Trustee Act

(1) In this Act, "trustee" includes an executor, an administrator, a trustee whose trust arises by construction or implication of law, an express trustee and several joint trustees.

(2) This Act does not apply to a person named as a trustee or alternate trustee in a trusteeship order made under the Guardianship and Trusteeship Act or to a person who becomes a trustee or alternate trustee by the operation of that Act. SNWT 1994,c.29, s.67(3),(4).

(1) Whenever it is expedient to appoint one or more trustees, and it is inexpedient, difficult or impracticable to do so without the assistance of the Supreme Court, a judge of the Supreme Court may make an order

(2) No order under subsection (1) or a consequential vesting order or conveyance shall operate further or otherwise as a discharge to any former or continuing trustee than an appointment of new trustees under a power for that purpose contained in an instrument would have operated.

(3) Nothing in this section gives the power to appoint a personal representative.

(1) Where a trustee dies or wishes to be discharged from the trust or refuses or becomes unfit to act or incapable of acting in respect of the trust,

may appoint a person or persons to be a trustee or trustees in place of that trustee.

(2) When a new trustee or trustees is or are appointed under subsection (1), all the trust property that is vested in the surviving or continuing trustee or trustees or in the heirs, executors or administrators of any trustee or trustees shall as quickly as conveniently possible be assigned and transferred so that the trust property may be legally and effectually vested in the new trustee or trustees either solely or jointly with a surviving or continuing trustee or the surviving or continuing trustees as the case may require.

(3) Every new trustee has before and after a conveyance, assignment or transfer made pursuant to subsection (2), and every trustee appointed by a judge of the Supreme Court, has the same powers, authorities and discretions, and shall in all respects act as if he or she had originally been nominated a trustee by the deed, will or other instrument creating the trust.

(1) 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.

(2) Where there are more than two trustees, if

the trustee wishing to be discharged shall be deemed to have retired from the trust and shall, by the deed, be discharged from the trust without any new trustee being appointed in his or her place.

(3) Any assurance or thing required for vesting the trust property in the continuing trustees alone shall be executed or done.

(1) Where an instrument by which a new trustee is appointed to perform a 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 subject to the trust, or the right to recover and receive any debt or other thing in action subject to the trust shall vest in the persons who by virtue of the instrument become and are the trustees for performing the trust, that declaration shall, without any conveyance or assignment but subject to the Land Titles Act, operate to vest in these persons as joint tenants and for the purposes of the trust, that estate, interest or right.

(2) Where an instrument by which a retiring trustee is discharged under this Act contains a declaration made under this section by the retiring and continuing trustees and by the other person, if any, empowered to appoint trustees, that declaration, without any conveyance or assignment but subject to the conditions in subsection (1), operates to vest in the continuing trustees alone as joint tenants and for the purposes of the trust, the estate, interest or right to which the declaration relates.

(3) This section does not extend to any share, stock, annuity or property transferable only in books kept by a company or other body, or in a manner established by or under any Act.

(4) For the purposes of registration of an instrument, the person or persons making the declaration shall be deemed to be the conveying party or parties and the conveyance shall be deemed to be made by him or her or them under a power conferred by this Act. RSNWT 1988,c.8(Supp.), s.249.

(1) For the purposes of subsection (2), the executor or administrator of the deceased shall be deemed in law to be his or her heirs and assigns within the meaning of all trusts and powers.

(2) Where an estate or interest of inheritance in real property is vested on an express trust in a person solely,

(1) Subsection (2) applies only if and as far as a contrary intention is not expressed in the instrument creating the trust or power and has effect subject to the terms of that instrument and to the provisions contained in that instrument.

(2) Where a trust for sale or a power of sale of property is vested in a trustee, the trustee may sell or concur with any other person in selling all or part of the property

(1) No sale made by a trustee shall be impeached by a beneficiary on the ground that any of the conditions subject to which the sale was made may have been unnecessarily depreciatory unless it also appears that the consideration for the sale was rendered inadequate as a result of the condition.

(2) No sale made by a trustee shall after the execution of the conveyance be impeached as against the purchaser on the ground that any of the conditions subject to which the sale was made may have been unnecessarily depreciatory unless it appears that the purchaser was acting in collusion with the trustee at the time when the contract for sale was made.

(3) No purchaser on a sale made by a trustee shall be at liberty to make any objection against the title on the grounds mentioned in this section.

