsection (4), the trustee shall be deemed to have exercised the judgment and care that a man of prudence, discretion and intelligence would exercise in administering the property of others.
Sale subject to depreciatory condition
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, 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, is at liberty to make any objection against the title upon any of the grounds aforesaid.
Leases by trustee under power of sale
Where a trust for sale or a power of sale of land is vested in a trustee, he may at any time grant leases of the land, or of any part thereof, or of any easement, right, or privilege of any kind over or in relation to the land, including mining leases, for any term, and for any purpose, whether involving waste or not.
A trustee in whom no trust for sale or power of sale is vested may grant leases, other than mining leases, of any land subject to the trust for a term which does not exceed three years from the date on which the lease is made.
Any premium or down payment, other than rent in advance, paid by a lessee under a lease granted under this section is, for the purposes of the trust, capital and not income.
Disposal of rent under mining leases
Unless a contrary intention is expressed in the trust instrument, under a mining lease granted under this section, whether the mines or minerals leased are already opened or in work or not, there shall be from time to time set aside as capital money of the trust one-fourth part of the rent received; and the residue of the rent shall be applied as ordinary rents and profits of the land.
Grant of options under trust for sale
Where a trust for sale or a power of sale of land is vested in a trustee, he may at any time, either with or without consideration, grant by an instrument an option to purchase or take any authorized lease of the land or any easement, right, or privilege over or in relation to the land, at a price or rent which is either fixed at the time of the granting of the option, or can be effectually ascertained at the time of the exercise of the option by a method which is set forth in the instrument granting the option.
Option to purchase reversion under a lease
Where an option granted under subsection (1) is contained in a lease, and is an option to purchase the reversion expectant on the term thereby granted, the option may be made exercisable at any time during the term of the lease.
Where an option granted under subsection (1), is contained in a lease, and is an option to renew the lease for a further term or terms, the option may be made exercisable at any time during the original term or during the term of a previous renewal.
Any option granted under subsection (1), other than an option of the types mentioned in subsection (2) and (3), shall be made exercisable within a specific period not exceeding two years from the date of the grant thereof.
The consideration for the grant of an option shall be deemed to be capital of the trust.
Power of trustee during infancy of beneficiary
Subject to any prior interest or charges affecting the property where property is held by a trustee in trust for a person for any interest whatsoever, whether vested or contingent,
(a) during the infancy of that person, if his interest so long continues, the trustee may, at his sole discretion, apply for or towards his maintenance, education, or benefit, the whole or such part, if any, of the income of that property as may, in all the circumstances, be reasonable, whether or not there is
(i) any other fund applicable to the same period, or
(ii) any person bound by the law to provide for his maintenance or education; and
(b) if that person, on attaining the age of 18 years, has not a vested interest in the income, the trustee shall thereafter pay to him the income of that property and of any accretion thereto under subsection (4), until he either attains a vested interest therein or dies, or until failure of his interest.
In deciding whether the whole or any part of the income of the property is, during a minority, to be applied for the purposes stated in clause (1)(a), the trustee shall have regard to
(a) the age of the infant;
(b) his requirements; and
(c) generally to the circumstances of the case, and in particular to what other income, if any, is applicable for the same purposes.
Where a trustee has notice that the income of more than one fund is applicable for the purposes stated in clause (1)(a), unless the entire income of the funds is applied for those purposes or the court otherwise directs, a proportionate part only of the income of each fund shall, so far as practicable, be so applied.
Investment and application of residue
During the infancy of a person mentioned in subsection (1), if his interest so long continues, the trustee shall accumulate all the residue of that income in the way of compound interest by investing it and the resulting income therefrom in authorized investments; 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.
Disposal of accumulations on vesting of trust funds
Where a person mentioned in subsection (1)
(a) attains the age of 18 years, and his interest in the income during his infancy is a vested interest; or
(b) on attaining the age of 18 years becomes entitled to the property from which the income arose in fee simple, absolute or determinable, or absolutely, or for an entailed interest;
the trustee shall pay over or transfer the accumulations to that person absolutely, subject however to any provision with respect thereto contained in any settlement by him made under any statutory powers during his infancy.
Where subsec. (5) does not apply
In any case to which subsection (5) does not apply, the trustee shall, notwithstanding that the person had a vested interest in the income, hold the accumulations as an accretion to the capital of the property from which the accumulations arose, and as one fund with the capital for all purposes.
Application to contingent interests
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 loco parentis to, the legatee, if and for such period as, under the general law, the legacy carries interest for the maintenance of the legatee.
In any case to which subsection (7) applies, the rate of interest shall, if the income available is sufficient, and subject to any rules of court to the contrary, be 5% per year.
Application to vested annuities
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 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.
This section does not apply where the instrument, if any, under which the interest arises came into operation before the coming into force of this section.
Power of court re: application of capital
Subject to subsection (3), the court has jurisdiction, on application at any time, by order to empower and direct a trustee to pay or apply any capital money subject to a trust in such manner as the court may, in its discretion, think fit for the maintenance, education, advancement, or benefit 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.
Power where interest may be defeated
An order under subsection (1) may be made notwithstanding that the interest of the 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 an order is made under subsection (1),
(a) the moneys ordered to be so paid or applied, if paid and applied for a purpose other than the maintenance or education of any person, shall not exceed altogether in amount 1/2 of the presumptive or vested share or interest of that person in the trust property; and
(b) if that person is or becomes absolutely and indefeasibly entitled to a share in the trust property, the money so paid or applied shall be brought into account as part of the share; and
(c) no such order shall be made so as to prejudice any person entitled to any prior interest, whether vested or contingent, unless the person is in existence, and of full age, and consents in writing to the order being made.
Where the trust property consists of land or any interest therein, the trustee may raise any money required for the purposes of this section by a sale thereof or by mortgaging or otherwise charging the land or interest.
Payment to parent in alternative
A trustee who is, by this or any other Act or by the trust instrument, empowered to apply any money for the purpose of the maintenance, education, or benefit of an infant may, instead of so applying it, pay it to the parent or guardian of the infant to be used for that purpose, without seeing to the application thereof.
Payment of liabilities from capital
Subject as hereinafter provided, in any case where the income and capital of the residuary estate of a deceased person are, or may become, payable to different persons or applicable for different purposes, and the will of the deceased person does not clearly direct some other method of payment thereof, the personal representative shall, for the purpose of adjusting the respective rights of the beneficiaries who are interested in the income of the residuary estate, and those who are interested in the capital thereof, treat the liabilities of the deceased, namely,
(a) his debts, including all interest accrued thereon at the date of his death;
(b) the funeral and testamentary expenses;
(c) the pecuniary legacies bequeathed by the will; and
(d) the duties and taxes payable out of the estate by reason of the death of the deceased;
as being payable out of the capital of the estate, and shall treat all interest that accrues on such debts, expenses, legacies, duties, and taxes after the date of death as payable out of the income of the estate.
Notwithstanding subsection (1), on the application of any beneficiary of the estate, or of the personal representative, the court, if it is of the opinion that it would work a substantial injustice to any beneficiary to administer the estate in accordance with subsection (1), may order that the estate be administered in accordance with the rules of equity that would otherwise be applicable for that purpose.
Nothing in this section affects the rights of any person other than the beneficiaries interested in the residuary estate, or requires a personal representative, in discharging the liabilities of the estate, to resort to the assets of the estate in any particular order or method.
