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CHAPTER 177

PUBLIC TRUSTEE

PUBLIC TRUSTEE RULES

(SECTION 16) [Commencement 1st April, 1971]

1. These Rules may be cited as the Public Trustee Rules.

2. In these Rules, unless the context otherwise requires —

“Act” means the Public Trustee Act; “trust” includes any trust, duty or office which the

Public Trustee is authorised by the Act or these Rules to accept and “trustee” shall be construed accordingly;

“trust instrument” includes any instrument, Act or order of court by which a trust is created or declared;

“trust property” includes all property subject to a trust or comprised in an estate which is proposed to be administered by the Public Trustee.

Authorised Trusts and Duties 3. Subject to the Act and these Rules, the Public

Trustee is authorised — (a) to accept any trust created or declared by any

trust instrument or arising upon an intestacy; (b) to accept any duty incident to, and to act in, any

of the following offices — (i) as incident to the office of trustee of any

trust accepted by him, the office of guardian of any infant beneficiary;

(ii) the office (where the execution of any trust is involved therein) of agent or attorney for any person;

S.I. 26/1971

Citation.

Interpretation.

Trusts and duties.

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(c) to accept by the name of the Public Trustee probate or letters of administration of any kind and either as principal or as agent for any person;

(d) to accept as custodian trustee any trust created or declared by any trust instrument;

(c) to receive any money or damages paid to him in pursuance of any rule of court and to apply the money in accordance with such rule or any directions of a court or a judge thereunder:

Provided that he shall not accept the trusts of any instrument made solely by way of security for money.

4. The Public Trustee may if he thinks fit — (a) act as custodian trustee of a trust which involves

the management or carrying on of any business but on the conditions that —

(i) he shall not act in the management or carrying on of such business; and

(ii) he shall not hold any property of such a nature as will expose the holder thereof to any liability except under exceptional cir- cumstances and when he is satisfied that he is fully indemnified or secured against loss; and

(b) accept as ordinary trustee, under exceptional circumstances a trust which involves the management or carrying on of any business, but upon the conditions that, except with the consent of the Minister of Finance, he shall only carry on the same —

(i) for a short time not exceeding eighteen months; and

(ii) with a view to sale, disposition or winding up; and

(iii) if satisfied that the same can be carried on without risk of loss.

5. (1) A testator may appoint the Public Trustee to be trustee or custodian trustee under any testamentary instrument without previously applying to him for his consent to act as such.

Trust involving management of business.

Appointment by testator.

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(2) No such appointment by a testator shall have effect and no appointment of the Public Trustee to be trustee or custodian trustee shall be made except by a testator unless and until (in either case) the consent of the Public Trustee to act as such trustee shall have been obtained in accordance with these Rules:

Provided that in the case of any such appointment by a testator, the Public Trustee shall, at any time after the fact of his appointment shall have come to his knowledge, be at liberty to act as if an application had been received by him.

(3) It shall be the duty of any person appointed by a testator to be co-trustee with the Public Trustee and not renouncing or disclaiming the trust, to give to the Public Trustee notice in writing of such appointment as soon as practicable after the same has come to his knowledge.

6. Upon receiving an application for his consent to act as trustee or as custodian trustee the Public Trustee may require to be produced to him the trust instrument (if any), and may require to be supplied to him a copy of that instrument, and of any other document affecting the trust, and such particulars as to the nature and value of any trust property, and the liabilities (if any) attaching to such property, or the holder thereof, and the names and places of abode of any beneficiaries and trustees under the trust, and such other information relating, to the trust as he may consider it desirable to obtain in any particular case.

7. As soon as may be after receiving any such application, the Public Trustee shall take into consideration upon such evidence as may appear to him sufficient —

(a) the gross capital value of the trust property; (b) the mode of investment and the condition of the

trust property; (c) the situation, tenure, and character of any land

comprised in the trust property; (d) any liabilities attaching to the trust property or

the holder thereof; (e) the duties incident to the office of trustee of the

trust; (f) the places of abode and circumstances of any

beneficiaries; and (g) all the circumstances of the case,

Information to be given.

Determination of application

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and shall decide whether the application ought to be accepted or refused, and shall give notice to the applicant of such acceptance or refusal, and in case of acceptance shall in writing under his official seal signify his consent to act in the trust.

Administration of Small Estates 8. Upon receiving an application under section 6(1)

of the Act, the Public Trustee shall require to be supplied to him such evidence as to the value of the estate, and the circumstances of the persons beneficially entitled, and such other information relating thereto as he may consider it desirable to obtain in any particular case.

