- Assented to on 6 November 1967
- Commenced on 10 November 1967
- [This is the version of this document at 31 December 2014.]
- [Note: This version of the Act was revised and consolidated in the Fifth Revised Edition of the Laws of Malawi (L.R.O. 1/2018), by the Solicitor General and Secretary for Justice under the authority of the Revision of the Laws Act.]
Part I – Preliminary
1. Short titleThis Act may be cited as the Trustee Act.
2. Interpretation and trust corporation
3. Application of Act
Part II – Investment
4. Powers of investment of trustees
5. Restrictions on wider range investment
6. How proper advice to be obtained and given and responsibility of trust corporation for advice
7. Relationship between Act other powers of investment
8. Duty of trustees in choosing and retaining investments
9. Purchase at a premium of redeemable stocks; change of character of investment
10. Discretion of trusteesEvery power conferred by section 4 and section 9 shall be exercised according to the discretion of the trustee, but subject to any consent or direction required by the instrument, if any, creating the trust or by law with respect to the investment of the trust funds. A trustee may consider advice other than advice received from a trust company.
11. Power to retain investment which has ceased to be authorizedA trustee shall not be liable for breach of trust by reason only of his continuing to hold an investment which has ceased to be an investment authorized by the trust instrument or by the general law.
12. Enlargement of powers of investment
13. Investment in bearer securities
14. Loans and investments by trustees not chargeable as breaches of trust
15. Liability for loss by reason of improper investment
16. Powers supplementary to powers of trustees
17. Power to deposit money at bank and to pay calls
18. Trust property and trust funds
19. Saving for powers of CourtThe investment powers of trustees authorized by this Act shall not lessen any power of the Court to confer wider powers of investment on trustees, or affect the extent to which any such power is to be exercised.
20. Powers of Minister to amend ScheduleThe Minister of Finance may, if he considers it expedient to do so, by order published in the Gazette, delete from, vary or add to Part I or Part II of the Schedule:Provided that any such order shall not come into operation unless and until the same shall have been approved by a resolution of the National Assembly, on notice given by the Minister responsible for Finance.
Part III – General powers of trustees and personal representatives
21. Power of trustees for sale to sell by auction, etc.
22. Power to sell subject to depreciatory conditions
23. Power of trustees to give receipts
24. Power to compound liabilitiesA personal representative, or two or more trustees acting together, or, subject to the restrictions imposed in regard to receipts by sole trustee not being a trust corporation a sole acting trustee where by the instrument, if any, creating the trust, or by law, a sole trustee is authorized to execute the trusts and powers reposed in him, may, if and as he or they think fit—
25. Power to raise money by sale, mortgage, etc.
26. Protection to purchasers and mortgagees dealing with trusteesNo purchaser or mortgagee, paying or advancing money on a sale or mortgage purporting to be made under any trust or power vested in trustees, shall be concerned to see that such money is wanted, or that no more than is wanted is raised, or otherwise as to the application thereof.
27. Devolution of powers or trusts
28. Power to insure
29. Application of insurance money where policy kept up under any trust power or obligation
30. Deposit of documents for safe custodyTrustees may deposit any documents held by them relating to the trust, or to the trust property, with any bank or any other company whose business includes the undertaking of the safe custody of documents, and any sum payable in respect of such deposit shall be paid out of the income of the trust property.
31. Reversionary interests, valuations and audit
32. Power to employ agents
33. Power to concur with othersWhere an undivided share in the proceeds of sale of land directed to be sold, or in any other property, is subject to a trust, or forms part of the estate of a testator or intestate, the trustees or personal representatives may (without prejudice to the trust for sale affecting the entirety of the land and the powers of the trustees for sale in reference thereto) execute or exercise any trust or power vested in them in relation to such share in conjunction with the persons entitled to or having power in that behalf over the other share or shares, and notwithstanding that any one or more of the trustees or personal representatives may be entitled to or interested in any such other share, either in his or their own right or in a fiduciary capacity.
34. Power to delegate trusts during absence abroad
35. Power for trust corporations to act jointly as trustees and hold property as joint tenants
36. Protections against liability in respect of rents and covenants
37. Protection by means of advertisements
38. Protection in regard to noticeA trustee or personal representative acting for the purposes of more than one trust or estate shall not, in the absence of fraud, be affected by notice of any instrument, matter, fact or thing in relation to any particular trust or estate if he has obtained notice thereof merely by reason of his acting or having acted for the purposes of another trust or estate.
39. Exonerations of trustees in respect of certain powers of attorneyA trustee acting or paying money in good faith under or in pursuance of any power of attorney shall not be liable for any such act or payment by reason of the fact that at the time of the act or payment the person who gave the power of attorney was subject to any disability or bankrupt or dead, or had done or suffered, some act or dung to avoid the power, if this fact was not known to the trustee at the time of his so acting or paying:Provided that—
40. Implied indemnity of trustees
Maintenance advancement and protective trusts
41. Power to apply income for maintenance and to accumulate surplus income during a minority
42. Power of advancement
43. Protective trusts
Part IV – Appointment and discharge of trustees
44. Limitation of the number of trustees
45. Appointments of trustees of settlements and dispositions on trust for sale of land
46. Power of appointing new or additional trustees
47. Supplemental provisions as to appointment of trustees
48. Evidence as to a vacancy in a trust
49. Retirement of trustee without a new appointment
50. Vesting of trust property in new or continuing trustees
Part V – Powers of the Court
Appointment of new trustees
51. Power of Court to appoint new trustees
52. Power to authorize remunerationWhere the Court appoints a person to be a trustee either solely or jointly with another person, the Court may authorize such person to charge such remuneration for his services as trustee as the Court may think fit.