Power to postpone sale or conversion
Unless a contrary intention is expressed in the will or other trust instrument, if any, a trustee in whom a trust for sale or conversion, or a power of sale or conversion, of property is vested may postpone the sale or conversion of the whole or any part of the property subject to the trust for such period as is reasonable in the circumstances; and he may retain the property, or any part thereof, in the form in which it is invested.
Certain limitations not applicable
The powers granted under subsection (1) may be exercised by a trustee notwithstanding that the property subject to the trust, or any part thereof, is of a kind in which he is not authorized to invest, or is of a hazardous or speculative nature or does not produce income.
A trustee exercising any of the powers granted under subsection (1) is not answerable for any loss incurred thereby while acting in good faith.
Nothing in this section authorizes the postponement of the distribution of any property beyond the time at which it becomes distributable to, or among, the beneficiaries.
POWERS OF MARRIED WOMAN AS TRUSTEE
A married woman who is a trustee alone or jointly with any other person or persons of property subject to any trust, may sue or be sued, and may transfer or join in transferring any such property, without her husband, as if she were a femme sole.
EMPLOYMENT OF AGENTS
Trustees may, instead of acting personally, employ and pay an agent, whether a solicitor, banker, stock broker, 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 testator's or intestate's estate, including the receipt and payment of money, and are entitled to be allowed and paid all charges and expenses so incurred, and are not responsible for the default of any such agent if employed in good faith.
Power of agents outside Manitoba
Trustees may appoint any person to act as their agent or attorney for the purpose of selling, converting, collecting, getting in, and executing and perfecting insurances of, or managing or cultivating, or otherwise administering, any property, real or personal, movable or immovable, subject to the trust or forming part of the testator's or intestate's estate, in any place outside the province, or executing or exercising any discretion or trust or power vested in them in relation to any such property, with such ancillary powers, and with and subject to such provisions and restrictions as they may think fit, including a power to appoint substitutes, and are not, by reason only of their having made the appointment, responsible for any loss arising thereby.
Deed endorsed with receipt authorizes agent
Where a trustee permits a solicitor to have the custody of, and to produce, a deed having in the body thereof, or endorsed thereon, a receipt for such money or valuable consideration or property, the deed being executed, or the endorsed receipt being signed, by the person entitled to give a receipt for that consideration, he shall be deemed thereby to have appointed him his agent to receive and give a discharge for any money or valuable consideration or property receivable by the trustee under the trust.
A trustee is not chargeable with breach of trust by reason only of his having made or concurred in making any such appointment; and the production of any such deed by the solicitor has the same statutory validity and effect as if the person appointing the solicitor had not been a trustee.
Agent with receipted insurance policy
A trustee may appoint a banker or solicitor to be his agent to receive, and give a discharge for, any money payable to the trustee under or by virtue of a policy of insurance, by permitting the banker or solicitor to have the custody of, and to produce, the policy of insurance with a receipt signed by the trustee; and a trustee is not chargeable with a breach of trust by reason only of his having made, or concurred in making, the appointment.
The deed or policy of assurance and receipt is a sufficient authority to the person liable to pay or give the money for his paying or giving the money to the agent so appointed without the agent producing any separate or other direction or authority in that behalf from the trustee; but nothing in this subsection exempts a trustee from any liability that 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 banker or solicitor for a period longer than is reasonably necessary to enable the banker or solicitor, as the case may be, to pay or transfer it to the trustee.
Subsection (6) applies whether the money or valuable consideration or property was or is received before or after the commencement of this Act.
APPOINTMENT OF ATTORNEY BY TRUSTEE INTENDING TO BE ABSENT
Delegation of powers during absence
A trustee intending to remain out of the province for a period exceeding one month may, notwithstanding any rule of law or equity to the contrary, by power of attorney, delegate to any person (including a trust corporation) the execution or exercise during his absence from the province of all or any trusts, powers, and discretions, vested in him as the trustee, either alone or jointly with any other person or persons; but a person being the only other co-trustee, and not being a trust corporation, shall not be appointed to be an attorney under this subsection.
The donor of a power of attorney given under this section is liable for the acts or defaults of the donee in the same manner as if they were the acts or defaults of the donor.
The power of attorney does not come into operation unless the donor is out of the province, and is revoked by his return.
The power of attorney shall be attested by at least one witness, and shall be filed in the land titles office of each land titles district in which the trust property or any part thereof is situated within 10 days after the execution thereof, with a statutory declaration by the donor that he intends to remain out of the province for a period exceeding one month from the date of the declaration, or from a date therein mentioned.
The execution of any such instrument shall be verified in such manner as is required by statute in the case of instruments to be registered under The Registry Act.
The statutory declaration aforesaid, and a statutory declaration by the donee of the power of attorney that the power has come into operation and has not been revoked by the return of the donor, is conclusive evidence of the facts stated in favour of any person dealing with the donee.
Persons without notice protected
In favour of any person dealing with the donee, any act done or instrument executed by the donee is, notwithstanding that the power has never come into operation or has become revoked by the act of the donor or by his death or otherwise, as valid and effectual as if the donor were alive and of full capacity, and had himself done the act or executed the instrument, unless the person had actual notice that the power had never come into operation or of the revocation of the power before the act was done or instrument executed.
For the purpose of executing or exercising the trusts or powers delegated to him, the donee may exercise any of the powers conferred on the donor as trustee by statute or by the instrument creating the trust, including power to delegate to an attorney power to transfer any inscribed stock, but not including the power of delegation conferred by this section.
Notice of trust does not affect certain persons
The fact that it appears from any power of attorney given under this section, or from any evidence required for the purposes of any such power of attorney or otherwise, that in dealing with any stock the donee of the power is acting in the execution of a trust shall not be deemed for any purpose to affect any person in whose books the stock is inscribed or registered with any notice of the trust.
A trustee may insure against loss or damage any insurable property to any amount not exceeding the full value of the property, and pay the premiums for the insurance out of the income thereof 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 the income.
But not property to be conveyed
This section does not apply to any building or property which a trustee is bound forthwith to convey absolutely to any beneficiary upon being requested to do so.
RENEWAL OF LEASES
A trustee of any leaseholds for lives or years that are renewable from time to time may, if he thinks fit, and shall, if thereto required by any person having any beneficial interest, present or future or contingent, in the leaseholds, use his best endeavours to obtain, from time to time, a renewed lease of the same land on reasonable terms; and, for that purpose, he may from time to time make, or concur in making, a surrender of the lease for the time being subsisting, and do all such other acts as are requisite; but where, by the terms of the settlement or will, the person in possession for his life or other limited interest is entitled to enjoy it without any obligation to renew or to contribute to the expense of renewal, this section does not apply unless the consent in writing of that person is obtained to the renewal on the part of the trustee.
Where money is required to pay for the renewal, the trustee effecting the renewal may pay it out of any money then in his hands in trust for the persons beneficially interested in the land to be comprised in the renewed lease; and, if he has not in his hands sufficient money for the purpose, he may raise the money required by mortgage of the land to be comprised in the renewed lease, or of any other land for the time being subject to the uses or trusts to which that land is subject; and no person advancing money upon a mortgage purporting to be made under this power is bound to see that the money is wanted, or that no more is raised than is wanted for the purpose or to see to the due application of the money.
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 (or the payment, transfer or delivery to him thereof) is a sufficient discharge to the person paying, transferring, or delivering it, and effectually exonerates him from seeing to the application, or being answerable for any loss or misapplication, thereof.