(1) Where in the management or administration of property vested in trustees, a sale, lease, mortgage, surrender, release or other disposition, or a purchase, investment, acquisition, expenditure or other transaction, is in the opinion of a judge of the Supreme Court expedient, but it cannot be effected by reason of the absence of any power for that purpose vested in the trustees by the trust instrument, if any, or by law, the judge may by order confer on the trustees, either generally or in any particular instance, the necessary power for this purpose, on the terms, and subject to the provisions and conditions, if any, that the judge thinks fit and may direct in what manner any money authorized to be expended, and the costs of any transaction, are to be paid or borne as between capital and income.

(2) A judge of the Supreme Court may, from time to time, rescind or vary any order made under subsection (1), or may make any new further order.

(3) An application to a judge of the Supreme Court under this section may be made by the trustees, or by any of them, or by any person beneficially interested under the trust.

(1) A trustee may appoint a solicitor to be agent of the trustee to receive and give a discharge for any money, valuable consideration or property receivable by the trustee under the trust.

(2) No trustee shall be chargeable with breach of trust by reason only of having made or concurred in making an appointment referred to in subsection (1), but nothing in this section exempts a trustee from any liability that the trustee would have incurred but for this section for permitting the money, valuable consideration or property referred to in subsection (1) to remain in the hands or under the control of the solicitor for a period longer than is reasonably necessary to enable the solicitor to pay or transfer the money, valuable consideration or property to the trustee.

(3) A trustee may appoint a bank or solicitor to be agent of the trustee to receive and give a discharge for any money payable to the trustee under or by virtue of a policy of assurance or otherwise.

(4) No trustee shall be chargeable with a breach of trust by reason only of having made or concurred in making an appointment referred to in subsection (3), but nothing in this section exempts a trustee from any liability that the trustee would have incurred but for this section for permitting the money referred to in subsection (3) to remain in the hands or under the control of the bank or solicitor for a period longer than is reasonably necessary to enable the bank or solicitor to pay the money to the trustee.

(1) A trustee may insure any building or other insurable property against loss or damage by fire to any amount, including the amount of any insurance then in effect, not exceeding 3/4 of the full value of the building or property and to pay the premiums for that insurance out of the income of the building or property or out of the income of any other property subject to the same trusts without obtaining the consent of any person entitled wholly or partly to the income.

(2) Subsection (1) does not apply to any building or property that a trustee is bound to convey without delay absolutely to any cestui que trust on being requested to do so.

(1) Subsection (2) applies only if and as far as a contrary intention is not expressed in the instrument, if any, creating the trust and has effect subject to the terms of that instrument.

(2) An executor or administrator or two or more trustees, acting together, or a sole acting trustee where by the instrument, if any, creating the trust a sole trustee is authorized to execute the trusts and powers thereof, may, if and as he or she or they may think fit,

relating to the estate of the testator or intestate or to the trust, and for any of these purposes may enter into, give and execute agreements, instruments of composition or arrangement and releases and do any other thing that to him or her or them seems expedient without being responsible for any loss occasioned by any act or thing so done by him or her or them in good faith.

(1) A trustee acting or paying money in good faith under or in pursuance of a power of attorney is not liable for the act or payment by reason of the fact that at the time of the payment or act the person who gave the power of attorney was dead or had done some act to avoid the power if this fact was not known to the trustee at the time of acting or paying.

(2) Nothing in subsection (1) affects the right of any person entitled to the money against the person to whom the payment is made and the person so entitled has the same remedy against the person to whom the payment is made as he or she would have had against the trustee.

(1) Where property is held by trustees in trust for a minor, either absolutely or contingently on the minor attaining the age of 19 years or on the occurrence of any event previous to the minor attaining that age, the trustees may at their sole discretion pay to the persons who have lawful custody of the minor, or otherwise apply for or towards the maintenance or education of the minor, the whole or part of the income to which the minor may be entitled in respect of that property whether or not there is any fund applicable to the same purpose or any other person bound by law to provide for that maintenance or education.

(2) The trustees referred to in subsection (1) shall accumulate all the residue of the income referred to in subsection (1) by way of compound interest by investing it and the resulting income from it from time to time in proper securities for the benefit of the person who ultimately becomes entitled to the property from which the accumulation arose.

(3) The trustees, at any time if it appears to them expedient, may apply the whole or part of the accumulations referred to in subsection (2) as if the accumulations were part of the income arising in the then current year. SNWT 1998,c.17,s.28(2).

(1) Where

the trustees by leave of a judge of the Supreme Court, to be obtained in a summary manner, may sell and dispose of any portion of the real or personal property and pay the whole or any part of the money arising from the sale to the persons who have lawful custody of the minor or otherwise to be applied for or towards the maintenance or education of the minor.

