Trustees
Trustees Act 1893
Part II.
Various Powers and Duties of Trustees.
Appointment of New Trustees.
Power of appointing new trustees.
10.—(1) Where a trustee, either original or substituted, and whether appointed by a court or otherwise, is dead, or remains out of the United Kingdom for more than twelve 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, then the person or persons nominated for the purpose of appointing new trustees by the instrument, if any, creating the trust, or if there is no such person, or no such person able and willing to act, then the surviving or continuing trustees or trustee for the time being, or the personal representatives of the last surviving or continuing trustee, may, by writing, appoint another person or other persons to be a trustee or trustees in the place of the trustee dead, remaining out of the United Kingdom, desiring to be discharged, refusing, or being unfit or being incapable, as aforesaid.
(2) On the appointment of a new trustee for the whole or any part of trust property—
(a) the number of trustees may be increased; and
(b) a separate set of trustees 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 such separate set of trustees; or, if only one trustee was originally appointed, then one separate trustee may be so appointed for the first-mentioned part; and
(c) it shall not be 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; but, except where only one trustee was originally appointed, a trustee shall not be discharged under this section from his trust unless there will be at least two trustees to perform the trust; and
(d) any assurance or thing requisite for vesting the trust property, or any part thereof, jointly in the persons who are the trustees, shall be executed or done.
(3) Every new trustee so appointed, as well before as after all the trust property becomes by law, or by assurance, or otherwise, vested in him, shall have the same powers, authorities, and discretions, and may in all respects act, as if he had been originally appointed a trustee by the instrument, if any, creating the trust.
(4) The provisions of this section relative to a trustee who is dead include the case of a person nominated trustee in a will but dying before the testator, and those relative to a continuing trustee include a refusing or retiring trustee, if willing to act in the execution of the provisions of this section.
(5) This section applies only if and as far as a contrary intention is not expressed in the instrument, if any, creating the trust, and shall have effect subject to the terms of that instrument and to any provisions therein contained.
(6) This section applies to trusts created either before or after the commencement of this Act.
Retirement of trustee.
11.—(1) Where there are more than two trustees, if one of them 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, then the trustee desirous of being discharged shall be deemed to have retired from the trust, and shall, by the deed, be discharged therefrom under this Act, without any new trustee being appointed in his place.
(2) Any assurance or thing requisite for vesting the trust property in the continuing trustees alone shall be executed or done.
(3) This section applies only if and as far as a contrary intention is not expressed in the instrument, if any, creating the trust, and shall have effect subject to the terms of that instrument and to any provisions therein contained.
(4.) This section applies to trusts created either before or after the commencement of this Act.
Vesting of trust property in new or continuing trustees.
12.—(1) Where a deed by which a new trustee is appointed to perform any trust contains a declaration by the appointor 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 and receive any debt or other thing in action so subject, shall vest in the persons who by virtue of the deed become and are the trustees for performing the trust, that declaration shall, without any conveyance or assignment, operate to vest in those persons, as joint tenants, and for the purposes of the trust, that estate, interest, or right.
(2) Where a deed by which a retiring trustee is discharged under this Act contains such a declaration as is in this section mentioned by the retiring and continuing trustees, and by the other person, if any, empowered to appoint trustees, that declaration shall, without any conveyance or assignment, operate 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.
(3) This section does not extend to any legal estate or interest in copyhold or customary land, or to land conveyed by way of mortgage for securing money subject to the trust, or to any such share, stock, annuity, or property as is only transferable in books kept by a company or other body, or in manner directed by or under Act of Parliament.
(4) For purposes of registration of the deed in any registry, the person or persons making the declaration shall be deemed the conveying party or parties, and the conveyance shall be deemed to be made by him or them under a power conferred by this Act.
(5) This section applies only to deeds executed after the thirty-first of December one thousand eight hundred and eighty-one.
Pensions Act, 1990
Part VI Trustees of Schemes
63.