POWER TO COMPROMISE DEBTS
A personal representative, or two or more trustees acting together or a sole acting trustee, where, by the instrument, if any, creating the trust, a sole trustee is authorized to execute the trusts and powers thereof, may, if and as he or they may think fit, accept any property, real or personal, before the time at which it is made transferable and payable, or sever and apportion any blended trust fund or property, or accept any composition or any security, real or personal for any debt or for any property, real or personal claimed, and may allow any time for payment for any debt, and may compromise, compound, abandon, submit to arbitration or otherwise settle any debt, account, claim or thing whatever relating to the testator's or intestate's estate, or to the trust; and for any of those purposes may enter into, give, execute, and do, such agreements, instruments of composition or arrangement, releases, and other things as to him or them seem expedient, without being responsible for any loss occasioned by any act or thing done by him or them in good faith.
DISTRIBUTION OF ESTATE AFTER NOTICE
Distribution of estate on notice to creditors
Where a trustee or assignee acting under the trusts of a deed or assignment for the benefit of the creditors generally, or of a particular class or classes of creditors, where the creditors are not designated by name therein, or a personal representative, has given like notices as, in the opinion of the court in which he is sought to be charged, would have been directed to be given by the court in an action for the execution of the trusts of the deed or assignment, or in an administration suit, requiring creditors and others to send in to him their claims against the person for the benefit of whose creditors the deed or assignment is made or against the estate of the testator or intestate, as the case may be, at the expiration of the time named in the notices, or the last of the notices, he may distribute the proceeds of the trust estate, or the assets of the testator or intestate, as the case may be, or any part thereof, among the persons entitled thereto, having regard to the claims of which he has then notice, and is not liable for the proceeds of the trust estate, or assets, or any part thereof, so distributed to any person of whose claims he had not notice at the time of distribution.
Nothing in this section prejudices the right of any creditor or claimant to follow the proceeds of the trust estate, or assets, or any part thereof, into the hands of persons who have received them.
Subsection (1) does not apply to heirs, next-of-kin, devisees or legatees claiming as such.
Mortgagees or unpaid vendors within section
This section applies to creditors who claim as mortgagees or unpaid vendors of land, or those claiming through or under them by virtue of covenants to pay contained in any mortgage or agreement for sale of land; but nothing in this Act prejudices the right of any such mortgagee or vendor or any one claiming through or under him to pursue his remedies against the land mortgaged or sold, as the case may be.
The notice referred to in this section is, as to the form and contents thereof, notwithstanding anything hereinbefore contained, sufficient if in the following form or to the like effect, namely:
In the matter of the estate of . All claims against the above estate must be sent to the undersigned at (fill in place where notices of claims are to be sent) on or before the day of , 19 .
Dated at in Manitoba, this day of , 19 .
Executor (or other capacity as the case may be).
The notice shall in all cases be published in one issue of The Manitoba Gazette and in one issue of a newspaper published or circulating in the district where the donor of the trust or debtor making the assignment resided, or in case of a deceased's estate, the deceased was domiciled.
Claim not affected by Limitation of Actions Act
Where the claim of any person against the estate of a deceased person verified by affidavit, is filed, prior to the date upon which the claim would be barred by The Limitation of Actions Act, with the executor or administrator of the estate or, where no executor or administrator has been appointed, in the office of the Registrar of the court, that Act does not affect the claim.
When claim of deceased person not barred
Where the claim of any person against any other person would be barred by The Limitation of Actions Act, at any time within three months after the death of the person having the claim, the claim shall for all purposes be deemed not to be barred until three months after the date of death.
POWERS AND DUTIES OF PERSONAL REPRESENTATIVES POWER OF ADMINISTRATOR WITH WILL ANNEXED
Administrator with will annexed same power as executor
An administrator with the will annexed or an executor to whom probate is granted has all the power conferred by the testator upon the executor or executors named in his will and may, in all respects, act as effectually as though he had been named by the testator as his sole executor.
EXECUTION OF POWERS
Where there is in a will a direction, express or implied, to sell, dispose of, appoint, mortgage, encumber, or lease, any land, and no person is by the will or otherwise by the testator appointed to execute and carry it into effect, the executor, if any, named in the will may execute and carry into effect every such direction in respect of the land, and any estate or interest therein in the same manner, and with the same effect, as if he had been appointed by the testator for that purpose.
Administrator with will annexed may sell
Where, from any cause, a court of competent jurisdiction has committed to a person, who has given security to the satisfaction of the court for his dealing with the land and its proceeds, letters of administration with a will annexed which contains an express or implied power to sell, dispose of, appoint, mortgage, encumber, or lease, any land, whether the power is conferred on an executor named in the will or the testator has not by the will or otherwise appointed a person to execute it, the administrator may exercise the power in respect of the land in the same manner, and with the same effect, as if he had been appointed by the testator for that purpose.
CONTRACT OF DECEASED
Conveyance by personal representative pursuant to contract
Where any person has entered into a contract in writing for the sale and conveyance of land, and the person has died intestate, or without providing by will for the conveyance of the land to the person entitled, or to become entitled, to such a conveyance, if the deceased would be bound, were he alive, to execute a conveyance, his personal representative shall make and give to the person entitled to it a good and sufficient conveyance of the land, of such nature as the deceased, if living, would be liable to give, but without covenants, except as against the acts of the grantor; and the conveyance is as valid and effectual as if the deceased were alive at the time of the making thereof, and had executed it, but does not have any further validity or effect.
ADMINISTRATOR'S POWER TO MORTGAGE
Power of administrator to mortgage
An administrator in whom the land of an intestate person is or becomes vested under any law of the province, with the approval of a judge, may mortgage the land for the purpose of paying debts, taxes or other encumbrances or of raising money to pay for any necessary and proper repairs or improvements to any such land; and may, without that approval, release equities of redemption; but nothing herein prevents a beneficiary from taking proceedings to restrain the administrator from mortgaging on the ground that the mortgage is unnecessary, or not in his interest.
POWER OF SURVIVING SPOUSE TO CARRY ON OPERATIONS
Where a farmer or the sole proprietor of an unincorporated business dies intestate, and the surviving spouse wishes to carry on the farming operation or business for the benefit of himself or herself and any infant children with capital belonging to himself or herself and them, the administrator may permit the surviving spouse to do so for as long as the administrator deems advisable, and the administrator is not responsible for losses incurred in the farming operation or business while it is so carried on.
A surviving spouse who carries on a farm operation or business in accordance with subsection (1) shall
(a) in due course, make good to the infant children and their representatives any losses which he or she incurs in carrying on the operation or business; and
(b) account to the administrator for the profits of the operation or business, less a reasonable allowance for the services of the spouse in carrying on the operation or business and for the cost of maintaining and educating the children while so doing.
RESIDUE OF ESTATE
Where a person dies having by will appointed an executor, the executor, in respect of any residue not expressly disposed of, shall be deemed to be a trustee for the person, if any, who would be entitled to the estate under The Intestate Succession Act in case of an intestacy, unless it appears by the will that the executor was intended to take the residue beneficially.
Nothing in this section prejudices any right in respect of any residue not expressly disposed of to which, if this Act had not been passed, an executor would have been entitled where there is not any person who would be entitled to the testator's estate under The Intestate Succession Act in case of an intestacy.
