Public Trustee Act


Published: 1971-04-01

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Public Trustee Act
PUBLIC TRUSTEE [CH.177 – 1


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[Original Service 2001] STATUTE LAW OF THE BAHAMAS

PUBLIC TRUSTEE
CHAPTER 177

PUBLIC TRUSTEE

ARRANGEMENT OF SECTIONS

SECTION

1. Short title.
2. Interpretation.
3. Office of Public Trustee.
4. Appointment of Public Trustee.
5. General powers and duties of Public Trustee.
6. Administration of small estates.
7. Custodian trustee.
8. Appointment of Public Trustee to be trustee, executor, etc.
9. Power as to granting probate.
10. Investigation and audit of trust accounts.
11. Liability of Consolidated Fund.
12. Fees charged by Public Trustee.
13. Expenses.
14. Appeal to the court.
15. Mode of action of Public Trustee.
16. Rules.


PUBLIC TRUSTEE [CH.177 – 3


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CHAPTER 177

PUBLIC TRUSTEE
An Act to provide for the appointment of a Public

Trustee and for matters connected therewith.
[Assent 2nd April, 1970]

[Commencement 1st April, 1971]
1. This Act may be cited as the Public Trustee Act.
2. In this Act, unless the context otherwise requires —
“court” means the Supreme Court;
“expenses” includes costs and charges;
“letters of administration” means letters of adminis-

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

“Minister” means the Minister responsible for Law
Courts;

“private trustee” means a trustee other than the
Public Trustee;

“rules” means rules made under this Act;
“rules of court” means rules made by the Rules

Committee of the court under section 76 of the
Supreme Court Act;

“section” means a section of this Act;
“settlement” means a settlement created by any deed,

will, agreement for a settlement or other agree-
ment, Act or other instrument or any number of
instruments under or by virtue of which instru-
ment or instruments any land is for the time
being —
(a) held on trust for any person by way of

succession;
(b) held on trust for any person —

(i) being an infant for an estate in fee
simple or for a term of years; or

6 of 1970
E.L.A.O., 1974

Short title.

Interpretation.

E.L.A.O., 1974.

Ch. 53.

CH.177 – 4] PUBLIC TRUSTEE





STATUTE LAW OF THE BAHAMAS [Original Service 2001]

(ii) in fee simple or for any other interest
contingently on the happening of an
event;

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

“trust property” includes all property in the posses-
sion or under the control wholly or partly of the
Public Trustee by virtue of any trust;

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

3. (1) There shall be and is hereby established the
office of Public Trustee, and that office shall be a public
office.

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

4. The Governor-General, acting in accordance
with the advice of the Public Service Commission, may
appoint a fit and proper person to be Public Trustee and
may in like manner appoint a deputy or deputies to assist
him, and every deputy so appointed shall be a public
officer and, subject to the control of the Public Trustee, be
competent to discharge any of the duties and exercise any
of the powers of the Public Trustee and when discharging
such duties or exercising such powers shall have the same
privileges and be subject to the same liabilities as the
Public Trustee.

5. (1) Subject to and in accordance with the provi-
sions of this Act and of any rules, the Public Trustee may,
if he thinks fit —

(a) act in the administration of estates of small
value;

(b) act as custodian trustee;
(c) act as an ordinary trustee;
(d) be appointed a trustee by the court.
(2) Subject to the provisions of this Act and to any

rules, the Public Trustee may act either alone or jointly
with any person or body of persons in any capacity to


Ch. 176.

Office of Public
Trustee.

Appointment of
Public Trustee.
E.L.A.O., 1974.

General powers
and duties of
Public Trustee.

PUBLIC TRUSTEE [CH.177 – 5


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which he may be appointed in pursuance of this Act, and
shall have all the same powers, duties and liabilities, and be
entitled to the same rights and immunities and be subject
to the control and orders of the court, as a private trustee
acting in the same capacity.

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

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

6. (1) Any person who, in the opinion of the Public
Trustee, would be entitled to apply to the court for an order
for the administration by the court of an estate of a
deceased person the gross capital value whereof is proved
to the satisfaction of the Public Trustee to be, at the time of
such application, less than ten thousand dollars, may apply
to the Public Trustee to administer the estate, and where
any such application is made and it appears to the Public
Trustee that the persons beneficially entitled are persons of
small means, the Public Trustee shall administer the estate
unless he sees good reason for refusing to do so.

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

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

Administration
of small estates.

Ch. 176.

