LAWS OF GOLD COAST

PUBLIC TRUSTEE ORDINANCE, 1952 (NO. 24 OF 1952)

ARRANGEMENT OF SECTIONS

Section

1. Short title and commencement.

2. Interpretation.

ESTABLISHMENT OF PUBLIC TRUSTEE.

3. Office of Public Trustee.

OFFICERS.

4. Officers.

5. Officer holding office of Public Trustee may appear in court in person.

POWERS AND DUTIES OF PUBLIC TRUSTEE.

6. General powers and duties of Public Trustee.

7. Acceptance of charitable trust.

8. Custodian Trustee.

AS CUSTODIAN TRUSTEE.

9. Appointment of Public Trustee to be trustee or executor.

AS AN ORDINARY TRUSTEE.

10. Power of Court to settle the beneficial interest of a lunatic.

11. Removal of Trustee by Court.

12. Granting probate to Public Trustee.

13. Transfer by executor after probate to Public Trustee.

14. Appointment by Court of Public Trustee in place of executor or administrator.

15. Powers of Public Trustee on obtaining grant of probate or letters of administration.

16. Public Trustee may apply for appointment in case of person not sui juris.

LIABILITY AND FEES.

17. Liability of general revenue.

18. Officer holding office of Public Trustee may be exempted by the Court from personal liability.

19. Fees charged by Public Trustee.

SUPPLEMENTAL PROVISIONS.

20. Appeal to Court from Public Trustee.

21. Mode of action of Public Trustee.

INVESTIGATION AND AUDIT OF TRUST ACCOUNTS.

22. Investigation and audit of trust accounts.

REGULATIONS.

23. Power to make regulations.

GOLD COAST.

NO. 24 OF 1952.

DATE OF ASSENT

Assented to in Her Majesty's Name and on Her Majesty's behalf this 2nd day of July, 1952.

C. N. ARDEN-CLARKE

Governor.

AN ORDINANCE to provide for the appointment of a Public Trustee and to amend the Law relating to the Administration of Trusts.

Date of Commencement. [5th July, 1952.]

BE IT ENACTED by the Governor of the Gold Coast with the advice and consent of the Legislative Assembly thereof, as follows:—

Section 1—Short Title and Commencement.

This Ordinance may be cited as the Public Trustee Ordinance, 1952, and shall come into force on such day as the Governor may by notice in the Gazette appoint.

Section 2—Interpretation.

In this Ordinance, unless the context otherwise requires—

"Court" means the Supreme Court;

"expenses" includes costs and charges;

"letters of administration" means letters of administration of the estate and effects of a deceased person, whether general or with a will annexed, or limited either in time or otherwise;

"lunatic" includes every person adjudged a lunatic under the provisions of the Lunatic Asylum Ordinance and every person with regard to whom it is proved to the satisfaction of the Court that such person is through mental infirmity arising from disease or age incapable of managing his affairs;

"private trustee" means a trustee other than the Public Trustee;

"trust" includes an executorship or administratorship, guardianship of infants, or the office of committee or receiver of the estate of any person incapable of managing his own affairs; and "trustee" shall be construed accordingly;

"trust property" includes all property in the possession or under the control wholly or partly of the Public Trustee by virtue of any trust.

ESTABLISHMENT OF PUBLIC TRUSTEE.

Section 3—Office of Public Trustee.

(1) The office of Public Trustee is hereby created.

(2) The Public Trustee shall be a corporation sole under that name, with perpetual succession and an official seal, and may sue and be sued under the above name like any other corporation sole, but any instrument sealed by him shall not, by reason of his using a seal, be rendered liable to a higher stamp duty than if he were an individual.

OFFICERS.

Section 4—Officers.

(1) The Governor may appoint a fit person to the office of Public Trustee, who shall hold office during pleasure.

(2) The Governor may appoint such persons to be officers of the Public Trustee as he considers necessary for the purposes of this Ordinance.

Section 5—Officer Holding Office of Public Trustee may Appear in Court in Person.

The person appointed to the office of Public Trustee shall be entitled to appear in court in person in any proceedings in which the Public Trustee is a party.

POWERS AND DUTIES OF PUBLIC TRUSTEE.