RESPECTING DEBTS AGAINST ESTATE
Protection against liability of rents and covenants
Where a personal representative or trustee liable as such for
(a) any rent, covenant, or agreement, reserved by or contained in any lease; or
(b) any rent, covenant, or agreement, payable under or contained in any grant made in consideration of a rent charge; or
(c) any indemnity given in respect of any rent, covenant, or agreement, referred to in either of the foregoing clauses,
satisfies all liabilities under the lease or grant that may have accrued, or 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 that the lessee or grantee agreed to lay out on the property demised or granted, although the period for laying it out may not have arrived, then and in any such case the personal representative or trustee may convey the property demised or granted to a purchaser, legatee, devisee, or other person entitled to call for a conveyance thereof, and thereafter
(d) he may distribute the residuary real and personal estate of the deceased testator or intestate or, as the case may be, the trust estate (other than the fund, if any, set apart as aforesaid) to or among the persons entitled thereto, without appropriating any part, or any further part, as the case may be, of the estate of the deceased or of the trust estate to meet any future liability under the lease or grant;
(e) notwithstanding such a distribution, he is not personally liable in respect of any such subsequent claim under the lease or grant.
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 assets of the deceased or the trust property into the hands of the persons among whom they or it may have been respectively distributed, and applies notwithstanding anything to the contrary in the instrument, if any, creating the trust.
Definitions of "lease", "grant", "lessee", "grantee"
In this section "lease" includes an under-lease and an agreement for a lease or under-lease 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 instruments giving any indemnity as aforesaid or varying the liabilities under the grant; and "lessee" and "grantee" include persons respectively deriving title under them.
Property over which a deceased person had a general power of appointment, which he might have exercised for his own benefit without the assent of any other person, is assets for the payment of his debts where the same is appointed by his will; and, under an execution against the personal representative of the deceased person, the assets may be seized and sold after the deceased person's own property has been exhausted.
A personal representative may pay or allow any debt or claim on any evidence that he thinks sufficient.
Proceedings on notice of disputing claim
Where the personal representative gives notice in writing to any creditor or other person of whose claim against the estate he has notice, or to the agent of the creditor or other person, that he rejects or disputes the claim, the claimant shall commence his action in respect of the claim within six months after the written notice was given, if the debt or some part thereof was due at the time of the notice, or within six months from the time the debt or some part thereof falls due if no part thereof was then due, and shall serve the first proceeding in the action within one month thereafter; and in default the claim is forever barred.
PAYMENT OF DEBTS AND LEGACIES
Power to raise money to pay charge
Where, by a will a testator charges his land, or any specific part thereof, with the payment of his debts or with the payment of a legacy or other specific sum of money, and devises the land so charged to his executors or to a trustee without any express provision for the raising of the debt, legacy, or sum of money, out of the land, the devisee may raise the debt, legacy, or money, by a sale of the land or any part thereof, or by a mortgage thereof.
The powers conferred by this section extends to every person in whom the land devised is for the time being vested by survivorship, descent, or devise, and to any person appointed under any power in the will or by the court to succeed to the trusteeship vested in the devisee in trust.
Where a testator who creates such a charge does not devise the land so charged in such terms that his whole estate and interest therein become vested in a trustee, the executor for the time being named in the will, if any, has the like power of raising money as is hereinbefore conferred upon the devisee; and the power from time to time devolves upon, and becomes vested in, the person in whom the executorship is for the time being vested.
Any sale or mortgage under this section operates only on the estate and interest of the testator.
Purchasers or mortgagees are not bound to inquire whether the powers conferred by this section, or any of them, have been duly and correctly exercised by the person acting in virtue thereof.
This section does not extend to a devise to any person in fee or in tail, or for the testator's whole estate and interest charged with debts or legacies, or affect the power of any such devisee to sell or mortgage.
ACTIONS BY AND AGAINST PERSONAL REPRESENTATIVES
Actions by and against legal representatives
All actions and causes of action in tort, whether to person or property, other than for defamation, malicious prosecution, false imprisonment, or false arrest, in or against any person dying continue in or against his personal representative as if the representative were the deceased in life; but in any action brought or continued under authority of this section by the personal representative of a deceased person for a tort causing the death of the person, the damages recoverable for the benefit of his estate do not include any exemplary damages or damages for loss of expectation of life and shall be calculated without reference to any loss or gain to his estate consequent on his death, except that a sum in respect of funeral expenses may be included.
No action shall be commenced under authority of this section after the expiration of two years from the death of the deceased.
Claim for loss of guidance not continued
Where a person dies and he was a person for whose benefit an action has been or may be brought under The Fatal Accidents Act for damages for loss of guidance, care and companionship, that action or cause of action for damages for loss of guidance, care or companionship does not continue in his personal representation or survive for the benefit of his estate under subsection (1) or under any other Act of the Legislature or rule of law.
All causes of action under this section, and every judgment or order thereon or relating to the costs thereof, are and form assets or liabilities as the case may be of the estate of the deceased.
The rights conferred by this Act are in addition to, and not in derogation of, any rights conferred on the dependants of deceased persons by The Fatal Accidents Act.
A personal representative has such an action of account as the testator or intestate might have had if he had lived.
Executors of executors have the same actions for the debts and property of the first testator as he would have had if in life; and are answerable for such of the debts and property of the first testator as they recover, as the first executors would be if they had recovered them.
The personal representative of any person who, as executor or as executor in his own right or as administrator, wastes or converts to his own use any part of the estate of any deceased person, is liable and chargeable in the same manner as his testator or intestate would have been if he had been living.
Every personal representative, as respects the additional powers vested in him by this Act, and any money or assets by him received in consequence of the exercise of those powers, is subject to all the liabilities, and compellable to discharge all the duties that, as respects the acts to be done by him under the powers, would have been imposed upon a person appointed by the testator, or would have been imposed by law upon any person appointed by law, or by any court of competent jurisdiction to execute the powers.
SPECIAL POWERS OF COURT
DEALINGS WITH TRUST PROPERTY
Orders as to dealing with property
Where, in the management or administration of any property vested in trustees, any sale, lease, mortgage, surrender, release, or other disposition, or any purchase, investment, acquisition, expenditure, or other transaction, or any modification or variation of the trust or investments is in the opinion of the court expedient, but it cannot be effected by reason of the absence of any power for that purpose vested in the trustees by the trust instrument, if any, or by law, the court may by order confer upon the trustees, 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 authorized to be expended, and the costs of any transaction, are to be paid or borne as between capital and income.
The court may 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.
Nothing in this section affects the powers and authority of the court under section 59.
VARIATION OF TRUSTS
In this section, "person" includes charitable and non-charitable purposes.
Restriction on variation of trust
Subject to any trust terms reserving a power to any person to revoke, or in any way vary the trust, a trust arising before, on or after October 1, 1983, whatever the nature of the property involved and whether arising by will, deed or other disposition, shall not be varied or terminated before the expiry of the period of its natural duration as determined by the terms of the trust except with the approval of the court.
Application of section to particular problems
Without limiting the generality of subsection (2), the prohibition contained in subsection (2) and the requirement for the approval of the court for the purposes of subsection (2), apply to
(a) any provision of a trust under which the transfer or payment of the capital or of the income, including rents and profits,
(i) is required to be postponed until the attainment by a person of a stated age, or
(ii) is required to be postponed until a stated date or time or the passage of a stated period of time, or
(iii) is required to be made by instalments, or
(iv) is subject to a discretion to be exercised during any period by the trustee, as to the person to whom the capital or income, including rents and profits, may or shall be transferred or paid, or as to the time at which or the manner in which the payment or transfer of capital or income, including rents and profits, may or shall be made; and
(b) any variation or termination of the trust
(i) by merger, however occurring, with another trust, or
(ii) by consent of all persons who are beneficially interested, or
(iii) by renunciation of any person's beneficial interest by that person so as to cause an acceleration of remainder or reversionary interests.
