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Bahamas Numbered Acts |
PURPOSE TRUSTS ACT, 2004 |
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Arrangement of Clauses |
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Short title and commencement.
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Interpretation.
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Authorized purpose trusts.
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Allocations among purpose.
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Uncertainty.
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Authorized applicants.
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Trustees.
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Reformation cy-pres.
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Termination.
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General law regarding trusts to apply.
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Saving for ordinary trusts.
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No. 17 of 2004 |
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AN ACT TO PROVIDE FOR THE CREATION OF |
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PURPOSE TRUSTS ; |
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AND FOR CONNECTED PURPOSES |
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[Date of Assent - 17th August, 2004] |
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Enacted by The Parliament of The Bahamas. |
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1.(1)
This Act may be cited as the
Purpose Trusts Act, 2004.
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Short title and commencement. |
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(2)
This Act shall come into
operation on such day as the Minister may, by notice published in
the Gazette, appoint.
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Interpretation. |
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2.(1)
In this Act -
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"authorised applicant" means a person who is for the time being an authorised applicant for the purposes of section 6; |
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"authorised purpose trust", "authorised purpose" and "authorised purposes" have the meanings assigned by subsection (2) of section 3; |
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"charitable purpose" means an exclusively charitable purpose and "non-charitable purpose" means a purpose that is not charitable or is not exclusively charitable; |
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"Court" means the Supreme Court or a Judge thereof; "Minister" means the Minister responsible for the administration of this Act; |
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"ordinary trust" means a trust that is not an authorised purpose trust; |
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"property" means property of any kind, real or personal, movable or immovable, and includes any thing in action and any interest (including an undivided share) in any kind of property; |
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"trust instrument" means the written testamentary or other instrument by or on the terms of which a trust is settled or declared. |
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(2)
For the purposes of this Act,
"trust instrument" includes such an instrument executed before or
after the commencement of this Act
which has been amended pursuant
to the provisions of the instrument after the commencement of this
Act.
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3.(1)
A trust may be declared by
trust instrument for a non-charitable purpose, including,
exclusively or otherwise, the purpose of holding,
or investing in
shares in a company or any other assets constituting the trust
property if -
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Authorised purpose trusts. |
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(a)
the purpose is possible and
sufficiently certain to allow the trust to be carried out;
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(b)
the purpose is not contrary to
public policy or unlawful under the laws of The Bahamas;
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(c)
the trust instrument specifies
the event upon the happening of which the trust terminates and
provides for the disposition of surplus
assets of the trust upon
its termination.
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(2)
In this Act, a trust
satisfying the conditions in subsection (1) is referred to as "an
authorised purpose trust", the purpose of an
authorised purpose
trust is referred to as "an authorised purpose" and "authorised
purposes" is to be construed accordingly.
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(3)
The trust instrument may
create -
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(a)
an authorised purpose trust of
capital or income of any property; or
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(b)
discretionary trusts of, or
discretionary dispositive powers over, capital or income of any
property,
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requiring or permitting it to be disposed of for different authorised purposes, or among one or more authorised purposes and one or more individuals, corporations and charitable purposes, however identified, described or ascertained. |
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(4)
The rule against perpetuities
(also known as the rule against remoteness of vesting) shall not
apply to an authorised purpose trust.
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(5)
A trust may not be regarded as
a charitable trust, or an ordinary trust if it complies with this
Act and is specified in the trust
instrument to be an authorised
purpose trust.
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(6)
No land nor any interest in
land in The Bahamas shall be subject, directly or indirectly, to an
authorised purpose trust, but an authorised
purpose trust may lease
office premises for the purposes of its business.
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(7)
Nothing in this Act affects
the creation, termination or validity of any trust created under
any other law, but save as aforesaid,
purpose trusts which do not
comply with this Act are invalid.
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4.(1)
If the trust instrument of an
authorised purpose trust has more than one purpose, and if and so
far as a contrary intention not expressed
in the trust instrument,
and subject to the terms of that instrument, the trustees of an
authorised purpose trust shall have power
in their absolute
discretion -
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Allocation among purpose. |
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(a)
to allocate capital and income
among the different purposes of the trust; and
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(b)
to devise and determine the
methods to be used to pursue the purposes of the trust.