(2) In the event of the whole of the money arising from a sale of the real or personal property under subsection (1) not being immediately required for the maintenance and education of the minor, the trustees shall

(1) Trustees, or the majority of trustees, having in their hands or under their control money or securities belonging to a trust, or to the estate of a deceased person, may as provided in the Judicature Act pay the money or securities into Supreme Court and the money or securities shall, subject to the Rules of the Supreme Court, be dealt with according to the order of a judge of the Supreme Court.

(2) The receipt or certificate of the Clerk of the Supreme Court is a sufficient discharge to trustees for the money or securities paid into Supreme Court under subsection (1).

(3) Where moneys or securities are vested in persons as trustees and the majority wishes to pay the moneys or securities into Supreme Court but the concurrence of the other or others cannot be obtained, a judge of the Supreme Court may order the payment into Supreme Court to be made by the majority without the concurrence of the other or others.

(4) Where the moneys or securities referred to in subsection (3) are deposited with a banker, broker or other depositary, a judge of the Supreme Court may order payment or delivery of the moneys or securities to the majority of the trustees for the purpose of payment into Supreme Court.

(5) Every transfer, payment and delivery made in pursuance of an order made under subsection (3) or (4) is valid and takes effect as if it had been made on the authority or by the act of all the persons entitled to the moneys and securities so transferred, paid or delivered.

(1) The executors or administrators of a deceased person may maintain an action for all torts or injuries to the person or to the real or personal estate of the deceased, except in case of libel and slander, in the same manner and with the same rights and remedies as the deceased would if living have been entitled to do.

(2) The damages when recovered under subsection (1) form part of the personal estate of the deceased.

(3) An action referred to in subsection (1) may not be commenced more than two years after the death of the deceased. SNWT 2022,c.4,s.30.

(1) Where a deceased person committed a wrong to another in respect of his or her person or of his or her real or personal property, except in cases of libel and slander, the person so wronged may maintain an action against the executors or administrators of the deceased person.

(2) An action referred to in subsection (1) may not be commenced more than two years after the death of the deceased. SNWT 2022,c.4,s.30.

(1) The executors or administrators of a lessor may distrain on the lands demised for any term or at will for the arrears of rent due to the lessor in the lifetime of the lessor in the same manner as the lessor might have done if living.

(2) The arrears mentioned in subsection (1) may be distrained for at any time within six months after the determination of the term or lease and during the continuance of the possession of the tenant from whom the arrears became due and the law relating to distress for rent is applicable to the distress so made.

(1) Where by a will a testator

the trustee or trustees notwithstanding any trusts actually declared by the testator may raise the debt, legacy or money by a sale and absolute disposition by public auction or private contract of the real estate or any part of it or by a mortgage of the real estate or any part of it or partly in one mode and partly in the other.

(2) A mortgage executed under subsection (1) may reserve a rate of interest and fix the period of repayment that the person or persons executing the mortgage think proper.

(1) Where a person

if the deceased would be liable to execute a conveyance were the deceased alive, the executor, administrator or administrator with the will annexed of the deceased person, shall give to the person entitled to it a good and sufficient conveyance of such estates and of such nature as the deceased if living would be liable to give.

(2) A conveyance referred to in subsection (1) is as valid and effectual as if the deceased were alive at the time of the making of the conveyance and had executed the conveyance but the conveyance does not have any further validity.

(1) Where there are several executors, administrators or administrators with the will annexed and one or more of them die, the powers created by this Act vest in the survivor or survivors.

(2) On the administration of the estate of a deceased person, in case of the deficiency of assets, debts due to the Crown and to the executor or administrator of the deceased person, and debts to others including respectively debts by judgment or order, and other debts of record, debts by specialty, simple contract debts and claims for damages that by any Act are payable in the same order of administration as simple contract debts, shall be paid pari passu and without any preference or priority of debts of one rank or nature over those of another.

(3) Nothing in subsection (2) prejudices any lien existing during the lifetime of the debtor on any of the real or personal estate of the debtor.

(1) Where the executor or administrator gives to a creditor or other person of whose claims against the estate the executor or administrator has notice, or to the solicitor or agent of the creditor or other person, notice in writing that the executor or administrator disputes the claim and intends to avail himself or herself of this section, the creditor or other person must commence his or her action in respect of the claim

(2) In default of commencing a claim in accordance with subsection (1), the claim is forever barred.

(3) Unless the creditor or other person within 10 days after the receipt of the notice referred to in subsection (1) notifies the executor or administrator that the creditor or other person withdraws his or her claim,

(1) Where an executor or administrator, liable as such to the rents, covenants or agreements contained in a lease or agreement for a lease granted or assigned to the testator or intestate whose estate is being administered, has

the executor or administrator is at liberty to distribute the residuary estate of the deceased to and among the persons entitled to it respectively without appropriating any part or any further part, as the case may be, of the estate of the deceased to meet any future liability under the lease or agreement for a lease and the executor or administrator shall not, after having assigned the lease or agreement for a lease and having, where necessary, set apart such sufficient fund, be personally liable in respect of any subsequent claim under the lease or agreement for a lease.