The approval of the court required under subsection (2) shall be given by means of an order approving a proposed arrangement for
(a) the variation or termination of the whole or any part of the trust; or
(b) the resettling of any interest under the trust; or
(c) the merger of the trust with another trust; or
(d) the enlargement of the powers of the trustee to manage or administer any of the property subject to the trust.
Court may consent on behalf of beneficiary
In approving any proposed arrangement in respect of a trust, the court may consent to the arrangement
(a) on behalf of any person who has, directly or indirectly, an interest, whether vested or contingent, under the trust and who, by reason of minority or other incapacity, is incapable of consenting; or
(b) on behalf of any person, whether ascertained or not, who may become entitled, directly or indirectly, to an interest under the trust, as being, at a future date or on the happening of a future event, a person of any specified description or a member of any specified class of persons; or
(c) on behalf of any person who is unborn; or
(d) on behalf of any person who is missing and whose whereabouts are unknown to the trustee, to the other persons beneficially interested and to the settlor, if the settlor is alive and available; or
(e) on behalf of any person in respect of an interest of that person which may arise by reason of any discretionary power given to anyone on the failure or determination of any existing interest that has not failed or determined; or
(f) on behalf of a corporation or association where there is no person able or empowered to consent on behalf of the corporation or association; or
(g) where the benefits under the trust are to be used, directly or indirectly, for a specified purpose, and there is no person who is able or empowered to consent on behalf of all those persons, whether born or unborn and whether ascertained or not, who might derive some benefit from benefits used for that purpose, on behalf of all those persons; or
(h) where the benefits under the trust are directed to be administered under another specified trust, and there is no person who is able or empowered to consent on behalf of all those persons whether born or unborn and whether ascertained or not who have or might have a beneficial interest under that other trust, on behalf of all those persons.
Before a proposed arrangement is approved by the court, it must have the consent in writing of all persons who are beneficially interested under the trust and who are capable of consenting thereto.
The court shall not approve a proposed arrangement in respect of a trust unless it is satisfied
(a) that the carrying out of the arrangement appears to be for the benefit of each person on whose behalf the court may consent under subsection (5); and
(b) that in all the circumstances at the time of the application to the court, the arrangement appears otherwise to be of a justifiable character.
Meaning of "benefit" in cl. (7)(a)
For the purposes of clause (7)(a), without limiting the generality of the word "benefit", an arrangement in respect of a trust is for the benefit of a person
(a) if it would enhance the financial, social, moral or family wellbeing of that person; or
(b) where the person on whose behalf the court is being asked to consent to the arrangement, is a corporation or association, if it would advance or further the purposes of the corporation or association; or
(c) where the persons on whose behalf the court is being asked to consent to the arrangement are persons who might derive some benefit from benefits used for a specified purpose, if it would advance or further that purpose.
Restriction on exercise of power of appointment
Where an instrument creates a general power of appointment exercisable by deed, the donee of the power may not appoint to that donee unless the instrument shows an intention that the donee may so appoint.
Arrangement for holding under trust during incapacity
Where a will or other testamentary instrument contains no trust, but the court is satisfied that, having regard to the circumstances and the terms of the gift or devise, it would be for the benefit of a person who is a minor or otherwise incapacitated that the court approve a proposed arrangement whereby the property or interest taken by that person under the will or testamentary instrument will be held in trust during the period of minority or other incapacity, the court may, under this section, approve the arrangement.
Where under this section the court approves an arrangement in respect of a trust, the arrangement takes effect on the date of the order unless some other date for arrangement to take effect is set out in the order.
Nothing in this section affects the powers and authority of the court under section 58.
CONVEYANCE OF LANDS SOLD FOR DEBTS
Conveyance by infants under court order to pay debts
Where an action or proceeding is instituted in any court for the payment of any debts of any person deceased to which the estate may be subject or liable, and the court orders the estate liable to these debts, or any of them, to be sold or mortgaged for satisfaction of the debts, and, by reason of the infancy of any heir or devisee, an immediate conveyance thereof cannot be compelled, the court shall direct, and if necessary compel the infant to convey the estate so to be sold, or mortgaged, by all proper assurances to the purchaser, or mortgagee thereof, and in such manner as the court deems proper and direct, and every such infant shall make the conveyance or mortgage, accordingly.
Every such conveyance, or mortgage, is as valid and effectual as if the infant were, at the time of executing it, of the full age of 18 years.
The surplus money from the sale or mortgage descends in the same manner as the estate so sold or mortgaged would have done.
Persons with life estates to convey to pay debts
Where land is devised in settlement by any person whose estate is by law liable to the payment of any of his debts, and by the devise is vested in any person for life, or other limited interest, with any remainder, limitation, or gift over, which may not be vested, or may be vested in some person from whom a conveyance or other assurance thereof cannot be obtained, or by way of an executory devise, and an order is made for the sale thereof for the payment of the debts, or any of them, the court may direct the tenant for life, or other person having a limited interest, or the first executory devisee thereof, to convey, release, assign, surrender, or otherwise assure, the fee simple, or other the whole interest so to be sold, to the purchaser, or in such manner as the court may deem proper; and every such conveyance, release, surrender, assignment, or other assurance, is as effectual as if the person who makes and executes it were seised or possessed of the fee simple, or other whole estate so to be sold.
The court may order the costs of and incidental to any application, order, direction, conveyance, assignment, or transfer, under this Act, or any part thereof, to be paid or raised out of the property in respect of which it is made, or out of the income thereof, or to be borne and paid in such manner and by such persons as the court may deem proper.
DEFICIENCY OF ASSETS
On the administration of the estate of a deceased person, in the case of a deficiency of assets, debts due to the Crown and to the personal representative of the deceased person, and debts to others, including therein debts by judgment or order, and other debts of record, debts by specialty, simple contract debts, and such claims for damages as are payable in like order of administration as simple contract debts, shall be paid pari passu and without any preference or priority of debts of one rank or nature over those of another; but nothing herein prejudices any lien existing during the lifetime of the debtor on any of his property.
Where a personal representative pays more to a creditor or claimant than the amount to which he is entitled under subsection (1), the overpayment does not entitle any other creditor or claimant to recover more than the amount to which he would be entitled if the overpayment had not been made.
Relief from personal liability
Where a personal representative pays more to a creditor or claimant than the amount to which he is entitled under subsection (1), the court may relieve the personal representative either wholly or partly from personal liability if it is satisfied that he has acted honestly and reasonably and for the protection or conservation of the assets of the estate.
On the administration of the estate of a deceased person, in case of a deficiency of assets, every creditor in proving his claim shall state whether he holds any security for his claim or any part thereof, and shall give full particulars of the security; and, if the security is on the estate of the deceased debtor or on the estate of a third person for whom the estate of the deceased debtor is only indirectly or secondarily liable, the creditor shall put a specified value on the security, and the personal representative under the authority of the other creditors of the estate of the deceased, or of the court, if the estate is being then administered under the direction of or by a court, may either consent to the creditor's ranking for the claim, after deducting the valuation, or may require from the creditor an assignment of the security at an advance of ten per cent upon the specified value to be paid out of the estate as soon as the personal representative has realized the security, in which he is bound to the exercise of ordinary diligence; and in either case the difference between the value at which the security is retained or taken, as the case may be, and the amount of the claim of the creditor is the amount for which he shall rank upon the estate of the deceased debtor.
