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34.—(1) This section applies in the case of a trust where—
(a) there is no person nominated for the purpose of appointing new trustees by the instrument, if any, creating the trust; and
(b) the beneficiaries under the trust are of full age and capacity and (taken together) are absolutely entitled to the property subject to the trust.
(2) The beneficiaries may give a direction or directions of either or both of the following descriptions—
(a) a written direction to a trustee or trustees to retire from the trust; and
(b) a written direction to the trustees or trustee for the time being (or, if there are none, to the personal representative of the last person who was a trustee) to appoint by writing to be a trustee or trustees the person or persons specified in the direction.
(3) Where—
(a) a trustee has been given a direction under subsection (2)(a);
(b) reasonable arrangements have been made for the protection of any rights of his in connection with the trust;
(c) after he has retired there will be either a trust corporation or at least two persons to act as trustees to perform the trust; and
(d) either another person is to be appointed to be a new trustee on his retirement (whether in compliance with a direction under subsection (2)(b) or otherwise) or the continuing trustees by deed consent to his retirement,
he shall make a deed declaring his retirement and shall be deemed to have retired and be discharged from the trust.
(4) Where a trustee retires under subsection (3) he and the continuing trustees (together with any new trustee) shall (subject to any arrangements for the protection of his rights) do anything necessary to vest the trust property in the continuing trustees (or the continuing and new trustees).
35.—(1) This section applies where—
(a) a trustee is incapable by reason of mental disorder (within the meaning of the Mental Health Order) of exercising his functions as trustee;
(b) there is no person who is both entitled and willing and able to appoint a trustee in place of him under section 35(1) of the Trustee Act (Northern Ireland) 1958 (c. 23); and
(c) the beneficiaries under the trust are of full age and capacity and (taken together) are absolutely entitled to the property subject to the trust.
(2) The beneficiaries may give to—
(a) a controller appointed for the trustee under Article 101 of the Mental Health Order;
(b) an attorney acting for the trustee under the authority of a power of attorney created by an instrument which is registered under Article 8 of the Enduring Powers of Attorney (Northern Ireland) Order 1987 (NI 16); or
(c) a person authorised for the purpose by the High Court under Part VIII of the Mental Health Order,
a written direction to appoint by writing the person or persons specified in the direction to be a trustee or trustees in place of the incapable trustee.
(3) In this section “the Mental Health Order” means the Mental Health (Northern Ireland) Order 1986 (NI 4).
36.—(1) For the purposes of sections 34 and 35 a direction is given by beneficiaries if—
(a) a single direction is jointly given by all of them; or
(b) (subject to subsection (2)) a direction is given by each of them (whether solely or jointly with one or more, but not all, of the others),
and none of them by writing withdraws the direction given by him before it has been complied with.
(2) Where more than one direction is given each must specify for appointment or retirement the same person or persons.
(3) Subsection (7) of section 35 of the Trustee Act (Northern Ireland) 1958 (c. 23) (powers of trustees appointed under that section) applies to a trustee appointed under section 34 or 35 as if he were appointed under that section.
(4) Sections 34 and 35 do not apply in relation to a trust created by a disposition in so far as provision that they do not apply is made by the disposition.
(5) Sections 34 and 35 do not apply in relation to a trust created before the commencement of those sections by a disposition in so far as provision to the effect that they do not apply is made by a deed executed—
(a) in a case in which the trust was created by one person and he is of full capacity, by that person; or
(b) in a case in which the trust was created by more than one person, by such of the persons who created the trust as are alive and of full capacity.
(6) A deed executed for the purposes of subsection (5) is irrevocable.
(7) Where a deed is executed for the purposes of subsection (5)—
(a) it does not affect anything done before its execution to comply with a direction under section 34 or 35; but
(b) a direction under section 34 or 35 which has been given but not complied with before its execution shall cease to have effect.
37.—(1) For section 19 of the Trustee Act (Northern Ireland) 1958 (c. 23) (power to insure) substitute—
A trustee may—
(a) insure any property which is subject to the trust against risks of loss or damage due to any event, and
(b) pay the premiums out of any income or capital funds of the trust”
(2) In section 20(1) of the Trustee Act (Northern Ireland) 1958 (c. 23) (application of insurance money) omit “whether by fire or otherwise”.
(3) The amendments made by this section apply in relation to trusts whether created before or after its commencement.
38.—(1) Subject to the following provisions of this section, this Act applies in relation to a personal representative administering an estate according to the law as it applies to a trustee carrying out a trust for beneficiaries.
(2) For this purpose this Act is to be read with the appropriate modifications and in particular—
(a) references to the trust instrument are to be read as references to the will,
(b) references to a beneficiary or to beneficiaries, apart from the reference to a beneficiary in section 8(1)(b), are to be read as references to a person or the persons interested in the due administration of the estate;
(c) the reference to a beneficiary in section 8(1)(b) is to be read as a reference to a person who under the will of the deceased or under the law relating to intestacy is beneficially interested in the estate.