9. (1) If it is not proved to the satisfaction of the Public Trustee that the gross capital value of the estate is less than ten thousand dollars, or if it does not appear to him that the persons beneficially entitled are persons of small means, or if he sees any other good reason for refusing the application, he shall refuse the same, and shall forthwith give notice to the applicant of such refusal.

(2) In any other case the Public Trustee shall make in respect of the estate the declaration mentioned in section 6(2) of the Act, and shall give notice to the applicant that the application is accepted, and shall take such other steps as may be necessary or proper to enable him to administer the estate; and any person having the custody of the probate or letters of administration, or other document relating to the estate, shall, upon the request in writing of the Public Trustee, deliver the same to him, or as he shall direct.

(3) A refusal under this rule shall not prevent the Public Trustee from exercising with respect to the estate, any powers (other than powers under section 6 of the Act) exercisable by him with respect thereto under the Act or these Rules, if duly appointed to exercise the same.

10. For the purposes of the administration the Public Trustee shall (subject as hereinafter provided) have all the administrative powers and authorities exercisable by a judge or the Registrar of the Supreme Court acting in the administration of an estate.

Application for administration of small estates.

Refusal and acceptance.

Public Trustee to have powers of judge or Registrar.

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11. (1) The Public Trustee may, in manner hereinafter provided and without judicial proceedings, take the opinion of the Supreme Court upon any question arising in the course of administration.

(2) The duty of advising upon any such question shall be assigned by the Chief Justice to a particular judge:

Provided that in the absence or upon the request of such judge and during vacation any other judge may act for such judge for the purposes of this rule.

(3) Any such question shall be submitted to the judge in such manner and at such time as he may direct and shall be accompanied by such statement of facts, documents and other information as he may require, and the Public Trustee shall, if the judge so desires, attend upon him at such time and place as the judge may appoint.

(4) The judge may, before giving his opinion, require the attendance of, or communicate with, any person interested in the estate as trustee or beneficiary but no such person shall have a right to be heard by the judge unless he otherwise directs.

(5) The judge shall give his opinion to the Public Trustee and the Public Trustee shall act in accordance with such opinion and shall, upon the request in writing of any such interested person, communicate to him the effect of such opinion.

Administration of Trusts and Estates 12. There shall be kept by the Public Trustee such

registers and other books as shall be required for recording or entering in a convenient form as to each trust or estate which the Public Trustee is administering the particulars following —

(a) the date of the acceptance of the trust or of the declaration made under section 6(2) of the Act;

(b) particulars of the trust property from time to time;

(c) the names and place of abode of the person in receipt of the income of the trust property;

(d) a reference to any notice received of any dealing with any beneficial interest in the trust property, and of any exercise or release of any power relating to the trust or estate;

Opinion of Court.

Registers and books.

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(e) an entry of any decision or opinion of the Supreme Court in respect of the trust or estate;

(f) such entries of his decisions and such other particulars as the Public Trustee may think fit,

and such particulars shall be recorded or entered accordingly.

13. The Public Trustee may invest or retain invested money belonging to any trust or estate and coming to his hands in any mode of investment expressly or impliedly authorised by the trust instrument or (if there is no trust instrument) authorised by law for the investment of trust funds and may, if authorised by the trust instrument or otherwise by law, retain any investment existing at the date of the commencement of the trust:

Provided that he shall not invest in or hold any investment in such manner as to expose him to liability as the holder thereof unless he is satisfied that he is fully indemnified or secured against loss.

14. (1) The securities and documents belonging or relating to a trust or estate which the Public Trustee is administering shall, if under his control, be kept at the bank for the trust or estate or at some other safe place of deposit allowed generally or specially by the Minister of Finance, so far as the convenience of business will admit.

(2) All orders for the withdrawal of securities or documents from any such bank or other place of deposit shall be signed by not less than two persons —

(a) by the Public Trustee and a co-trustee; or (b) by the Public Trustee and an officer of the

Public Trustee authorised in writing by him to act in that behalf either generally or in any particular case; or

(c) by a co-trustee and one such duly authorised officer; or

(d) by two such duly authorised officers. 15. (1) Separate accounts shall be kept for every

trust or estate. (2) A separate account shall be kept of the capital of

the trust property and of the mode in which it is from time to time invested, and all dealing, with such capital shall be entered in such account.

Investment.

Securities and documents.

Accounts.

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(3) A separate account shall be kept of the income of the trust property (if received by the Public Trustee), and of the mode in which it is from time to time dealt with by the Public Trustee.