Claim based on negotiable instrument
Where the claim of the creditor is based upon a negotiable instrument upon which the estate of the deceased debtor is only indirectly or secondarily liable, and which is not mature or exigible, the creditor shall be considered to hold security within the meaning of this section, and shall put a value on the liability of the person primarily liable thereon, as his security for the payment thereof; but after the maturity of the liability and its non-payment, he is entitled to amend and re-value his claim.
A creditor holding any such security on the estate of a deceased debtor or on the estate of a third person for whom the estate of such debtor is only indirectly or secondarily liable, may release or deliver up the security to the personal representative, or he may, by statutory declaration delivered to the personal representative, set a value upon the security; and, from the time he has so released or delivered up the security or valued it, the debt to which the security applied shall be considered as an unsecured debt of the estate, or as being secured only to the extent of the value set upon the security; and the creditor may rank as, and exercise all the rights of, an ordinary creditor for the amount of his claim, or to the extent only of so much thereof as exceeds the value set upon the security, as the case may be.
Where a person claiming to be entitled to rank on the estate holds security for his claim, or any part thereof, of such a nature that he is required by this Act to value it, and he fails to value it, the judge of the court that granted the probate or letters of administration may, upon summary application by the personal representative, of which application three days' notice shall be given to the claimant, order that, unless a specified value be placed on the security and notified in writing to the personal representative within a time to be limited by the order, the claimant shall, in respect of the claim, or the part thereof for which the security is held, be wholly barred of any right to share in the proceeds of the estate.
Where a specified value is not placed on the security and notified in writing to the personal representative according to the exigency of the order, or within such further time as the judge may allow, the claim or the part thereof, as the case may be, is wholly barred as against the estate.
Where an estate is being administered by or under the direction of the court, the court shall exercise the jurisdiction conferred by this section upon the judge making the grant.
In any action or proceeding against a personal representative of the estate of a deceased person for the recovery of a claim for debt or damages payable by the deceased in his lifetime, the personal representative may, in addition to any other defence, plead The Trustee Act and that there is a deficiency of assets to pay all lawful claims against the estate in full; and if it should appear to the satisfaction of the court that the assets of the deceased in the hands of the personal representative to be administered are or may be insufficient to pay all lawful claims against the estate in full in due course of administration, or that the assets cannot be readily sold or turned into money without serious loss to the estate, or that the estate can be more efficiently or economically administered by the personal representative, judgment may be pronounced for the plaintiff against the personal representative for the amount at which his claim has been proved, if anything, with a direction that all further proceedings except the taxation of costs if any awarded be stayed until further order.
It is not obligatory on the court to pronounce or make a judgment or order, for the administration of any trust or of the estate of any deceased person, if the question between the parties can be properly determined without such a judgment or order.
Authority of trustee to invest
Subject to any express provision of the law or of the will or other instrument creating the trust or defining the duties and powers of the trustee, and subject to subsection (2), a trustee may invest in any kind of property, real, personal or mixed.
Subject to any express provision of the will or other instrument creating the trust, in investing money for the benefit of another person, a trustee shall exercise the judgment and care that a person of prudence, discretion and intelligence would exercise in administering the property of others.
Where a conditional or preferential right to subscribe for any securities in any corporation is offered to trustees in respect of any holding in the corporation, they may, as to all or any of the securities,
(a) exercise the right and apply capital money subject to the trust in payment of the consideration; or
(b) renounce the right; or
(c) assign for the best consideration that can be reasonably obtained the benefit of the right or the title thereto to any person, including a beneficiary under the trust;
without being responsible for any loss occasioned by any act or thing so done by them in good faith, but the consideration for any such assignment shall be held as capital money of the trust.
The powers conferred by this section are exercisable subject to the consent of any person whose consent to a change of investment is required by law or by the instrument, if any, creating the trust.
A trustee may, pending the investment of any trust money, deposit the trust money, during such time as is reasonable under the circumstances,
(a) in any bank; or
(b) in any trust company, loan company or credit union that is a member institution as defined in the Canada Deposit Insurance Corporation Act (Canada).
Where a trustee (other than a trust company registered and entitled to transact business as a trust company in Manitoba) deposits trust moneys under subsection (1), the trustee shall open and keep a separate account in the name of the trustee in the bank or other depository for each trust for which moneys so deposited are held.
Investment to be in trustee's name
Except in the case of a security that cannot be registered, trustees (other than trust companies registered and entitled to transact business as trust companies in Manitoba) who invest in securities shall require the securities to be registered in their names as the trustees for the particular trust for which the securities are held and the securities may be transferred only on the books of the security issuer or registrar in the names of the trustees as trustees for that trust estate.
The powers of trustees to invest conferred by this Act are in addition to the powers conferred by the instrument, if any, creating the trust.
Nothing in this Act relating to trustee investments
(a) authorizes a trustee to do anything that the trustee is in express terms forbidden to do, or to omit to do anything that the trustee is in express terms directed to do, by the trust instrument creating the trust; or
(b) prevents a trustee from doing anything that the trustee is specifically directed to do by the instrument creating the trust.
Changing investments by trustee
A trustee, in his discretion, may
(a) call in any trust funds invested in securities and invest them in other securities; and
(b) vary any investment by selling the securities in which the investment is made and investing the proceeds in other securities.
No trustee is liable for any breach of trust by reason only of continuing to hold an investment that since the acquisition thereof by the trustee has ceased to be an investment authorized by the instrument creating the trust or has ceased to be an investment in which a trustee, exercising the judgment and care that a person of prudence, discretion and intelligence would exercise in administering the property of others, would invest trust moneys.
Where a trustee has advanced more trust money on a mortgage than a trustee, exercising the judgment and care that a person of prudence, discretion and intelligence would exercise in administering the property of others, would advance on that mortgage, the security shall be deemed to be an authorized investment for any smaller amount that a trustee exercising that degree of judgment and care would have advanced on that mortgage, and the trustee is only liable to make good that portion of the amount actually advanced in excess of that smaller amount with interest.
A trustee holding securities of a corporation in which the trustee has properly invested the trust funds may concur in any compromise, scheme or arrangement
(a) for the reconstruction or re-organization of the corporation; or
(b) for the winding-up or sale or distribution of the assets of the corporation; or
(c) for the sale of all or any part of the property and undertaking of the corporation to another corporation; or
(d) for the amalgamation of the corporation with another corporation; or
(e) for the release, modification, or variation of any rights, privileges, or liabilities attached to the securities or any of them; or
(i) all or a majority of the shares, stock, bonds, debentures, and other securities of the corporation, or of any class thereof, are to be exchanged for shares, stock, bonds, debentures, or other securities of another corporation, and
(ii) the trustee is to accept the shares, stock, bonds, debentures or other securities of the other corporation allotted to the trustee pursuant to the compromise, scheme or arrangement;
in like manner as if the trustee were entitled to the securities beneficially, and may accept any securities of any denomination or description of the reconstructed or purchasing or new or other corporation in lieu of, or in exchange for, all or any of the original securities, if the new securities are securities in which a trustee, exercising the judgment and care that a person of prudence, discretion and intelligence would exercise in administering the property of others, would invest trust moneys.
A trustee is not responsible for the loss occasioned by any act or thing done in good faith under subsection (1).