(3) Remuneration to which a personal representative is entitled under section 28 or 29 is to be treated as an administration expense for the purposes of—
(a) section 30(3) of the Administration of Estates Act (Northern Ireland) 1955 ( c.24) (order in which estate to be paid out), and
(b) any provision giving reasonable administration expenses priority over the preferential debts listed in Schedule 4 to the Insolvency (Northern Ireland) Order 1989 (NI 19).
(4) Nothing in subsection (3) is to be treated as affecting the operation of the provisions mentioned in paragraphs (a) and (b) of that subsection in relation to any death occurring before the commencement of this section.
39.—(1) In this section “pension scheme” means an occupational pension scheme (within the meaning of the Pension Schemes (Northern Ireland) Act 1993 (c. 49)) established under a trust and subject to the law of Northern Ireland.
(2) Part I does not apply in so far as it imposes a duty of care in relation to—
(a) the functions described in paragraphs 1 and 2 of Schedule 1, or
(b) the functions described in paragraph 3 of that Schedule to the extent that they relate to trustees—
(i) authorising a person to exercise their functions with respect to investment, or
(ii) appointing a person to act as their nominee or custodian.
(3) Nothing in Part II or III applies to the trustees of any pension scheme.
(4) Part IV applies to the trustees of a pension scheme subject to the restrictions in subsections (5) to (8).
(5) The trustees of a pension scheme may not under Part IV authorise any person to exercise any functions relating to investment as their agent.
(6) The trustees of a pension scheme may not under Part IV authorise a person who is—
(a) an employer in relation to the scheme, or
(b) an associate of or connected with such an employer,
to exercise any of their functions as their agent.
(7) For the purposes of subsection (6)—
(a) “employer”, in relation to a scheme, has the same meaning as in Part II of the Pensions (Northern Ireland) Order 1995 (NI 22);
(b) Articles 4 and 7 of the Insolvency (Northern Ireland) Order 1989 (NI 19) apply for the purpose of determining whether a person is an associate of or connected with an employer.
(8) Sections 16 to 20 (powers to appoint nominees and custodians) do not apply to the trustees of a pension scheme.
40.—(1) Parts II to IV do not apply to trustees of authorised unit trusts.
(2) “Authorised unit trust” means a unit trust scheme in the case of which an order under section 78 of the Financial Services Act 1986 (c. 60) or section 243 of the Financial Services and Markets Act 2000 (c. 8) is in force.
41. Parts II to IV do not apply to trustees managing a fund under a common investment scheme made under section 25 of the Charities Act (Northern Ireland) 1964 (c. 33), other than such a fund the trusts of which provide that property is not to be transferred to the fund except by or on behalf of a charity the trustees of which are the trustees appointed to manage the fund.
42. This Act binds the Crown to the full extent authorised or permitted by the constitutional laws of Northern Ireland.
43.—(1) In this Act—
“asset” includes any right or interest;
“asset management function” has the meaning given in section 15(5);
“charitable trust” means a trust under which property is held for charitable purposes and “charitable purposes” has the same meaning as in the Charities Act (Northern Ireland) 1964 (c. 33);
“custodian” has the meaning given by section 17(2);
“the duty of care” has the meaning given by section 1(2);
“the general power of investment” has the meaning given by section 3(2);
“personal representative” has the same meaning as in the Trustee Act (Northern Ireland) 1958 (c. 23);
“settled land” has the same meaning as in the Settled Land Act 1882 (c. 38);
“statutory provision” has the same meaning as in section 1(f) of the Interpretation Act (Northern Ireland) 1954 (c. 33);
“trust corporation” has the same meaning as in the Trustee Act (Northern Ireland) 1958 (c. 23);
“trust funds” means income or capital funds of the trust.
(2) For the purposes of this Act, a statutory provision is not to be regarded as being, or as being part of, a trust instrument.
44.—(1) The statutory provisions set out in Schedule 2 shall have effect subject to the minor and consequential amendments specified in that Schedule.
(2) The Department of Finance and Personnel may by order make such amendments of any statutory provision as appears to it appropriate in consequence of or in connection with Part II or III.
(3) An order under subsection (2) —
(a) may contain such transitional provisions and savings as the Department thinks fit, and
(b) shall be subject to negative resolution.
(4) Schedule 3 (transitional provisions and savings) shall have effect.
(5) The statutory provisions set out in the first column of Schedule 4 are repealed to the extent specified in the second column of that Schedule.
45.—(1) Sections 1 to 44 of, and the Schedules to, this Act shall come into operation on such day or days as the Department of Finance and Personnel may by order appoint.
(2) An order under subsection (1) may contain such transitional provisions and savings as the Department of Finance and Personnel considers appropriate in connection with the order.
46. This Act may be cited as the Trustee Act (Northern Ireland) 2001.
Trustee Act (Northern Ireland) 2001