CH.177 – 6] PUBLIC TRUSTEE





STATUTE LAW OF THE BAHAMAS [Original Service 2001]

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

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

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

7. (1) Subject to any rules, the Public Trustee may, if
he consents to act as such, and whether or not the number of
trustees has been reduced below the original number, be
appointed to be custodian trustee of any trust —

(a) by order of the court made on the application of
any person on whose application the court may
order the appointment of a new trustee; or

(b) by the testator, settlor or other creator of any
trust; or

(c) by the person having power to appoint new
trustees.

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

(a) the trust property shall be transferred to the
custodian trustee as if he were sole trustee, and
for that purpose vesting orders may, where
necessary, be made under the Trustee Act;

(b) the management of the trust property and the
exercise of any power or discretion exerciseable
by the trustees under the trust shall remain


Custodian
trustee.

Ch. 176.

PUBLIC TRUSTEE [CH.177 – 7


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vested in the trustees other than the custodian trustee
(which trustees are hereinafter referred to as the managing
trustees);

(c) as between the custodian trustee and the mana-
ging trustees, and subject and without prejudice
to the rights of any other persons, the custodian
trustee shall have the custody of all securities
and documents of title relating to the trust
property, but the managing trustees shall have
free access thereto and be entitled to take copies
thereof or extracts therefrom;

(d) the custodian trustee shall concur in and perform
all acts necessary to enable the managing trustees
to exercise their powers of management or any
other power or discretion vested in them
(including the power to pay money or securities
into court), unless the matter in which he is
requested to concur is a breach of trust, or
involves a personal liability upon him in respect
of calls or otherwise; but, unless he so concurs,
the custodian trustee shall not be liable for any
act or default on the part of the managing
trustees or any of them;

(e) all sums payable to or out of the income or
capital of the trust property shall be paid to or by
the custodian trustee:

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

(f) the power of appointing new trustees, when
exerciseable by the trustees, shall be exerciseable
by the managing trustees alone, but the custo-
dian trustee shall have the same power of
applying to the court for the appointment of a
new trustee as any other trustee;

(g) in determining the number of trustees for the
purposes of the Trustee Act, the custodian
trustee shall not be reckoned as a trustee;

Ch. 176.

CH.177 – 8] PUBLIC TRUSTEE





STATUTE LAW OF THE BAHAMAS [Original Service 2001]

(h) the custodian trustee, if he acts in good faith,
shall not be liable for accepting as correct and
acting upon the faith of any written statement by
the managing trustees as to any birth, death,
marriage or other matter of pedigree or relation-
ship or other matter of fact, upon which the title
to the trust property or any part thereof may
depend, nor for acting upon any legal advice
obtained by the managing trustees independently
of the custodian trustee;

(i) the court may, on the application of either the
custodian trustee, or any of the managing
trustees, or of any beneficiary, and on proof to
its satisfaction that it is the general wish of the
beneficiaries, or that on other grounds it is
expedient, to terminate the custodian trusteeship,
make an order for that purpose, and the court
may thereupon make such vesting orders and
give such directions as under the circumstances
may seem to the court to be necessary or
expedient.

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

8. (1) The Public Trustee may by that name, or any
other sufficient description, be appointed to be trustee of
any will or settlement or other instrument creating a trust
or to perform any trust or duty belonging to a class which
he is authorised by rules to accept, and may be so
appointed whether the will or settlement or instrument
creating the trust or duty was made or came into operation
before or after the passing of this Act, and either as an
original or as a new trustee, or as an additional trustee, in
the same cases, and in the same manner, and by the same
persons or court, as if he were a private trustee, with this
addition, that, though the trustees originally appointed were
two or more, or though the will or settlement or instrument
creating the trust requires two or more trustees, the Public
Trustee may be appointed sole trustee.

Appointment of
Public Trustee to
be trustee,
executor, etc.

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

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

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

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

9. (1) If, in pursuance of any rule, the Public
Trustee is authorised to accept by that name probates of
wills or letters of administration, the court having
jurisdiction to grant probate of a will or letters of
administration may grant such probate or letters to the
Public Trustee by that name, and, for that purpose, the
court shall consider the Public Trustee as in law entitled
equally with any other person or class of persons to obtain
the grant of letters of administration, save that the consent
or citation of the Public Trustee shall not be required for
the grant of letters of administration to any other person,
and that, as between the Public Trustee and the widower,
widow or next-of kin of the deceased, the widower, widow
or next-of-kin shall be preferred, unless for good cause
shown to the contrary.

