PUBLIC TRUSTEE ACT 1950

The Public Trustee shall be a corporation sole under the name "Public Trustee, Malaysia", with perpetual succession and an official seal, and may sue and be sued under the above name like any other corporation sole.

POWERS AND DUTIES OF PUBLIC TRUSTEE

act in the administration of estates of small value;

act as an ordinary trustee;

be appointed trustee by the Court.

Subject to the provisions of this Act and to the rules made thereunder, the Public Trustee may act either alone or jointly with any person or body of persons in any capacity to which he may be appointed in pursuance of this Act and shall have the same powers, duties, and liabilities, and be entitled to the same rights and immunities and be subject to the same control and orders of the Court, as a private trustee acting in the same capacity.

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.

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 may be authorized to do so by rules made under this Act, 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.

If in any pending suit or proceeding it becomes necessary to add any minor as co-plaintiff, the Court may of its own motion or on the application of the Public Trustee or any other person appoint the Public Trustee to act as next friend of such minor in such suit or proceeding.

In any suit or proceeding in which a minor is defendant or in which it becomes necessary to add a minor as co-defendant, the Court of its own motion or on the application of the Public Trustee or any other person may appoint the Public Trustee to act as guardian for the suit for such minor for the purposes of such suit or proceeding.

The Court shall not make any order under this section unless the Public Trustee has had an opportunity of being heard and provision is made to the satisfaction of the Court for the payment of the Public Trustee's costs as between solicitor and client and for the payment of any costs which may be awarded against the Public Trustee or directed to be paid by him.

In any suit or proceeding in which the Public Trustee is appointed under this section to act for a minor, no costs shall be recoverable from the Public Trustee personally or from the Government.

In this section "suit" means only an action or suit for the administration of the estate of any deceased person or of a trust, and "proceeding" means only a proceeding under the Rules of the High Court 1980.

ADMINISTRATION OF ESTATES OF SMALL VALUE

On the Public Trustee undertaking, by declaration in writing signed and sealed by him, to administer the estate, the property in the estate other than stock shall, by virtue of this Act and notwithstanding anything in any other written law contained, vest in him, and the right to transfer or call for the transfer of any stock forming part of the estate shall also vest in him, in like manner as if vesting orders had been made for the purpose by the Court under the Trustee Act 1949, and that Act shall apply accordingly:

Provided that—

As from such vesting any trustee entitled under the trust to administer the estate shall be discharged from all liability attaching to the administration, except in respect of past acts.

For the purposes of the administration the Public Trustee may exercise such of the administrative powers and authorities of the Court as may be conferred on him by rules under this Act.

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Rules shall be made under this Act for enabling the Public Trustee to take the opinion of the Court on any question arising in the course of any administration without judicial proceedings, and otherwise for making the procedure under this section simple and inexpensive.

Where proceedings have been instituted in any Court for the administration of an estate and by reason of the small value of the estate it appears to the Court that the estate can be more economically administered by the Public Trustee than by the Court or that for any other reason it is expedient that the estate should be administered by the Public Trustee instead of the Court, the Court may order that the estate shall be administered by the Public Trustee, and thereupon, subject to any directions by the Court, this section shall apply as if the administration of the estate had been undertaken by the Public Trustee in pursuance of this section.

When any trust money which is not included in the investment account of the Common Fund is normally insufficient if kept in a bank current account to earn bank interest, the money may be kept in a general banking account and any interest allowed by the bank on the daily balance of such general banking account shall be paid into the Consolidated Fund.

WHEN THE PUBLIC TRUSTEE ACTS AS AN ORDINARY TRUSTEE

Where the Public Trustee has been appointed a trustee of any trust, a co-trustee may retire from the trust under and in accordance with section 43 of the Trustee Act 1949, notwithstanding that there are not more than two trustees, and without such consents as are required by that section.

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 orders.

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 Malaysia and whose addresses are known to the persons proposing to make the appointment, or, if such beneficiaries are minors, to their guardians.

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 interests 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.

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.

Any executor who has obtained probate or any administrator who has obtained letters of administration, and notwithstanding that 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 may direct, transfer such estate to the Public Trustee for administration either solely or jointly with the continuing executors or administrator, if any.

The order of the Court sanctioning such transfer shall, subject to the provisions of this Act, give to the Public Trustee all the powers of such executor and administrator.

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.

Any investments of capital moneys belonging to any estate in the hands of the Public Trustee at the commencement of this Act and any investments thereafter coming into his hands may, subject as hereinafter provided, be taken over and included in the investment account of the Common Fund.