Appointment and removal of trustees by High Court
63.-[(1) The High Court (in this Part referred to as “the Court”) may, on application to it by the Board by petition, make an order-
(a) for the removal of a trustee of a scheme [or trust RAC] and the appointment of a new trustee, and
(b) that a trustee so removed shall not act as a trustee of a scheme [or trust RAC] for such period as the Court may order.]
[(2) The Court may make an order under subsection (1) in relation to the trustees of a scheme [or trust RAC], if it considers-
(a) that any of the trustees have failed to carry out any of the duties imposed on them by law (including this Act), or
(b) that the scheme [or trust RAC] is being or has been administered in such a manner as to jeopardise the rights and interests thereunder of the members of the scheme [or trust RAC].
(3)(a) A petition under this section shall be served only on the existing trustees unless the Court directs otherwise.
(b) Upon the hearing of a petition under this section, the Board, the existing trustees of the scheme [or trust RAC] concerned, the employer concerned and the members of the scheme [or trust RAC] shall be entitled to be heard unless the Court directs otherwise.
(4) A trustee of a scheme [or trust RAC] appointed under this section shall, as well before as after the resources of the scheme [ortrust RAC] become by law vested in him have the same powers, authorities and discretions and may in all respects act as if he had been originally appointed a trustee by the rules of the scheme [or trust RAC].
(5) An order under this section may make provision for such ancillary and consequential matters (including the vesting of the property of the scheme [or trust RAC] concerned in the trustees appointed by the order and (notwithstanding anything contained in the rules of the scheme [or trust RAC]) the making of payments from the resources of the scheme [or trust RAC] [or [from the employer to the trustees] appointed by the order in respect of fees, expenses or other matters relating to their duties as such trustees) as the Court considers necessary or expedient.
(6) An order under this section shall not operate further or otherwise as a discharge to any former trustee of the scheme [or trust RAC] concerned than an appointment of new trustees under any power for that purpose contained in any instrument would have operated.
(7) Where any land of which the ownership is registered under the Registration of Title Act, 1964, becomes vested, by order under this section, in any person or persons, the registering authority under that Act shall, upon production of the relevant order under this section, and upon payment of the appropriate fee, register that person or those persons in the appropriate register maintained under that Act as owner (within the meaning of that Act) of the land.
(8) Where an order is made under this section, any assets vested by the order that immediately before the commencement of the order were standing registered in the books of any bank, corporation or company or were entered in any register kept in pursuance of any enactment in the names of the former trustees of the scheme [or trust RAC] concerned shall, upon such commencement, be transferred into the names of the new trustees of the scheme [or trust RAC].
Part VI
Trustees of Schemes
63A.-(1) The Court may, on application to it by the Board, make an order on such terms and subject to such directions as to notification of relevant parties as it may think suspending a trustee of a scheme [or trust RAC] from being a trustee of the scheme [ortrust RAC] to which the application relates-
(a) pending completion of an investigation by or on behalf of the Board into the state and conduct of the scheme [or trust RAC],
(b) where proceedings have been instituted against him for an offence involving dishonesty or deception and have not been concluded,
(c) where a petition has been presented to the Court for an order adjudging him bankrupt and proceedings on the petition have not been concluded,
(d) where the trustee is a company, if a petition for the winding up of the company has been presented to the Court and proceedings on the petition have not been concluded, or
(e) where an application has been made to the Court for a disqualification order against him under Part VII of the Companies Act, 1990, and proceedings on the application have not been concluded, or
(f) where the trustee is a company and, if any director were a trustee, the Court would have power to suspend him under paragraph (b), (c) or (e).
[(2) An order under subsection (1) may apply to a particular scheme or trust RAC, a particular class of schemes or trust RACs orschemes or trust RACs in general.]
(3) An order under subsection (1) (a) shall be in force for a period not exceeding 12 months: However, on application to it by the Board, the Court may by order extend that period for a further period not exceeding 12 months.