Retention of securities acquired under subsec. (1)
Where a trustee has, in good faith, done any act or thing authorized under subsection (1), if securities accepted by the trustee under the compromise, scheme or arrangement are securities in which a trustee, exercising the judgment and care that a person of prudence, discretion and intelligence would exercise in administering the property of others, would invest trust moneys, the trustee may retain the securities for any period for which the trustee could have properly retained the original securities.
Nothing in this Act relieves a trustee of the duty
(a) to take reasonable and proper care with respect to investments authorized under this Act or by the instrument creating the trust and with respect to any other transaction authorized under this Act; or
(b) not to make any investment of trust money that, although an investment in which a trustee, exercising the judgment and care that a person of prudence, discretion and intelligence would exercise in administering the property of others, would make, is under any law in force in the province, an unlawful investment of trust money.
COMMON TRUST FUNDS
In this section,
"interested person" means a person who has a financial interest in a common trust fund, and includes the member of the Executive Council charged by the Lieutenant Governor in Council with the administration of this Act and the member of the Executive Council charged by the Lieutenant Governor in Council with administration of Part XXIV (Trust and Loan Corporations) of The Corporations Act; (« intéressé »)
"trust corporation" means a trust corporation authorized to carry on business as such within the province. (« corporation de fiducie »)
Notwithstanding this or any other Act of the Legislature, a trust corporation that has capacity to do so may, unless the trust instrument otherwise directs, invest trust moneys in one or more common trust funds of the trust corporation and where trust money is held by the trust corporation as a co-trustee, the investment thereof in a common trust fund may be made by the trust corporation with the consent of its co-trustees whether the co-trustees are individuals or corporations.
Subject to the regulations, a trust corporation may enter into an agreement with a trustee, other than another trust corporation, for the inclusion of any trust funds held by that trustee in a common trust fund of the trust corporation.
The Lieutenant Governor in Council may make regulations with respect to
(a) the establishment, operation and termination of common trust funds;
(b) the investment of moneys in common trust funds;
(c) the auditing of common trust funds;
(d) the form in which accounts are to be filed in court for the purpose of passing accounts under this section;
(e) the service and publication of a notice under subsection (8); and
(f) information to be served with a notice under subsection (8).
A trust corporation may at any time file and pass accounts in the court relating to its dealings with respect to a common trust fund and, subject to this section, the court has the same duties and powers in respect of the accounts as it has in respect of the accounts of an executor.
Interested person may apply to court
On the application of an interested person, the court may, subject to subsection (5.2), order a trust corporation to pass accounts in the court relating to its dealings with respect to a common trust fund, and where the court so orders it has, subject to this section, the same powers and duties in respect of the accounts as it has in respect of the accounts of an executor.
Limit on frequency of passing accounts
A trust corporation shall not be required to pass accounts under subsection (5.1) more often than once in each 36 months.
[Repealed] S.M. 1992, c. 29, s. 22.
Accounting only required under this section
Notwithstanding any other Act of the Legislature, a trust corporation is not required to render an account of its dealings with a common trust fund except as provided in this section or the regulations.
Notice of time and place for passing accounts
Where accounts are filed in the court under this section, the court shall fix a date, time and place for the passing of the accounts, and the trust corporation filing the accounts shall, at least 14 days before the fixed date,
(a) serve, in accordance with the regulations, a notice of the date, time and place, together with such other information as is prescribed by regulation, on such persons as the court directs; and
(b) publish the notice in accordance with the regulations.
For the purposes of any passing of an account under this section, an account may be filed in the form prescribed in the regulations and shall be accompanied by the certificate of a qualified auditor certifying as to all matters prescribed in the regulations.
Appearance and expenses of interested person
An interested person has the right to appear in court personally or to be represented by counsel at the passing of accounts under this section, and the court may order any expenses incurred by an interested person in respect of the passing of accounts to be charged against the income of the common trust fund or, where the available income is less than the amount of the expenses, to be charged in whole or in part against the principal of the common trust fund.
Accounts approved by the court under this section are, except with respect to any mistake or fraud shown in the accounts, binding and conclusive upon all interested persons as to all matters shown in the accounts and as to the administration of the common trust fund by the trust corporation for the period covered by the accounts.
Costs to be charged to common trust fund
The costs incurred by a trust corporation in respect of passing accounts under this section shall be charged against the income of the common trust fund and, where the available income is less than the amount of the costs, the court may order the excess amount to be charged against the principal of the common trust fund in accordance with the direction of the court.
PROTECTION AND INDEMNITY
Act protects anything done under it
This Act, and every order purporting to be made under it, is a complete indemnity to all persons for any acts done pursuant thereto; and it is not necessary for any person to inquire concerning the propriety of the order, or whether the court by which it was made had jurisdiction to make it.
A trustee is chargeable only for money and securities actually received by him, notwithstanding his signing any receipt for the sake of conformity, and is answerable and accountable only for his own acts, receipts, neglects, or defaults, and not for those of any other trustee, nor for any banker, broker, or other person with whom any trust moneys or securities may be deposited, nor for the insufficiency or deficiency of any securities, nor for any other loss, unless it happens through his own wilful default; and may reimburse himself, or pay or discharge out of the trust property, all expenses incurred in or about the execution of the trusts or powers.
Defence based on investment policy
In an action against a trustee for failing to exercise, in respect of a particular investment, the judgment and care that a person of prudence, discretion and intelligence would exercise in administering the property of others, the trustee is not liable for loss arising from that particular investment if he satisfies the court
(a) that the investment was made as the result of a general policy of investing the funds making up the trust property; and
(b) that the general policy was not speculative and was a policy which a person of prudence, discretion and intelligence would follow if he were administering the property of others.
Subject to any express provision in the instrument creating the trust, a trustee who uses a non-financial criterion to formulate an investment policy or to make an investment decision does not thereby commit a breach of trust if, in relation to the investment policy or investment decision, the trustee exercises the judgment and care that a person of prudence, discretion and intelligence would exercise in administering the property of others.
BREACH AT INSTIGATION OF BENEFICIARY
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, 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.
TECHNICAL BREACHES OF TRUST
Court may relieve if bona fides shown
Where, in any proceeding affecting a trustee or trust property, it appears to the court that a trustee (or that any person who may be held to be fiduciarily responsible as a trustee) is or may be personally liable for any breach of trust (whenever the transaction alleged or found to be a breach of trust occurred) 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, the court may relieve the trustee either wholly or partly from personal liability for it.
Protection against invalid grant
All persons making or permitting to be made any payment or transfer in good faith upon any probate or letters of administration granted by the court in respect of the estate of the deceased, shall be indemnified and protected in so doing, notwithstanding any defect or circumstance affecting the validity of the probate or letters of administration.
EFFECT OF REVOCATION OF AN ERRONEOUS GRANT
Validity of acts before revocation
Where the court has admitted a will to probate, or has appointed an administrator, notwithstanding that the grant of probate or the appointment may be subsequently revoked as having been erroneously made, all acts done under the authority of the probate, or appointment, including all payments made in good faith to or by the personal representative, are as valid and effectual as if it had been rightly granted or made; but upon revocation of the probate or appointment, in cases of an erroneous presumption of death, the supposed decedent, and in other cases the new personal representative may, subject to subsections (2) and (3), recover from the person who acted under the revoked grant or appointment any part of the estate remaining in his hands undistributed, and, subject to any statutory limitation, from any person who erroneously received any part of the estate as a devisee, legatee, or one of the next-of-kin, or as a spouse of the decedent or supposed decedent, the part so received or the value thereof.
