Trustee abroad

The trustee legislation in most jurisdictions allows for the replacement of a trustee who has been out of jurisdiction for an extended period of time, usually two years or more.

In re The Geelong Waterworks and Sewerage Trust [1955] VLR 302, the applicant sought an order under Section 51 of the Trustee Act 1953 (Vic)

Section 41(1) of the Trustee Act 1958 (Vic) provides:

(1) Where a trustee is dead, or remains out of Victoria for more than one year without having properly delegated the execution of the trust, 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, or is a minor, then, subject to the restrictions imposed by this Act on the number of trustees—

(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—

may, by writing, appoint one or more other persons (whether or not being the persons exercising the power) to be a trustee or trustees in the place of the trustee so deceased, remaining out of Victoria, desiring to be discharged, refusing, or being unfit, or being incapable, or being a minor as aforesaid.