(4) An order made under subsection (1) (other than under paragraph (a)) shall be in force until the proceedings to which the order relates are determined.
(5) Where an order is made under subsection (1) the person suspended by the order from acting as a trustee shall not, while the order is in force, exercise any functions as a trustee of a scheme [or trust RAC] to which the order applies.
[(6) An order under subsection (1) may be made on any of the grounds in paragraphs (b) to (e) of that subsection whether or not the proceedings were instituted, the petition was presented or the application was made (as the case may be)-
(a) in the case of a scheme, before or after the passing of the Pensions (Amendment) Act 1996,
(b) in the case of a trust RAC, before or after the commencement of Part 1 of Schedule 2 to the Social Welfare and Pensions Act 2007.]
(7) The Court may, on the application of any person suspended under subsection (1), by order revoke the order, either generally or in relation to a particular scheme [or trust RAC] or a particular class of schemes [or trust RACs], but a revocation made at any time cannot affect anything done before that time.
(8) An order under this section may make provision as respects the period of the trustee’s suspension for matters arising out of it and in particular for enabling any person to execute any instrument in his name or otherwise act for him and for adjusting any provisions of the scheme [or trust RAC] governing the proceedings of the trustees to take account of the reduction in the number capable of acting.
(9) Where the Court makes an order under subsection (1) it may by that order or by a further order appoint any person to be atrustee in place of, and for such period as the Court may direct not exceeding the period of suspension of, the person suspended from acting as a trustee.
(10) An order referred to in subsection (9) may make provision for such ancillary and consequential matters (including the vesting of the property of the scheme [or trust RAC] concerned in the trustees appointed by the order and (notwithstanding anything contained in the rules of the scheme [or trust RAC]) the making of payments from the resources of the scheme [or trust RAC] or from the employer to the trustees appointed by the order in respect of fees, expenses or other matters relating to their duties as such trustees) as the Court considers necessary or expedient.
(11) Where an order referred to in subsection (9) ceases to have an effect, the Court may by a further order make provision for the vesting of the property of the scheme [or trust RAC] concerned in the persons who are the trustees of the said scheme [ortrust RAC].
(12) Where any land of which the ownership is registered under the Registration of Title Act, 1964, becomes vested, by order under this section in any person or persons, the registering authority under that Act shall, upon production of the relevant order under this section, and upon payment of the appropriate fee, register that person or those persons in the appropriate register maintained under that Act as owner (within the meaning of that Act) of the land.
(13) Where an order is made under this section, any assets vested by the order that immediately before the commencement of the order were standing registered in the books of any bank, corporation or company or were entered in any register kept in pursuance of any enactment in the names of the former trustees of the scheme [or trust RAC] concerned shall, upon such commencement, be transferred into the names of the new trustees of the scheme [or trust RAC].]
Appointment and removal of trustees by Board
64.-[(1) Where in relation to a scheme [or trust RAC], there are no trustees or the trustees cannot be found, the Board may, if it considers it desirable to do so, by order under its seal-
(a) appoint a new trustee or new trustees of the scheme [or trust RAC] in substitution, where appropriate, for any existing trustee or trustees; and
(b) vest, subject where necessary to transfer in the books of any bank, corporation or company, the assets of the scheme[or trust RAC] in the persons appointed trustees of the scheme [or trust RAC] by the order.
(2) The Board shall, not later than 21 days after the date of an order under this section, publish a notice in a daily newspaper published in and circulating throughout the State giving particulars of the order.]
(3) Every trustee of a scheme [or trust RAC] appointed under this section shall, as well before as after the resources of thescheme [or trust RAC] become by law vested in him, have the same powers, authorities and discretions and may in all respects act as if he had been originally appointed a trustee by the rules of the scheme [or trust RAC].