Section 6—General Powers and Duties of Public Trustee.

(1)  Subject to and in accordance with the provisions of this Ordinance and the regulations made hereunder, the Public Trustee may, if he thinks fit —

(a) act as an ordinary trustee;

(b) act as a custodian trustee;

(c) be appointed trustee by the Court.

(2) Subject to the provisions of this Ordinance and the regulations made hereunder, the Public Trustee may act either alone or jointly with any person or body of persons in any capacity to which he is appointed in pursuance of this Ordinance, and shall have all the same powers, duties and liabilities, and be entitled to the same rights and immunities and be subject to the control and orders of the Court as a private trustee, committee or receiver acting in the same capacity.

(3) The Public Trustee may decline, either absolutely or except on the prescribed conditions, to accept any trust, but he shall not decline to accept any trust on the ground only of the small value of the trust property.

(4) The Public Trustee shall not accept any trust which involves the management or carrying on of any business, except in the cases in which he is authorised to do so by regulations made under this Ordinance, nor any trust under a deed of arrangement for the benefit of creditors nor the administration of any estate known or believed by him to be insolvent.

Section 7—Acceptance of Charitable Trust.

The Public Trustee may accept trusts which are exclusively for religious or charitable purposes.

AS CUSTODIAN TRUSTEE.

Section 8—Custodian Trustee.

(1) Subject to regulations under this Ordinance the Public Trustee may, if he consents to act as such, and whether or not the number of trustees has been reduced below the original number, be appointed to be custodian trustee of any trust —

(a) by order of the Court made on the application of any person on whose application the Court may order the appointment of a new trustee; or

(b) by the testator, settlor, or other creator of any trust; or

(c) by the person having power to appoint new trustees.

(2) Where the Public Trustee is appointed to be custodian trustee of any trust —

(a) the trust property shall be transferred to the custodian trustee as if he were sole trustee, and for that purpose vesting orders may, where necessary, be made by the Court;

(b) the management of the trust property and the exercise of any power or discretion exercisable by the trustees under the trust shall remain vested in the trustees other than the custodian trustee (which trustees are hereinafter referred to as the managing trustees);

(c) as between the custodian trustee and the managing trustees, and subject and without prejudice to the rights of any other persons, the custodian trustee shall have the custody of all securities and documents of title relating to the trust property, but the managing trustees shall have free access thereto and be entitled to take copies thereof or extracts therefrom;

(d) the custodian trustee shall concur in and perform all acts necessary to enable the managing trustees to exercise their powers of management or any other power or discretion vested in them (including the power to pay money or securities into court), unless the matter in which he is requested to concur is a breach of trust, or involves a personal liability upon him in respect of calls or otherwise, but, unless he so concurs, the custodian trustee shall not be liable for any act or default on the part of the managing trustees or any of them;

(e) all sums payable to or out of the income or capital of the trust property shall be paid to or by the custodian trustee:

Provided that the custodian trustee may allow the dividends and other income derived from the trust property to be paid to the managing trustees or to such person as they direct, or into such bank to the credit of such person as they may direct, and in such case shall be exonerated from seeing to the application thereof and shall not be answerable for any loss or misapplication thereof;

(f) the power of appointing new trustees, when exercisable by the trustees, shall be exercisable by the managing trustees alone, but the custodian trustee shall have the same power of applying to the Court for the appointment of a new trustee as any other trustee;

(g) in determining the number of trustees for the purposes of any Act of the Imperial Parliament or Ordinance, the custodian trustee shall not be reckoned as a trustee;

(h) the custodian trustee, if he acts in good faith, shall not be liable for accepting as correct and acting upon the faith of any written statement by the managing trustees, as to any birth, death, marriage, or other matter of pedigree or relationship, or other matter of fact, upon which the title to the trust property or any part thereof may depend, nor for acting upon any legal advice obtained by the managing trustees independently of the custodian trustee;

(i) the Court may, on the application of either the custodian trustee, or any of the managing trustees, or of any beneficiary, and on proof to its satisfaction that it is the general wish of the beneficiaries, or that on other grounds it is expedient, to terminate the custodian trusteeship make an order for that purpose, and the Court may thereupon make such vesting orders and give such directions as in the circumstances may seem to the Court to be necessary or expedient.