Interpretation: "statutory limitation"
For certainty, subsection 9(2) of The Presumption of Death and Declaration of Absence Act is a "statutory limitation", as that term is used in subsection (1).
The person acting under the revoked probate or appointment may retain out of any part of the estate remaining in his hands undistributed his proper costs and expenses incurred in the administration.
Nothing in this section protects any person acting as personal representative where he has been party or privy to any fraud whereby the grant or appointment has been obtained, or after he has become aware of any fact by reason of which revocation thereof is ordered unless, in the latter case, he acts in pursuance of a contract for valuable consideration and otherwise binding made before he became aware of the fact.
SUMMARY APPLICATION TO COURT FOR ADVICE
A trustee, guardian, or personal representative, may, without the institution of an action, apply to the court in the manner prescribed by rules of court, for the opinion, advice, or direction, of the court on any question respecting the management or administration of the trust property or the assets of his ward or his testator or intestate.
The trustee, guardian, or personal representative, acting upon the opinion, advice, or direction, given shall be deemed, so far as regards his own responsibility, to have discharged his duty as a trustee, guardian, or personal representative, in the subject matter of the application, unless he has been guilty of some fraud, wilful concealment, or misrepresentation, in obtaining the opinion, advice or direction.
Trustees may, in their absolute discretion, from time to time, but not more than once in every three years unless the nature of the trust or any special dealings with the trust property make a more frequent exercise of the right reasonable or unless the consent provided for by subsection 87(7) is obtained, cause the accounts of the trust property to be examined or audited by an independent accountant, and shall, for that purpose, produce such vouchers, and give such information to him, as he may require; and the costs of the examination or audit, including the fee of the auditor, shall be paid out of the capital or income of the trust property, or partly in one way and partly in the other, as the trustees, in their absolute discretion, think fit; but, in default of any direction by the trustees to the contrary in any special case, costs attributable to capital shall be borne by capital and those attributable to income by income.
PASSING OF ACCOUNTS
A trustee desiring to pass the accounts of his dealings with the trust estate may, from time to time, but not oftener than once in each year, file his accounts in the office of the court and the proceedings and practice upon the passing of those accounts shall be the same, and have the like effect, as the passing of personal representatives' accounts in the court; but in the case of trustees under a will, the accounts shall be filed and passed in the office of the court by which probate of the will was granted.
Judge and court may pass accounts
A judge of the court, or the Registrar or master of the court, to whom the matter may be referred, may from time to time take and pass accounts of a trustee although the trust estate is not before the court in any suit.
The persons interested in the trust estate or some or one of them may, from time to time, but not oftener than once in each year, apply to a judge in chambers upon motion, without any action being instituted or preliminary proceedings taken, for an order that the trustee do bring in and pass his accounts in connection with the trust estate.
Notice of the motion shall be given as provided in subsection (4) upon all persons interested in the trust estate other than the applicant or applicants.
It is sufficient notice to all persons interested in the trust estate if the notice of motion is served upon such persons, and in such manner, as a judge in chambers may direct, at least 10 days before the day named for hearing the application.
The judge may abridge the notice in any case where he deems it reasonable.
Where infants are interested in the trust estate, or where any person including infants or unborn persons might claim an interest in the trust estate, the Public Guardian and Trustee shall be served on their behalf, and they are bound by any order made in the proceedings.
Where accounts are lengthy or involved the trustee may, with the consent of a judge of the court, or master or Registrar, as the case may be, to be obtained on due notice to the persons interested in the trust estate, render and file a summarized statement of his receipts and disbursements, prepared and certified by a chartered professional accountant authorized to provide public accounting services in accordance with The Chartered Professional Accountants Act, in lieu of a statement thereof in detail.
Selection of accountant by court
Where the parties do not agree upon a person to act as such chartered professional accountant, the judge, master, or Registrar, may select one and insert his name in the consent.
The rules of court relating to evidence on motions are applicable to proceedings hereunder.
An appeal lies from the order on the taking and passing of the accounts in the same manner, and subject to the same rules, as are provided for appeals from a judge in chambers or master where the taking and passing of the accounts is referred to the Registrar or master as aforesaid.
The order on the taking and passing of accounts is binding upon all persons interested in the trust estate and upon all persons claiming under them.
S.M. 2013, c. 46, s. 46; S.M. 2015, c. 5, s. 127.
Power of court to order accounts
In any action or proceeding for the administration or execution of trusts by a creditor or beneficiary under a will, intestacy, or instrument of trust, where no accounts, or insufficient accounts, have been rendered, the court may, in addition to any powers already existing,
(a) order that the personal representative or trustee shall render to the plaintiff, or applicant a proper statement of his accounts, with an intimation that if it is not done, he may be made to pay the costs of the proceedings, and the court may direct the action or proceeding to be stayed or to stand over in the meantime, as may seem just;
(b) when necessary to prevent proceedings by other creditors or by beneficiaries, make the usual judgment for administration, with a provision that no proceedings are to be taken thereunder, without the leave of the court.
PAYMENT INTO COURT
Trustees, or the majority of trustees, having in their hands or under their control money or securities belonging to a trust, may pay the same into court.
The receipt or certificate of the proper officer is a sufficient discharge to trustees for the money or securities so paid into court.
Where money or securities are vested in any persons as trustees, and the majority are desirous of paying the money or securities into court, but the concurrence of the other or others cannot be obtained, the court may order the payment into court to be made by the majority without the concurrence of the other or others.
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 into court.
Every transfer, payment, and delivery, made in pursuance of any such order is valid and takes effect as if it 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.
Money paid into court is subject to the order of the court.
ALLOWANCES TO TRUSTEES AND PERSONAL REPRESENTATIVES
A trustee, guardian, or personal representative is entitled to such fair and reasonable allowance for his care, pains, and trouble, and his time expended in and about the estate, as may from time to time be allowed by a judge of the court or by any master or referee to whom the matter may be referred.
The amount of the compensation may be settled, although the estate is not before the court in an action.
The judge of a Surrogate Court, in passing the accounts of a trustee or of a personal representative or guardian may from time to time allow to him a fair and reasonable allowance for his care, pains, and trouble, and his time expended in or about the estate.
Where a barrister or solicitor is a trustee, guardian, or personal representative, and has rendered necessary professional services to the estate, regard may be had in making the allowance to such circumstance; and the allowance shall be increased by such amount as may be deemed fair and reasonable in respect of the services.
Any agreement, instrument or document executed by a testator or any person on his behalf fixing the amount of compensation or allowance that may be paid to a trustee, guardian or personal representative with respect to the administration of the estate of the testator, is not valid unless it is approved by a judge.
CHARITABLE AND NON-CHARITABLE TRUSTS
Charitable trusts not affected by invalid non-charitable trusts
Where property is, by any instrument, left in trust or by outright gift for a charitable purpose that is not void for any cause, and that is linked conjunctively or disjunctively in the instrument with a non-charitable purpose, and the non-charitable purpose is void for any cause, the charitable trust or gift is valid and operates solely for the benefit of the charitable purpose.
Effect of valid charitable and non-charitable trusts
Where property is, by any instrument, left in trust or by outright gift for a charitable purpose that is not void for any cause, and that is linked conjunctively or disjunctively in the instrument with a non-charitable purpose, and the non-charitable purpose is not void, the trust or gift is valid for both purposes, and, where the instrument has not divided the property among the charitable and the non-charitable purposes, the trustee shall divide the property among the charitable and the non-charitable purposes according to his discretion.