(4)
(a) A person having an interest may, within 21 days after the publication of a notice under [subsection (2)] (or such longer period as the Court may fix, being a period that, having regard to the circumstances of any particular case, the Courtconsiders to be reasonable), appeal to the Court against the making of the order to which the notice relates.
(b) On an appeal under this subsection the Court may make such order confirming, annulling or varying the order concerned and such order as to costs as it thinks fit, but if the Court annuls or varies an order under this section that has come into operation, the annulment or variation shall be without prejudice to the validity of anything previously done thereunder.
[(c) The following shall be entitled to be represented and heard on any appeal under this section:
(i) in the case of a scheme, the Board, the trustees, the employer and the members of the scheme;
(ii) in the case of a trust RAC, the Board and the trustees and members of the trust RAC.]
(d) An order under this section shall not come into operation-
(i) during the period of 21 days from the date of the publication of the notice under [subsection (2)] in relation to the order, or
(ii) if an appeal against the order is brought during the period aforesaid, before the final determination of the appeal or any appeal from such determination [or] the withdrawal of either such appeal.
(5) An order under this section may make provision for such ancillary and consequential matters (including the vesting of the property of the scheme [or trust RAC] concerned in the trustees appointed by the order and (notwithstanding anything contained in the rules of the scheme [or trust RAC]) the making of payments from the resources of the scheme [or trust RAC] [or from the employer] to the trustees appointed by the order in respect of fees, expenses or other matters relating to their duties as such trustees) as the Board considers necessary or expedient.
(6) An order under this section shall not operate as a discharge of any liabilities of a former trustee of the scheme [or trust RAC] concerned to any greater or different extent than the appointment of new trustees under any power for that purpose contained in any instrument would have operated.
(7) Where a body corporate is appointed under this section to be, or a body corporate appointed under this section becomes, soletrustee of a scheme [or trust RAC] the terms of which provide for or require the appointment of more than one trustee, then, during such time as the body corporate holds the office of trustee of the scheme [or trust RAC] and is the only such trustee-
(a) the rules of the scheme [or trust RAC] shall be deemed to provide for or require the appointment of one trustee only, and
(b) one trustee only shall be deemed to have been originally appointed under the terms of the scheme [or trust RAC].
(8) Where any land of which the ownership is registered under the Registration of Title Act, 1964, becomes vested, by an order under this section, in any person or persons, the registering authority under that Act shall, upon production of a copy of the order sealed with the seal of the Board, and upon payment of the appropriate fee, register that person or those persons in the appropriate register maintained under that Act as owner (within the meaning of that Act) of the land.(9) Where an order is made under this section, any assets vested by the order that immediately before the commencement of the order were standing registered in the books of any bank, corporation or company or were entered in any register kept in pursuance of any enactment in the names of the former trustees of the scheme [or trust RAC] concerned shall, upon production after such commencement of a copy of the order sealed with the seal of the Board, be transferred into the names of the new trustees of the scheme [or trust RAC].
[64A.
Conflict between Part VI and schemes
64A.-(1) The provisions of this Part and of any regulations made thereunder shall override any rule of a scheme [or trust RAC] to the extent that that rule conflicts with those provisions.
(2) Any question as to-
(a) whether any provision of this Part (including the application of any provision as modified by regulations) or any regulations made thereunder conflicts with any rule of a scheme [or a trust RAC] or
(b) whether a scheme is a defined benefit scheme or a defined contribution scheme for the purposes of this Part,
[shall be determined by the Board on application to it in writing in that behalf-
(a) in the case of a scheme, by a person who, in relation to the scheme, corresponds to a person mentioned in section 38(3) in relation to the scheme mentioned therein,
(b) in the case of a trust RAC, by a person who is a member or trustee of the trust RAC.]
(3) An appeal to the High Court on a point of law from a determination of the Board under subsection (2) in relation to a scheme[or trust RAC], may be brought by the person who made, or a person who was entitled to make, the application concerned under subsection (2)] [not later than six months after the date of the determination by the Board].