(2) Any executor who has obtained probate or any
administrator who has obtained letters of administration,
and notwithstanding he has acted in the administration of


Ch. 176.

Power as to
granting probate.

CH.177 – 10] PUBLIC TRUSTEE





STATUTE LAW OF THE BAHAMAS [Original Service 2001]

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

10. (1) Subject to any rules and unless the court
otherwise orders, the condition and accounts of any trust
shall, on an application being made and notice thereof
given in the prescribed manner by any trustee or
beneficiary, be investigated and audited by such counsel
and attorney or qualified accountant as may be agreed on
by the applicant and the trustees or, in default of
agreement, by the Public Trustee or some person appointed
by him:

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

(2) The person making the investigation or audit
(hereinafter called the auditor) shall have a right of access
to the books, accounts and vouchers of the trustees and to
any securities and documents of title held by them on
account of the trust, and may require from them such
information and explanations as may be necessary for the
performance of his duties, and, upon the completion of the
investigation and audit, shall forward to the applicant and
to every trustee a copy of the accounts, together with a
report thereon, and a certificate signed by him to the effect
that the accounts exhibit a true view of the state of the
affairs of the trust and that he has had the securities of the
trust fund investments produced to and verified by him or
(as the case may be) that such accounts are deficient in
such respects as may be specified in such certificate.

Investigation and
audit of trust
accounts.

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(3) Every beneficiary under the trust shall, subject
to any rules, be entitled at all reasonable times to inspect
and take copies of the accounts, report and certificate, and,
at his own expense, to be furnished with copies thereof or
extracts therefrom.

(4) The auditor may be removed by order of the
court, and, if any auditor is removed, or resigns, or dies, or
becomes bankrupt or incapable of acting before the
investigation and audit is completed, a new auditor may be
appointed in his place in like manner as the original
auditor.

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

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

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

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

11. (1) The Government of The Bahamas shall be
liable to make good all sums required to discharge any
liability which the Public Trustee, if he were a private
trustee, would be personally liable to discharge, except


Liability of
Consolidated
Fund.

CH.177 – 12] PUBLIC TRUSTEE





STATUTE LAW OF THE BAHAMAS [Original Service 2001]

where the liability is one to which neither the Public
Trustee nor any of his officers or agents have in any way
contributed, and which neither he nor any of his officers
could by the exercise of reasonable diligence have averted,
and in that case neither the Public Trustee, his officers or
agents nor the said Government shall be subject to any
liability.

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

12. (1) There shall be charged in respect of the
duties of the Public Trustee such fees as may be fixed by
the Minister by order from time to time, and any such order
may contain such incidental and supplementary provisions
as appear to the Minister to be necessary or expedient for
the purpose of the order.

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

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

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

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

(5) In this section —
“trust fund” includes any part of a trust fund and also

includes an estate administered by the Public
Trustee and any part of such an estate; and

Fees charged by
Public Trustee.
E.L.A.O., 1974.

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

13. Any expenses which might be retained or paid out
of the trust property if the Public Trustee were a private
trustee shall be so retained or paid out by the Public
Trustee, and fees charged in accordance with section 12
shall be retained or paid in the like manner as and in
addition to such expenses.

14. A person aggrieved by any act or omission or
decision of the Public Trustee in relation to any trust may
apply to the court in accordance with rules of court and the
court may make such order in the matter as the court thinks
just.

15. (1) The Public Trustee may, subject to any rules,
employ for the purposes of any trust such counsel and
attorneys, bankers, accountants and brokers as he may
consider necessary.

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

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

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

16. (1) The Minister may make rules for carrying
into effect the objects of this Act and in particular, but
without derogation from the generality of the foregoing, for
all or any of the following purposes —

Expenses.

Appeal to the
court.

Mode of action
of Public Trustee.

Rules.
E.L.A.0., 1974.

CH.177 – 14] PUBLIC TRUSTEE





STATUTE LAW OF THE BAHAMAS [Original Service 2001]

(a) prescribing the trusts or duties the Public
Trustee is authorised to accept or undertake;

(b) the transfer to and from the Public Trustee of
any property;

(c) the accounts to be kept by the Public Trustee
and their audit;

(d) excluding any trust from the operation of this
Act or any part thereof;

(e) the classes of corporate bodies entitled to act as
custodian trustees;

(f) the form and manner in which notices under this
Act shall be given.

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

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