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TRUSTEE ACT (NORTHERN IRELAND) 1958 - SECT 35

35.(1) Where a trustee, whether original, substituted or additional, 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

(a)the person or persons nominated for the purpose of appointing new trustees
by the instrument, if any, creating the trust; or

(b)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;

(2) Where a trustee has been removed under a power contained in the instrument
creating the trust, a new trustee or new trustees may be appointed in the
place of the trustee who is removed, as if he were dead, or, in the case of a
corporation, as if the corporation desired to be discharged from the trust,
and the provisions of this section shall apply accordingly.

(3) Where a corporation being a trustee is or has been dissolved, either
before or after the commencement of this Act, then, for the purposes of this
section and of any enactment replaced thereby, the corporation shall be deemed
to be and to have been from the date of the dissolution incapable of acting in
the trusts or powers reposed in or conferred on the corporation.

(4) The power of appointment given by sub-section (1) or any similar previous
enactment to the personal representatives of a last surviving or continuing
trustee shall be and shall be deemed always to have been exercisable by the
executors for the time being (whether original or by representation) of such
surviving or continuing trustee who have proved the will of their testator or
by the administrators for the time being of such trustee without the
concurrence of any executor who has renounced or has not proved.

(5) But a sole or last surviving executor intending to renounce, or all the
executors where they all intend to renounce, shall have and shall be deemed
always to have had power, at any time before renouncing probate, to exercise
the power of appointment given by this section, or by any similar previous
enactment, if willing to act for that purpose and without thereby accepting
the office of executor.

(6) Where a sole trustee, other than a trust corporation, is or has been
originally appointed to act in a trust, or where, in the case of any trust,
there are not more than three trustees (none of them being a
trust corporation) whether original, substituted or additional and whether
appointed by the court or otherwise, then and in any such case

(a)the person or persons nominated for the purpose of appointing new trustees
by the instrument, if any, creating the trust; or

(b)if there is no such person, or no such person able and willing to act, then
the trustee or trustees for the time being;

(7) Every new trustee appointed under this section 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.

(8) The provisions of this section relating 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.

(9) Where a person of unsound mind or person requiring special care, being a
trustee, is also entitled in possession to some beneficial estate or interest
in the trust property, no appointment of a new trustee in his place shall be
made by the continuing trustees or trustee, under this section, unless leave
has been given by the [High Court or the Master (Care and Protection)] to make
the appointment.

© 1958 Crown Copyright

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