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(2)
If the trust instrument of an
authorised purpose trust has more than one purpose and if the trust
instrument does not allocate capital
or income among the different
purposes of the trust and the trustees do not do so, the Court may
make such allocations as in its
opinion best fulfill the intent of
the trust instrument.
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5.(1)
Subject to subsection (3), an
authorised purpose trust is not rendered void by uncertainty as to
the administration of trust.
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Uncertainty. |
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(2)
The trust instrument of an
authorised purpose trust may empower the trustee or any other
person to resolve an uncertainty as to the
administration of the
trust.
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(3)
If an uncertainty as to the
administration of an authorised purpose trust arises and either the
trust instrument does not empower
the trustee or any other person
to resolve it, or the trust instrument does, but the trustee or
other person (as the case may be)
fails to resolve it, the Court
may -
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(a)
resolve the uncertainty by
reforming the trust, by settling a plan for its administration or
in any other way which the Court deems
appropriate, in each case
which, in its opinion, best fulfill the intent of the trust
instrument in relation to that purpose, as
can be ascertained from
admissible evidence; or
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(b)
if and to the extent the intent
of the trust instrument in relation to that purpose cannot be found
from admissible evidence, declare
the trust void for that
purpose.
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6.(1)
The authorised applicants
specified in subsection (2) shall have in relation to an authorised
purpose trust -
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Authorised applicants. |
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(a)
standing to make application by
originating summons to the Court under subsection (2) of section 4,
subsection (3) of section 5 and
subsection (2) of section 8;
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(b)
the same rights as beneficiaries
of an ordinary trust to bring and prosecute for the benefit of the
trust -
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(i)
administration
proceedings,
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(ii)
proceedings for breach of
trust,
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(iii)
proceedings for the recovery of
trust property, and
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(iv)
other proceedings, against the
trustees and other persons;
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(c)
the right in any proceedings
under this section to such accounts and inquiries and such other
personal and proprietary remedies and
relief, in each case for the
benefit of the trust, as could be obtained by a beneficiary of an
ordinary trust;
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(d)
standing to make any application
to the Court for an opinion, advice or direction or otherwise in
connection with the trust;
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(e)
in connection with any
application or proceedings authorised by this section, the same
rights as a trustee of an ordinary trust to
protection and
indemnity and to make application to the Court for relief from
personal liability;
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(f)
in addition to any documents,
information or other rights specifically provided for in the trust
instrument, the right, whether or
not any litigation is
contemplated or in progress, to inspect and make copies of -
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(i)
the instruments, registers and
documents of the trust kept by the trustees pursuant to subsection
(2) of section 7;
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(ii)
all other records and documents
of the trust; and
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(iii)
opinions and legal advice of
counsel and attorneys received by the trustees in the general
administration of the trust, save those
opinions or advice received
by the trustee in his personal capacity in contemplation of a
lawsuit;
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(g)
all such other rights except
those, if any, that may be expressly excluded by the settlor in the
trust instrument in respect of a
named beneficiary, to information
and access to documents as the authorised applicant would have
under section 83 of the Trustee Act, if the authorised applicant
were a beneficiary with a vested interest under the trust;
and
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Ch. 176. |
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(h)
an indemnity against all costs
and expenses properly incurred as an authorised applicant, but the
authorised applicant is under no
duty to enforce the trust either
before or after appointment.
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(2)
Subject to subsection (3), the
following are authorised applicants in relation to an authorised
purpose trust for the purpose of subsection
(1) -
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(a)
any person appointed by or under
the trust instrument of the trust or under paragraph (b) of
subsection (4) to be an authorised applicant
for the purposes of
this section;
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(b)
the settlor of the trust, unless
the trust instrument provides otherwise;
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(c)
any other person whom the Court
declares (on an application being made for such a declaration) to
have a pecuniary or non-pecuniary
interest in advancing the purpose
or purposes of the trust such as to make it appropriate in the
opinion of the Court for that person
to make applications and take
proceedings under subsection (1) regarding the trust.