16. All sums payable out of the income or capital of the trust property shall be made by a cheque on a bank signed by not less than two persons —

(a) by the Public Trustee and a co-trustee; or (b) by the Public Trustee and an officer of the

Public Trustee authorised in writing by him to act in that behalf either generally or in any particular case; or

(c) by a co-trustee and one such duly authorised officer; or

(d) by two such duly authorised officers: Provided that in any particular case the Public

Trustee may authorise the payment of income by the person liable to pay the same direct to the person entitled to receive the same, or to his bank.

17. (1) The income of the trust property may be paid to the person for the time being entitled to receive the same either through a bank or direct, and where such person is a married woman may be so paid notwithstanding any restraint on anticipation.

(2) Where authority is given to any corporation or bank to pay any income to any person, the books of that corporation or bank showing the payment of that income in accordance with the authority shall be a sufficient discharge to the Public Trustee.

Where authority is given to any person to pay any income to the bank of the person entitled, the certificate of that bank stating the receipt of that income shall be a sufficient discharge to the Public Trustee.

(4) Where any person is solely entitled to receive any income, the Public Trustee may, on the request in writing of that person, and notwithstanding any restraint on anticipation, authorise that person for such period as the Public Trustee may think fit to collect or arrange for the collection of such income. During the continuance of any such authority such request in writing shall be a sufficient discharge to the Public Trustee in respect of such income.

Payments by cheque.

Payment of income.

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18. The Public Trustee may, if the special circumstances of the case appear to him to render it desirable, pay to any other trustee of the trust, or allow him to receive, the income of the trust property or any part thereof, on such trustee undertaking to apply it in manner directed by the trust.

19. The Public Trustee may make advances for the purposes of any trust or estate in course of administration, or about to be administered, by him, out of any moneys which may be placed at his disposal by the Minister of Finance for that purpose, and upon such terms as he may think proper.

20. Subject to the provisions of the Act and of these Rules and to the terms of any particular trust, the Public Trustee may, in the administration of any trust or estate, take and use professional advice and assistance in regard to legal and other matters, and may act on credible information (though less than legal evidence) as to matters of fact.

21. The Public Trustee may at any time require a statutory declaration or other sufficient evidence that a person is alive and is the person to whom any money or property is payable or transferable, and may refuse payment or transfer until such declaration or evidence is produced.

22. Where a person appearing to be beneficially entitled to any sum of money under the trust or to be interested in the trust property cannot be found, or it is not known whether he is living or dead, the Public Trustee may apply to the Court for directions as to the course to be taken with reference to such person, and until an order of the Court is made shall keep any sum payable to such person, and if it is kept for more than six months, shall invest the same or deposit the same at interest and shall accumulate the dividends or interest thereof.

23. (1) Upon an application in writing by or with the authority of any person interested in the trust property, the Public Trustee —

(a) shall permit the applicant or his counsel and attorney or other authorised agent to inspect and take copies of any entry in any register or book relating to the trust or estate and (so far as the

Payment by other trustee.

Advances.

Advice, etc.

Power to require declaration

When beneficiary cannot be found, etc.

Inspection, etc., by person interested.

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interest of the applicant in the trust property is or may be affected thereby) of any account, notice, or other document in the custody of the Public Trustee;

(b) shall at the expense of the applicant supply him or his counsel and attorney or other authorised agent with a copy of any such entry, account, notice, or document as aforesaid, or with any extract therefrom;

(c) shall give to the applicant or his counsel and attorney or other authorised agent such informa- tion respecting the trust or estate and the trust property as shall be reasonably requested in the application and as shall be within the power of the Public Trustee.

(2) Subject as aforesaid, the Public Trustee shall observe strict secrecy in respect of every trust or estate in course of administration by him. Custodian Trustees

24. (1) Any corporation — (a) constituted under the laws of The Bahamas; and (b) licensed to carry on trust business under the

provisions of the Banks and Trusts Companies Regulation Act; and

(c) having a capital (in stock or shares) for the time being issued of $500,000 of which not less than $300,000 shall have been paid up in cash,

shall be entitled to act as custodian trustee. Investigation and Audit of Trust Accounts

25. Any application under section 10(1) of the Act shall be made to the Public Trustee, and notice thereof shall (unless the Public Trustee otherwise directs) be given by the applicant to every other person being a trustee or beneficiary under the trust.

26. (1) Upon receiving any such application the Public Trustee may in his absolute discretion by notice to the applicant require that, before a day to be specified in the notice, such security (by deposit of a sum of money) as he shall deem sufficient shall be given to him by the applicant for the payment of any expenses of the investigation and audit which may be ordered by the Public Trustee to be paid by the applicant personally.

Corporations as custodian trustees.

Application for investigation.

Security.

