Hong Kong Ordinances

TRUSTEE ORDINANCE - SECT 37

Power of appointing new or additional trustees

(1) Where a trustee, either original or substituted, and whether appointed by
a court or otherwise, is dead, or remains out of Hong Kong for more than 12
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, or is a person under the age of 21 years, then,
subject to the restrictions imposed by this Ordinance 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 the Hong Kong, desiring to be discharged, refusing, or being
        unfit or being incapable, or being a person under the age of 21 years,
        as aforesaid. (Amended 32 of 1990 s. 9; 9 of 1993 s. 7)

(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, but subject to the
restrictions imposed by this Ordinance on the number of trustees.

(3) Where a corporation being a trustee is or has been dissolved, either
before or after the commencement of this Ordinance, 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 subsection (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 3 trustees (none of them being a trust  corporation)
either original or substituted 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, may, by writing,
        appoint another person or other persons to be an additional trustee or
        additional trustees, but it shall not be obligatory to appoint any
        additional trustee, unless the instrument, if any, creating the trust,
        or any statutory enactment provides to the contrary, nor shall the
        number of trustees be increased beyond 4 by virtue of any such
        appointment.

(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 lunatic or person of unsound mind, being a trustee, is also
entitled in possession to some beneficial 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
court to make the appointment. [cf. 1925 c.19 s.36 U.K.]