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The Laws of Fiji
Last Updated: 1 December 2016

[TRU 26] Miscellaneous powers in respect of property26 

26
(1) Every trustee, in respect of any property for the time being vested in him or her, may—
  • (a)expend money subject to the same trusts for the repair, maintenance, upkeep or renovation of the property, whether or not the work is necessary for the purpose of the salvage of the property;
  • (b)subject to the rules of law applicable in such cases and to any direction of the court to the contrary, apportion the cost of the work mentioned in paragraph (a) between capital and income or otherwise among the persons entitled thereto in such manner as he or she considers equitable, with power, where the whole or part of the cost of the work is charged to capital, to recoup capital from subsequent income, if that course would be equitable having regard to all the circumstances of the case;
  • (c)expend money subject to the same trusts, but not, without the consent of the court, exceeding $10,000 for any one purpose, in the improvement or development of the property;
  • (d)where the property is land and the land may be sold or let or leased or otherwise disposed of under any power or trust vested in the trustee, subdivide the land into blocks and for that purpose construct and dedicate all such roads, streets, access ways, service lanes and footpaths, and make all such reserves, and do all such other things, and pay all such money, as he or she thinks necessary or as are required by or under any Act relating to subdivisions;
  • (e)contribute out of money subject to the same trusts such sum as he or she thinks reasonable towards the construction and maintenance of such roads, streets, access ways, service lanes and footpaths, and such sewerage, water, electricity, drainage and other works as are, in the opinion of the trustee, likely to be beneficial to the property, notwithstanding that they are intended to be constructed wholly or in part on land not subject to the same trusts;
  • (f)grant easements and enter into party wall agreements and agreements that relate to fencing, and execute all necessary documents to give effect thereto;
  • (g)pay rates, taxes, assessments, insurance premiums and other outgoings in respect of the property, out of money subject to the same trusts;
  • (h)as mortgagor or mortgagee, agree to the renewal, extension or variation of the mortgage for such period and on such terms and conditions as he or she thinks fit; but—
    • (i)the powers conferred by this paragraph may be exercised by a trustee as mortgagor for the purpose of raising additional money on the security of a mortgage of any property, where the trustee would have power under the provisions of section 39, to raise money by a mortgage of the property, and not otherwise;
    • (ii)nothing in this paragraph shall authorise any trustee to advance money on the security of any mortgage that would not be an authorised investment in respect of the amount advanced;
    • (iii)any variation of a mortgage that would require the trustee to release part of the security shall comply with the requirements of section 20; and
    • (iv)the powers conferred by this paragraph shall not be exercised in relation to a mortgage made under the powers conferred by the provisions of section 21, so as to exclude or vary any of the provisions inserted in the mortgage pursuant to subsection (2) of that section;
  • (i)make such inquiries, by way of advertisement or otherwise, as he or she thinks necessary for the purpose of ascertaining the next-of-kin or beneficiaries entitled to the property, and charge the cost of the inquiries and advertisements against the property;
  • (j)where the property includes a life policy and there is no money or insufficient money available for the payment of premiums on the policy, surrender the policy for money or accept, instead of the policy, a fully paid up policy, or vary the terms of the policy in such manner as the trustee thinks fit;
  • (k)appropriate any part of the property in or towards satisfaction of any legacy payable thereout or any share thereof (whether settled, contingent or absolute) to which any person is entitled, and for that purpose value the whole or any part of the property in accordance with the provisions of section 46 but—
    • (i)the appropriation shall not be made so as to affect adversely any specific gift; and
    • (ii)before any such appropriation is effectual, notice thereof shall be given to all persons of full age and full mental capacity who are interested in the appropriation, and to the parent or guardian of any infant who is interested in the appropriation, and to the person having the care and management of the estate of any person who is not of full mental capacity, and any such person may, within one calendar month after receipt of the notice, or, where the person to whom notice has been given is out of the jurisdiction, within such extended period as the court may, on the application of the trustee or of any person interested, allow, apply to the court to vary the appropriation, and such appropriation shall be conclusive save as otherwise directed by the court;
  • (l)where provision is made in any instrument creating a trust for payment of an annuity or other periodic payment, and notwithstanding that the annuity or payment may by the instrument be charged upon the trust property or upon any part thereof, set aside and appropriate out of property, available for payment of the annuity, and invest a sum sufficient in the opinion of the trustee at the time of appropriation to provide out of the income thereof the amount required to pay the annuity or periodic payment, and so that after the appropriation shall have been made—
    • (i)the annuitant shall have the same right of recourse to the capital and income of the appropriated sum as he or she would have had against the trust property if no appropriation had been made; and
    • (ii)the trustee may forthwith distribute the residue of the trust property and the income thereof (which residue and income shall no longer be liable for the annuity) in accordance with the trusts declared of and concerning the same; or
  • (m)do or omit all acts and things, and execute all instruments necessary to carry into effect the powers and authorities given by this Act or by or under the instrument creating the trust.
(2) Where, in the administration of any property employed in the production of income or from which income is derived, a trustee considers that, in the interests of the persons entitled or who may become entitled to the capital of the property, it is equitable to set up a depreciation or replacement fund in respect of the property or in respect of any asset comprised therein, then, notwithstanding any rule of law to the contrary, it shall be lawful for, but not obligatory upon, him or her to do so and to credit from time to time and accumulate by way of compound interest such part of the income so produced or derived as he or she considers equitable, and also the resulting income therefrom; and in any such case the fund shall follow the destination of the capital of the property and shall be subject to all the trusts, powers and provisions applicable thereto; with further power to the trustee to apply as he or she thinks fit the fund and accumulations of income in or towards the replacement, repair, maintenance, upkeep or renovation of the property or assets, or in or towards the acquisition by purchase or otherwise of property or assets of a like nature or property or assets that otherwise may advantageously be employed in conjunction with the property in producing or deriving the income as aforesaid.