(2) Nothing in subsection (1) prejudices the right of the lessor or those claiming under the lessor to follow the assets of the deceased into the hands of the person or persons to or among whom the assets may have been distributed.

(1) Where an executor or administrator liable as such to the rent, covenants or agreements contained in a conveyance or rent charge, whether the rent be by limitation of use, grant or reservation or agreement for the conveyance, granted or assigned to or made and entered into with the testator or intestate whose estate is being administered, has

the executor or administrator is at liberty to distribute the residuary estate of the deceased to and among the persons entitled to it respectively without appropriating any part or any further part, as the case may be, of the estate of the deceased to meet any future liability under the conveyance or agreement for a conveyance and the executor or administrator distributing the residuary estate shall not, after having made or executed the conveyance or assignment and having where necessary set apart such sufficient fund, be personally liable in respect of any subsequent claim under the conveyance or agreement for a conveyance.

(2) Nothing in subsection (1) prejudices the right of the grantor or those claiming under the grantor to follow the assets of the deceased into the hands of the person or persons to or among whom the assets may have been distributed.

(1) Where

has given the same or similar notices as in the opinion of the Supreme Court in which the trustee, assignee, executor or administrator is sought to be charged, would have been given by the Supreme Court in an action for the execution of the trusts of the deed or assignment or in an administration suit, for creditors and others to send in their claims against the person for the benefit of whose creditors the deed or assignment is made or against the estate of the testator or intestate, the trustee, assignee, executor or administrator, at the expiration of the time named in the notices or the last of the notices for sending in claims, is at liberty to distribute all or part of the proceeds of the trust estate or the assets of the testator or intestate, among the persons entitled to it having regard to the claims of which the trustee, assignee, executor or administrator has then notice, and is not liable for the proceeds of the trust estate or assets, or any part of it so distributed to any person of whose claim the trustee, assignee, executor or administrator had notice at the time of the distribution.

(2) Nothing in subsection (1) prejudices the right of any creditor or claimant to follow the proceeds of the trust estate or the assets, or any part of them, into the hands of the person or persons who may have received them respectively.

(1) Any trustee, guardian, executor or administrator may without the commencement of an action apply to a judge of the Supreme Court in the manner set out in the Rules of the Supreme Court for the opinion, advice or direction of the judge on any question respecting the management or administration of the trust property or the assets of a testator or intestate.

(2) A trustee, guardian, executor or administrator acting on the opinion, advice, or direction given by a judge under subsection (1) shall be deemed, so far as regards his or her own responsibility, to have discharged his or her duty as trustee, guardian, executor or administrator in the subject-matter of the application, unless he or she has been guilty of any fraud or wilful concealment or misrepresentation in obtaining the opinion, advice or direction.

(1) A judge of the Supreme Court may allow to the executor or trustee or administrator acting under a will or letters of administration a fair and reasonable allowance

and may make orders from time to time for that allowance.

(2) Compensation shall be allowed to an executor, trustee or administrator in passing his or her accounts.

(1) Where application is made to a judge of the Supreme Court by or on behalf of

the judge may, in the discretion of the judge, appoint a judicial trustee to be a trustee of the trust either jointly with any other person or as sole trustee, and if sufficient cause is shown, in place of all or any existing trustees.

(2) The administration of the property of a deceased person, whether a testator or intestate, is a trust and the executor or administrator is a judicial trustee within the meaning of this section.

(3) Any fit and proper person nominated for the purpose in the application referred to in subsection (1) may be appointed a judicial trustee and in the absence of that nomination or if the judge of the Supreme Court is not satisfied of the fitness of a person nominated, any other competent person may be appointed.

(4) A judicial trustee is subject to the control and supervision of a judge of the Supreme Court.

(5) A judge of the Supreme Court may either on request or without request give to a judicial trustee any general or special directions in regard to the trust or the administration of the trust.

(6) Remuneration may be paid to a judicial trustee out of the trust property not exceeding the limits that a judge of the Supreme Court may assign in each case and the remuneration that is assigned shall cover all the work of the judicial trustee and personal outlay except as the judge may for special reasons otherwise order.

(7) Once in every year the accounts of every trust of which a judicial trustee has been appointed shall be audited and a report on the accounts made to a judge of the Supreme Court by the persons selected by the judge and in any case where a judge so directs, an inquiry into the administration by a judicial trustee of any trust, or into any dealing or transaction of a judicial trustee shall be made in the manner determined by the judge.