(3) The provisions of this section shall apply in like manner as to the Public Trustee to any banking or insurance company or other body corporate entitled by regulations made under this Ordinance to act as custodian trustee, with power for such company or body corporate to charge and retain or pay out of the trust property fees not exceeding the fees chargeable by the Public Trustee as custodian trustee.

AS AN ORDINARY TRUSTEE

Section 9—Appointment of Public Trustee to be Trustee, or Executor.

(1) The Public Trustee may by that name, or any other sufficient description, be appointed to be trustee of any will or settlement or other instrument creating a trust or to perform any trust or duty belonging to a class which he is authorised by regulations made under this Ordinance to accept, and may be so appointed whether the will or settlement or instrument creating the trust or duty was made or came into operation before or after the commencement of this Ordinance and either as an original or as a new trustee, or as an additional trustee, in the same cases, and in the same manner, and by the same persons or court, as if he was a private trustee, with this addition, that, though the trustees originally appointed were two or more, the Public Trustee may be appointed sole trustee.

(2) Where the Public Trustee has been appointed a trustee of any trust, a co-trustee may retire from the trust notwithstanding that there are not more than two trustees.

(3) The Public Trustee shall not be so appointed either as a new or additional trustee where the will, settlement or other instrument creating the trust or duty contains a direction to the contrary, unless the Court otherwise order.

(4) Notice of any proposed appointment of the Public Trustee, either as a new or additional trustee, shall, where practicable, be given in the prescribed manner to all persons beneficially interested who are resident in the Gold Coast and whose addresses are known to the persons proposing to make the appointment, or, if such beneficiaries are infants, to their guardians.

(5) If any person to whom such notice has been given within twenty-one days from the receipt of the notice applies to the Court, the Court may, if having regard to the interest of all the beneficiaries it considers it expedient to do so, make an order prohibiting the appointment being made:

Provided that a failure to give any such notice shall not invalidate any appointment made under this section.

Section 10—Power of Court to Settle the Beneficial Interest of A Lunatic.

(1) Whether the Public Trustee is or is not appointed a committee or receiver of a lunatic, he may apply to the Court to direct a settlement of the property of a lunatic under this section.

(2) Upon such application, the Court may direct a settlement to be made of the property of a lunatic, or any part thereof or any interest therein, on such trusts and subject to such powers and provisions as the Court may deem expedient, and in particular may give such directions —

(a) where the property has been acquired under a settlement, a will or an intestacy, or represents property so acquired; or

(b) where by reason of any change in the law of intestacy or of any change in circumstances since the execution by the lunatic of a testamentary disposition, or of any absence of information at the time of such execution, or on account of the former management of the property or the expenditure of money in improving or maintaining the same or for any other special reason the Court is satisfied that any person might suffer an injustice if the property were allowed to devolve as undisposed of on the death intestate of the lunatic or under any testamentary disposition executed by him.

(3) The Court may direct the committee or receiver of the lunatic or any trustee for him, to execute any vesting instrument, trust instrument, conveyance (including a disentailing assurance) or other instrument, and to do any other act or thing which may be required for giving effect to the settlement, in the name and on behalf of the lunatic and, for that purpose, may make a vesting order or appoint a person to convey; and any settlement approved by the court shall be as effectual and binding on all persons interested as if the same had been made by the lunatic while of full capacity.

(4) This section applies whether or not the lunatic has executed a testamentary disposition and notwithstanding that it is not known whether he has executed such a disposition or not, but does not apply when he is an infant.

(5)(a) Any person who under any enactment for the time being in force relating to the administration of property has a spes successionis (whether under any testamentary disposition which is known to exist or in the event of the intestacy of the lunatic) or an interest in the property of the lunatic or in any part thereof, as well as the committee or receiver and any other person who may be authorised by rules made under this section, may request the Public Trustee to apply to the Court under this section and if the Public Trustee shall neglect or refuse so to do, such person may himself apply to the Court under this section provided that notice of his application shall be served on the Public Trustee who may appear upon the hearing of the application;

(b) Where the devolution of the property of the lunatic would be subject to native law and custom and would not pass under any enactment for the time being in force relating to the administration of property, any person who would have a spes successionis according to native law and custom shall have the same right as a person who would have a spes successionis under paragraph (a) of this subsection.