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(3)
A trustee of an authorised
purpose trust and any person or class of persons specified in the
trust instrument to be prohibited from
acting as an authorised
applicant shall not be eligible to be declared an authorised
applicant of that authorised purpose trust under
paragraph (c) of
subsection (2) or appointed an authorised person of that authorised
purpose trust under paragraph (b) of subsection
(4).
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(4)
If the Attorney-General
certifies in writing that an application or proceedings under
subsection (1) is requisite in respect of an
authorised purpose
trust and that the Attorney-General is not aware of any person
within subsection (2) who is able and willing to
pursue such an
application or proceedings then the Attorney-General -
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(a)
shall be empowered to make an
application or take proceedings for the purposes of subsection (1);
and
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(b)
may also apply to the Court for
the appointment of an authorised applicant in relation to the trust
and the Court may by order appoint
a person who is able and willing
to act as an authorised applicant for the purposes of this section
in relation to the trust and
authorise such newly authorised
applicant to charge such remuneration payable from the trust
property or its income as the Court
may think fit.
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(5)
If the Court is satisfied that
there is no such person as is specified under subsection (2) who is
able and willing to make an application
under that section and it
is impossible or impracticable to appoint a new authorised
applicant, who is willing and able to do so,
then the Court shall
declare that the trust has terminated and dispose of the surplus
assets, if any, as it deems fit unless provided
otherwise in the
trust instrument. An application for such a declaration may be made
by the Attorney General or a trustee of the
authorised purpose
trust or an authorised applicant of the authorised purpose
trust.
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(6)
The Court may make such orders
as it considers just for the payment out of the capital or income
of the trust property of all or any
costs (including but not
limited to fees, charges, disbursements and remuneration) of or
incidental to any application or proceedings
authorised by this
section that may be paid or incurred by -
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(a)
the Attorney-General;
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(b)
a trustee;
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(c)
any authorised applicant;
or
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(d)
any applicant for a declaration
under paragraph (c) of subsection (2).
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7.(1)
A trustee that administers an
authorised purpose trust for profit or reward shall be-
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Trustees. |
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(a)
a bank or trust company licensed
under the Banks and Trust Companies Regulation Act;
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Ch. 316. |
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(b)
a counsel and attorney admitted
to practise under the Legal Profession Act;
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Ch. 64. |
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(c)
an accountant registered and
licensed under the Public Accountants Act; or
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Ch. 364. |
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(d)
such other person as the Minister
may by order designate.
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(2)
The trustees that administer
an authorised purpose trust shall keep in The Bahamas-
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(a)
a copy of the trust instrument
which created or evidenced each authorised purpose trust of which
he is a trustee, copies of amending
and supplemental instruments
and all other written instruments executed pursuant to any of
them;
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(b)
a register of each such trust
specifying in respect of each trust, the name of the person who
created the trust, a summary of the
purpose or purposes of the
trust and the name and address of any authorised applicants named
as such in the trust instrument; and
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(c)
such documents as are sufficient
to show the true financial position of each such trust at the end
of the trust's financial year together
with details of all
applications of principal and income during that financial
year.
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(3)
A trustee that administers an
authorised purpose trust shall permit the Attorney General in the
exercise of his powers under subsection
(4) or (5) of section 6 of
this Act to make copies of the instruments, registers and documents
referred to in subsection (2).
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(4)
Subsections (2) and (3) do not
create an obligation to make the instruments, registers and
documents referred to in subsection (2)
available for public
inspection.
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(5)
A person who, in The Bahamas
or elsewhere, knowingly administers an authorised purpose trust
while there is a breach of subsection
(1) (apart from actions
intended to bring the trust in compliance with subsection (1) as
soon as possible and actions intended to
preserve the trust
property pending compliance with subsection (1)) is guilty of an
offence and is liable on summary conviction to
a fine not exceeding
$5,000.