53. Powers of new trustee appointed by the CourtEvery trustee appointed by the Court shall, before as well as after the trust property becomes by law, or by assurance, or otherwise, vested in him, 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.
54. Vesting orders of landIn any of the following cases, namely—
55. Orders as to contingent rights of unborn personsWhere any interest in land is subject to a contingent right in an unborn person or class of unborn persons who, on coming into existence would, in respect thereof, become entitled to or possessed of that interest on any trust, the Court may make an order releasing the land or interest therein from the contingent right, or may make an order vesting in any person the estate or interest to or of which the unborn person or class of unborn persons would, on coming into existence, be entitled or possessed in the land.
56. Vesting order in place of conveyance by minor mortgageeWhere any person entitled to or possessed of any interest in land, or entitled to a contingent right in land, by way of security for money, is a minor, the Court may make an order vesting or releasing or disposing of the interest in the land or the right in like manner as in the case of a trustee under disability.
57. Vesting order consequential on order for sale or mortgage of landWhere any Court gives a judgment or makes an order directing the sale or mortgage of any land, every person who is entitled to or possessed of any interest in the land, or entitled to a contingent right therein, and is a party to the action or proceeding in which the judgment or order is given or made or is otherwise bound by the judgment or order, shall be deemed to be so entitled or possessed, as the case may be, as a trustee for the purposes of this Act, and the Court may, if it thinks expedient, make an order vesting the land or any part thereof for such estate or interest as the Court thinks fit in the purchaser or mortgagee or in any other person.
58. Vesting order consequential on judgment for specific performance, etc.Where a judgment is given for the specific performance of a contract concerning any interest in land, or for sale or exchange of any interest in land, or generally where any judgment is given for the conveyance of any interest in land either in cases arising out of the doctrine of election or otherwise, the Court may declare—
59. Effect of vesting orderA vesting order under any of the foregoing provisions shall in the case of a vesting order consequential on the appointment of a trustee, have the same effect—
60. Power to appoint person to conveyIn all cases where a vesting order can be made under any of the foregoing provisions, the Court may, if it is more convenient, appoint a person to convey the land or any interest therein or release the contingent right, and a conveyance or release by that person in conformity with the order shall have the same effect as an order under the appropriate provision.
61. Vesting orders as to stock and things in action
62. Vesting orders of charity propertyThe powers conferred by this Act as to vesting orders may be exercised for vesting any interest in land, stock, or thing in action in any trustee of a charity or society over which the Court would have jurisdiction upon action duly instituted, whether the appointment of the trustee was made by instrument under a power or by the Court under its general or statutory jurisdiction.
63. Vesting orders in relation to minor’s beneficial interestsWhere a minor is beneficially entitled to any property the Court may, with a view to the application of the capital or income thereof for the maintenance, education, or benefit of the minor, make an order—
64. Orders made upon certain allegations to be conclusive evidenceWhere a vesting order is made as to any land under this Act, founded on an allegation of any of the following matters namely—
Jurisdiction to make other orders
65. Power of Court to authorize dealings with trust property
66. Persons entitled to apply for orders
67. Power to give judgment in absence of a trusteeWhere in any action the Court is satisfied that diligent search has been made for any person who, in the character of trustee, is made a defendant in any action, to serve him with a process of the Court, and that he cannot be found, the Court may hear and determine the action and give judgment therein against that person in his character of a trustee as if he had been duly served, or had entered an appearance in the action, and had also appeared by his legal representative at the hearing, but without prejudice to any interest he may have in the matters in question in the action in any other character.
68. Power to charge costs on trust estateThe Court may order the costs and expenses of and incident to any application for an order appointing a new trustee, or for a vesting order, or of and incident to any such order, or any conveyance or transfer in pursuance thereof, to be raised and paid out of the property in respect whereof the same is made, or out of the income thereof, or to be borne and paid in such manner and by such persons as to the Court may seem just.
69. Power to relieve trustee from personal liabilityIf it appears to the Court that a trustee, whether appointed by the Court or otherwise, is or may be personally liable for any breach of trust, whether the transaction alleged to be a breach of trust occurred before or after the commencement of this Act, but has acted honestly and reasonably, and ought fairly to be excused for the breach of trust and for omitting to obtain the directions of the Court in the matter in which he committed such breach, then the Court may relieve him either wholly or partly from personal liability for the same.
70. Power to make beneficiary indemnify for breach of trust
71. Power to vary trusts
Payment into Court
72. Payment into Court by trustees
Part VI – General provisions
73. Application of Act to Settled Land Acts trustee
74. Trust estates not affected by trustee becoming subject to forfeitureProperty vested in any person on any trust or by way of mortgage shall not, in case of that person being declared subject to forfeiture within the meaning of the Forfeiture Act, vest in the Registrar General under that Act, but shall remain in the trustee or mortgagee, or pass to his co-trustee in right of survivorship or devolve on his personal representative as if he had not been declared subject to forfeiture:Provided that this section shall not affect the title to the property so far as relates to any beneficial interest therein of any such trustee or mortgagee.[Cap. 14:06]
75. Indemnity to banks, etc.This Act, and every order purporting to be made under this Act, shall be a complete indemnity to a bank, and to any persons for any acts done pursuant thereto, and it shall not be necessary for any bank or for any person to inquire concerning the propriety of the order, or whether the Court by which the order was made had jurisdiction to make it.
76. Rules of courtThe Chief Justice may make rules of court regulating the practice and procedure in respect of any proceedings in the Court under this Act.
77. Act binding on governmentThis Act shall bind the Government.
78. Saving and consequential provision
History of this document
31 December 2014 this version
10 November 1967
06 November 1967