(6) Subject to making due provision for the maintenance of the lunatic in accordance with his station in life, whether out of the capital or income of the property settled or other property or partly in one way and partly in another, and to providing, by means of a power of appointment or revocation, or otherwise, for the possibility of the lunatic recovering full capacity, the Court may, in making any order under this section, have regard to —

(a) the manner in which the property has been settled or dealt with on former occasions;

(b) in the case of land or houses built thereon the claims of relatives, employees or dependants to the use or occupation thereof, and the expediency of settling personal estate to devolve therewith;

(c) the maintenance or education of any illegitimate children of the lunatic and the maintenance of their mother or mothers;

(d) the maintenance of any wife married according to native law and custom who would not have a spes successionis under the preceding subsection, or the maintenance of the parents or natural parents of the lunatic;

(e) the continuation or provision of any pensions, and the application of any part of the income for charitable purposes;

(f) the provisions of any testamentary disposition of the lunatic;

(g) the expediency of providing for —

(i) jointures, portions, and other annual or capital charges and powers to create the same;

(ii) discretionary trusts, trusts for affecting or maintaining policies of insurance, powers of appointment, sinking funds for making good loss by fire (in lieu of, or in addition to, insurance) or for any other purpose;

(iii) the extension of any statutory powers of investment, management or otherwise;

(iv) the manner in which any costs are to be raised and paid, whether out of the settled property or otherwise;

(v) any other matter or thing which, having regard to the nature of the settlement, or the property to be settled, and the management, development, and enjoyment thereof, and to the persons who are to take, either successively or otherwise, the Court may consider material.

(7) In this section "testamentary disposition" means an instrument executed by the lunatic while of full testamentary capacity, which, if unrevoked, might, on his death, be proved as a will or codicil;  and the Court may act on such evidence as to the existence or absence of a testamentary disposition as it thinks fit.

(8) At any time before the death of the lunatic the Court may, as respects any property remaining subject to the trusts of a settlement made under this section, on being satisfied that any material fact was not disclosed to the Court when the settlement was made, or on account of any substantial change in circumstances, by order vary the settlement in such manner as it thinks fit and give any consequential directions.

Cap. 4.

(9) The Rules Committee, established under the provisions of section 107 of the Courts Ordinance, may make rules for giving effect to the provisions of this section and in particular for compelling information to be furnished respecting, and production of, testamentary dispositions, and the lodgment thereof in Court, or respecting any person who might receive a benefit under a settlement directed by the Court under this section, or for prescribing what notices, if any, of the proceedings are to be served, for dispensing with such notices, and, when necessary, for making representation orders.

Section 11—Removal of Trustee by Court.

The Court may remove a private trustee if the Court is satisfied that the continuance of the existing trustee in office may be detrimental to the execution of the trust notwithstanding that misconduct or maladministration has not been proved against him.

Section 12—Granting Probate to Public Trustee.

(1) If, in pursuance of any regulation made under this Ordinance, the Public Trustee is authorised to accept by that name probates of wills or letters of administration, the Court may grant probate of a will or letters of administration to the Public Trustee by that name.

(2) For such purpose the Court shall consider the Public Trustee as in law entitled equally with any other person or class of persons to obtain the grant of letters of administration, save that the consent or citation of the Public Trustee shall not be required for the grant of letters of administration to any other person, and that, as between the Public Trustee and the widower, widow or next-of-kin of the deceased, the widower, widow or next-of-kin shall be preferred, unless for good cause shown to the contrary.

Section 13—Transfer by Executor After Probate to Public Trustee.

(1) Any executor who has obtained probate or any administrator who has obtained letters of administration and notwithstanding he has acted in the administration of the deceased's estate, may, with the sanction of the Court, and after such notice to the persons beneficially interested as the Court directs, transfer such estate to the Public Trustee for administration either solely or jointly with the continuing executors or administrator, if any.

(2) The order of the Court sanctioning such transfer shall, subject to this Ordinance, give to the Public Trustee all the powers of such executor and administrator.