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(6)
Where a trustee -
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(a)
fails to comply with any of the
provisions of subsection (2), he is guilty of an offence and is
liable on summary conviction to a
fine not exceeding $5,000;
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(b)
makes or authorizes the making of
an untrue statement in an instrument, register or document referred
to in subsection (2), he is
guilty of an offence and is liable on
summary conviction to a fine not exceeding $5,000;
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(c)
refuses to permit a person
mentioned in subsection (3) to inspect and take copies of an
instrument, register or document referred
to in subsection (2), the
trustee is guilty of an offence and is liable on summary conviction
to a fine not. exceeding $5,000 and
to a further fine of $100.00
for every day on which the refusal continues.
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(7)
In proceedings against a
trustee for an offence under paragraphs (a) and (b) of subsection
(6) it shall be a defence for him to satisfy
the Court that he took
all reasonable steps and exercised all due diligence to avoid
committing the offence. A person shall not be
entitled to rely on
this defence by reason of his reliance on information given by
another person unless he shows that it was reasonable
in all the
circumstances for him to have relied on the information, having
regard in particular to the steps which he took and which
might
reasonably have been taken, for the purpose of verifying the
information, and to whether he had any reason to disbelieve the
information.
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(8)
Where an offence under
subsections (5) and (6) committed by a body corporate is proved to
have been committed with the consent and
connivance of, or to be
attributable to willful default or gross negligence on the part of,
a director, manager, secretary or other
similar officer of the body
corporate or a person purporting to act in such a capacity, he, as
well as t=
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(9)
The body corporate, is guilty of
the offence and liable to be prosecuted and punished accordingly.
Where the affairs of the body corporate
are managed by its members,
this subsection will also apply in relation to the acts and default
of a member in connection with his
functions of management as if he
were a director of the body corporate.
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(9)
The trustees that administer
an authorised purpose trust shall have in relation to that trust
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(a)
standing to make application by
originating summons to the Court under subsection (2) of section 4,
subsection (3) of section 5, subsection
(5) of section 6 and
subsection (2) of section 8;
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(b)
standing to make any application
to the Court for an opinion, advice or direction or otherwise in
connection with the trust; and
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(c)
in connection with any
application authorised by this section, the same rights as a
trustee of an ordinary trust to protection and
indemnity and to
make application to the Court for relief from personal
liability.
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8.(1)
The trust instrument of an
authorised purpose trust may empower the trustees or any other
person to reform the trust in the event
that it becomes in whole or
in part -
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Reformation cy-pres. |
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(a)
impossible or
impracticable;
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(b)
unlawful or contrary to public
policy; or
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(c)
obsolete in that, by reason of
changed circumstances it fails to achieve the general intent of the
trust.
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(2)
If the execution of an
authorised purpose trust in accordance with its terms is or becomes
(otherwise than by the fulfillment of any
purpose) in whole or in
part -
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(a)
impossible or
impracticable;
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(b)
unlawful or contrary to public
policy; or
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(c)
obsolete in that, by reason of
changed circumstances it fails to achieve the general intent of the
trust,
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the trustees of the trust shall, and any authorised applicant may, unless the trust is reformed pursuant to its own terms ; apply to the Court to reform the trust cy-pres. |
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(3)
On such an application the
Court may reform the trust in accordance with the general intent of
its trust instrument or insofar as
the Court finds that the trust
cannot be so reformed then the Court shall declare that the trust
has terminated and dispose of the
surplus assets, if any, as it
deems fit unless provided otherwise in the trust instrument.
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9.
Upon the Court declaring under
subsection (5) of section 6 or subsection (3) of section 8 that an
authorised purpose trust has terminated
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Termination. |
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(a)
if the trust instrument provides
for further trusts to take effect subject to, or on the termination
of, the authorised purpose trust
then such further trusts shall
take effect accordingly; or
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(b)
otherwise the trust property and
its income shall be dealt with in accordance with the provisions of
the trust instrument regarding
surplus assets.
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10.
Save as otherwise provided by
this Act, the law relating to authorised purpose trusts is the same
in every respect as the law relating
to ordinary trusts from time
to time and for this purpose the law relating to ordinary trusts
includes (without limitation) the Trustee Act.
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General law regarding trusts to apply. Ch. 176. |
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11.
Nothing in this Act shall
prejudice (whether directly or by implication) the validity of any
ordinary trust.
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Saving for ordinary trusts. |
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