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(2) Where any such requirement is made no further proceedings shall be taken upon the application until the security has been given, and, if the same is not given before the day specified in the notice, the application shall be disallowed unless under special circumstances the Public Trustee thinks fit to extend the time for giving the security or to dispense therewith.

(3) Any sum so deposited shall be kept by the Public Trustee on deposit in his name and to a separate account at a bank until all proceedings in connection with the investigation and audit have been concluded, and there- upon the deposited sum and the interest (if any) allowed thereon by the bank shall be applied in or towards payment of any expenses of the investigation and audit which may be so ordered to be paid by the applicant personally and the balance (if any) shall be paid to the applicant.

27. The Public Trustee may in his absolute discretion, upon the application of any trustee or beneficiary, direct that the investigation and audit shall extend only to a specified period of time or to a specified part of the trust property or shall be otherwise restricted.

28. If within one month from the date of the application under section 10(1) of the Act, no counsel and attorney or public accountant shall have been appointed by the applicant and the trustees to conduct the investigation and audit, there shall be deemed to be a default of agreement within the meaning of the said section 10(1) and the applicant may apply to the Public Trustee accordingly.

29. The remuneration of the auditor and the other expenses of the investigation and the audit shall be such as may be determined by the Public Trustee:

Provided that the Public Trustee may refer the costs of any counsel and attorney (being part of such expenses) for taxation to the Registrar of the Supreme Court and in such case the amount of the said costs when taxed shall be included in such expenses.

Power to limit investigation.

Default.

Costs and renumeration.

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30. (1) Where any investigation or audit has been made, copies of the report and certificate of the auditor under section 10(2) of the Act and such copies of accounts and other documents as the Public Trustee may require shall be forwarded to him by the auditor, and shall be considered by the Public Trustee before giving any direction or making any order under section 10(5) of the Act.

(2) The expense of making and forwarding any such copies as aforesaid and the fee of the Public Trustee (within the limits prescribed by or in pursuance of any order relating to the fees of the Public Trustee for the time being in force) shall for the purpose of section 10(5) of the Act be part of the expenses of the investigation and audit.

31. (1) Before making any order under section 10(5) of the Act the Public Trustee shall, if any of the parties interested so desire, hear the said parties in such manner as he shall think fit.

(2) Any such order shall specify the person by or to whom any sum is to be paid and the amount of such sum, provided that such an order may direct payment of the taxed costs of any counsel and attorney employed in connection with the investigation and audit, and such costs shall be taxed by the Registrar of the Supreme Court, and the amount of such costs when taxed shall be paid as if such amount had been specified in the order.

(3) Any such order may be enforced in the same manner as a judgment or order of the Court to the same effect.

Miscellaneous 32. The accounts of the Public Trustee shall be

audited and the securities held by him verified from time to time by such person or persons as the Minister of Finance may appoint.

33. Any officer of the Public Trustee who shall be authorised by him in writing in that behalf may take any oath, make any declaration, verify any account, and give personal attendance at any court or place.

Copies of report and certificate.

Hearing of parties and order.

Audit of Public Trustee’s accounts.

Authorised officers.

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34. (1) Any notice or application required to be given or made for the purposes of the Act or of these Rules to the Public Trustee may be addressed to the Public Trustee at his office in Nassau.

(2) Any notice or application required to be given or made for the purposes of the Act or of these Rules to any person other than the Public Trustee may be addressed to that person at his last known place of abode or place of business.

(3) Any such notice or application may be delivered at the place to which it is addressed or may be served by pre-paid registered post.

35. Where any person who (if not under disability) might have made an application, given any consent, done any act, or been party to any proceedings in pursuance of these Rules is an infant or a mentally disordered person, the guardian or (as the case may require) the receiver of the estate of such person may make such application, give such consent, do such act, and be party to such proceedings as such person if free from disability might have made, given, done, or been party to, and shall otherwise represent such person for the purposes of these Rules. Where there is no guardian or receiver of the estate of any such infant, or mentally disordered person, or where any person is incapable of managing his affairs but has not been found so incapable under section 34 of the Mental Health Act, it shall be lawful for the Court to appoint a guardian of such a person for the purpose of any proceedings under these Rules and from time to time to change such guardian.

PUBLIC TRUSTEE (FEES) ORDER

(SECTION 12) [Commencement 1st April, 1971]

1. This Order may be cited as the Public Trustee (Fees) Order.

2. In this Order, unless the context otherwise requires —

“Act” means the Public Trustee Act; “financial year” means the year ending the 31st

December;

Notices.

Persons under disability.

Ch. 230.

S.I. 25/1971

Citation.

Interpretation.