(3) Such executor and administrator shall not be in any way liable in respect of any act or default in reference to such estate subsequent to the date of such order, other than the act or default of himself or of persons other than himself for whose conduct he is in law responsible.

Section 14—Appointment by Court of Public Trustee in Place of Executor or Administrator.

The Court may, on the application of any person beneficially interested, appoint the Public Trustee, if sufficient cause is shown, in place of all or any existing executors or administrators or of any guardian of infants, or committee or receiver of a person incapable of managing his own affairs.

Section 15—Powers of Public Trustee on Obtaining Grant of Probate or Letters of Administration.

The order of the Court granting probate or letters of administration to the Public Trustee sanctioning the transfer to the Public Trustee, or appointment or the Public Trustee as executor or administrator, of an estate shall, subject to this Ordinance, give to the Public Trustee all the powers of the Administrator-General under the Administrator-General Ordinance, 1952:

Proviso

Provided that where at the time of the transfer to, or appointment of the Public Trustee, the estate is fully administered and only the residue is transferred, the Public Trustee shall not be entitled to the remuneration allowed to the Administrator-General when administering estates

Section 16—Public Trustee may Apply for Appointment in Case of Person Not Sui Juris.

In any case where the Public Trustee may be appointed by the Court under subsection (1) of section 6 or subsection (1) of section 8 of this Ordinance, when the persons beneficially interested are minors, or otherwise incapacitated from managing their own affairs, the Public Trustee may himself apply to be appointed.

LIABILITY AND FEES.

Section 17—Liability of General Revenue.

The revenues of the Gold Coast shall be liable to make good all sums required to discharge any liability which the Public Trustee, if he were a private trustee, would be personally liable to discharge, except where the liability is one to which neither the Public Trustee nor any of his officers has in any way contributed, and which neither he nor any of his officers could by the exercise or reasonable diligence have averted, and in that case the Public Trustee shall not, nor shall the revenues of the Gold Coast, be subject to any liability.

Section 18—Officer Holding Office of Public Trustee May be Exempted by The Court from Personal Liability.

In all cases where the revenues of the Gold Coast have to be utilised under the provisions of section 17 of this Ordinance, it shall be lawful for the Court, if it appears that the person holding the office of Public Trustee has acted honestly and ought fairly to be excused for the breach of trust or other act or omission by which the liability was incurred and for omitting to obtain the directions of the Court in the matter in which such liability was incurred, to relieve such person either wholly or partly from personal liability for the same under this Ordinance.

Section 19—Fees Charged by Public Trustee.

(1) There shall be charged in respect of the duties of the Public Trustee such fees, whether by way of percentage or otherwise, as the Governor in Council may fix.

(2) Any expenses which might be retained or paid out of the trust property, if the Public Trustee was a private trustee, shall be so retained or paid, and the fees shall be retained or paid in the like manner as and in addition to such expenses.

(3) Such fees shall be paid into the Treasury.

(4) The incidence of the fees and expenses under this section as between capital and income shall be determined by the Public Trustee.

SUPPLEMENTAL PROVISIONS

Section 20—Appeal to Court from Public Trustee.

A person aggrieved by any act or omission or decision of the Public Trustee in relation to any trust may apply to the Court, and the Court may make such order in the matter as the Court thinks just.

Section 21—Mode of Action of Public Trustee.

(1) The Public Trustee shall not, nor shall any of his officers, act under this Ordinance for reward, except as provided by this Ordinance.

(2) The Public Trustee may, subject to the regulations made under this Ordinance, employ for the purposes of any trust such legal practitioners, bankers, accountants and brokers, or other persons as he considers necessary.

(3) In determining the persons to be so employed in relation to any trust the Public Trustee shall have regard to the interests of the trust, but subject to this shall, whenever practicable, take into consideration the wishes of the creator of the trust and of the other trustees, if any, and of the beneficiaries, either expressed or as implied by the practice of the creator of the trust, or in the previous management of the trust.

(4) On behalf of the Public Trustee such person as is prescribed may take any oath, make any declaration, verify any account, give personal attendance at any court or place, and do any act or thing whatsoever which the Public Trustee is required or authorised to take, make, verify, give or do.

(5) Where any bond or security would be required from a private person upon the grant to him of administration, or upon his appointment to act in any capacity, the Public Trustee, if administration is granted to him or if he is appointed to act in such capacity as aforesaid, shall not be required to give such bond or security, but shall be subject to the same liabilities and duties as if he had given such bond or security.

(6) The entry of the Public Trustee by that name in the books of a company shall not constitute notice of a trust, and a company shall not be entitled to object to enter the name of the Public Trustee on its books by reason only that the Public Trustee is a corporation, and, in dealings with property, the act that the person or one of the persons dealt with is the Public Trustee, shall not of itself constitute notice of a trust.

INVESTIGATION AND AUDIT OF TRUST ACCOUNTS

Section 22—Investigation and Audit of Trust Accounts.

(1) Subject to regulations made under this Ordinance and unless the Court otherwise orders, the condition and accounts of any trust shall, on an application being made and notice thereof given in the prescribed manner by any trustee or beneficiary, be investigated and audited by such legal practitioner or public accountant as may be agreed on by the applicant and the trustees or, in default of agreement, by the Public Trustee or some person appointed by him.

(2) Except with the leave of the Court such an investigation or audit shall not be required within twelve months after any such previous investigation or audit and a trustee or beneficiary shall not be appointed under this section to make an investigation or audit.

(3) The person making the investigation or audit, hereinafter called the auditor, shall have a right of access to the books, accounts and vouchers of the trustees, and to any securities and documents of title held by them on account of the trust, and may require from them such information and explanation as are necessary for the performance of his duties.

(4) Upon the completion of the investigation and audit the auditor shall forward to the applicant and to every trustee a copy of the accounts, together with a report thereon, and a certificate signed by him to the effect that the accounts exhibit a true view of the state of the affairs of the trust and that he has had the securities of the trust fund investments produced to and verified by him or, as the case may be, that such accounts are deficient in such respects as are specified in such certificate.

(5) Every beneficiary under the trust shall, subject to regulations made under this Ordinance, be entitled at all reasonable times to inspect and take copies of the accounts, report and certificate, and, at his own expense, to be furnished with copies thereof or extracts therefrom.

(6) The auditor may be removed by order of the Court, and, if any auditor is removed, or resigns, or dies, or becomes incapable of acting before the investigation and audit is completed, a new auditor may be appointed in his place in like manner as the original auditor.

(7) The remuneration of the auditor and the other expenses of the investigation and audit shall be such as may be prescribed, and shall, unless the Public Trustee otherwise directs, be borne by the estate.

(8) In the event of the Public Trustee so directing, he may order such expenses to be borne by the applicant or by the trustee personally or partly by them and partly by the applicant.

(9) If the person having the custody of any documents to which the auditor has a right of access under this section fails or refuses to allow him to have access thereto or in any wise obstructs the investigation or audit, the auditor may apply to the Court, and thereupon the Court shall make such order as it thinks just.

(10) Any person who in any statement of accounts, report or certificate required for the purposes of this section wilfully makes a statement false in any material particular shall be liable to a fine not exceeding one hundred pounds or to imprisonment for a term not exceeding twelve months or to both such fine and imprisonment.

REGULATIONS.

Section 23—Power to Make Regulations.

(1) The Governor in Council may make regulations for carrying into effect the objects of this Ordinance, and in particular for all or any of the following purposes:—

(a) prescribing the trusts or duties which the Public Trustee is authorised to accept or undertake, and the security, if any, to be given by the Public Trustee and his officers;

(b) the transfer to and from the Public Trustee of any property;

(c) authorising the deposit or investment of trust funds in any bank or upon the purchase of any security, notwithstanding that funds may not be so deposited or invested by a private trustee;

(d) the accounts to be kept and the audit thereof;

(e) the establishment and regulation of any branch office;

(f) excluding any trusts from the operation of this Ordinance or any part thereof;

(g) specifying the corporate bodies entitled to act as custodian trustees;

(h) the form and manner in which notices under this Ordinance shall be given.

(2) If the regulations require a declaration to be made for any purpose, a person who makes such declaration knowing the same to be untrue in any material particular shall be guilty of an offence and liable to a fine not exceeding one hundred pounds or to imprisonment for a term not exceeding twelve months or to both such fine and imprisonment.