All investments taken over under subsection (2) shall be taken over at the market rate ruling at the date of such taking over, less any interest accrued at such date, and no such investment shall be taken over unless it is an investment permitted by law for the investment of trust funds and, in the opinion of the Board, is and is likely to continue to be readily realisable. For the purposes of this subsection interest shall be deemed to accrue from day to day and shall be apportionable in respect of time accordingly.

Any investment made on account of the Common Fund or included in its investment account shall not be made or held on account of or belong to any particular estate.

investments held by the Public Trustee which have not been taken over under section 10 (2).

The provisions of section 16 shall not apply to the moneys and investments referred to in subsection (1) of this section.

Nothing in this section contained shall be deemed to limit or restrict the liability of the Consolidated Fund under section 17.

Such rate shall be published in the month of December in each year and shall remain in force from the 1st day of January to the 31st day of December of the next ensuing year.

A rate may be prescribed for payment on capital moneys which are not payable at call.

Interest payable from the Common Fund shall be credited half yearly to the respective estates:

Provided that the Public Trustee may at his discretion credit such interest at such more frequent intervals as he may deem fit in the case of any particular estate.

The Board shall consist of seven members, as follows:

Three of the members of the Board shall form a quorum.

The Board may from time to time make by-laws for the control of its business and proceedings.

No investments shall be taken over and included in the investment account of the Common Fund as provided by section 10 (2) without the sanction of the Board.

In the month of November in each year the Board shall present to the Minister a report showing the estimated value of the capital assets of the Common Fund and the estimated revenue therefrom for the ensuing year, and shall at the same time recommend to the Minister the rate which in its opinion should be prescribed by him for the ensuing year under section 12 (1).

In the month of February in each year the Board shall give such directions to the Public Trustee as may be necessary with regard to the disposal of any balance standing to the credit of the income account of the Common Fund at the end of the preceding year after interest payable to the beneficiaries and other lawful charges have been duly debited to the said income account. Such part of such balance as the Board may direct shall be carried to the credit of a reserve fund and any excess shall be carried to the credit of the income account for the current year.

The reserve fund shall be under the control of and shall be dealt with by the Board in such manner as may be prescribed.

The capital moneys claimable by any estate shall include the moneys from such estate included in the Common Fund and, where investments have been taken over under section 10 (2) they shall also include the value of such investments as ascertained in accordance with the provisions of section 10 (3).

LIABILITY; OFFICERS AND OFFICES; FEES

The Yang di-Pertuan Agong may appoint a Deputy Public Trustee and such persons to be Assistant Public Trustees and other officers of the Public Trustee as he considers fit and necessary for the purposes of this Act and such Deputy Public Trustee and Assistant Public Trustees and other officers shall hold office upon such terms and be remunerated at such rates and in such manner as the Yang di-Pertuan Agong may determine.

The Public Trustee and every officer of the Public Trustee is hereby declared to be a public servant within the meaning of the Penal Code.

The salary or remuneration of the Public Trustee and the officers of the Public Trustee and such other expenses of executing the office of the Public Trustee or otherwise carrying this Act into effect as may be sanctioned by the Yang di-Pertuan Agong shall be paid out of the Treasury.

The Deputy Public Trustee and any Assistant Public Trustee shall have and exercise such of the powers and shall perform such of the duties of the Public Trustee under this Act as may be prescribed by rules made under this Act.

Any expenses which might be retained or paid out of the trust property if the Public Trustee were 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.

Such fees shall be paid into the Treasury.

ACT 247

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

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Application by person aggrieved SUPPLEMENTAL PROVISIONS AS TO PUBLIC TRUSTEE to court

The Public Trustee may, subject to the rules made under this Act, employ for the purposes of any trust such solicitors (or, in Sabah and Sarawak, advocates), bankers, accountants and brokers or other persons as he considers necessary.

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.

On behalf of the Public Trustee such person as may be prescribed may take any oath, make any affirmation or 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 authorized to take, make, verify, give or do.

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.

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 fact that the person or one of the persons dealt with is the Public Trustee shall not in itself constitute notice of a trust.

INVESTIGATION AND AUDIT OF TRUST ACCOUNTS

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

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 may be necessary for the performance of his duties.

Upon the completion of the investigation and audit such person 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 may be specified in such certificate.

Every beneficiary under the trust shall, subject to rules under this Act, 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.

In the event of the Public Trustee so directing, he may order that such expenses be borne by the applicant or by the trustees personally or partly by them and partly by the applicant.

The auditor may be removed by order of the Court, and, if any auditor is removed or resigns or dies or becomes bankrupt or 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.

If any 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 anywise obstructs the investigation or audit, the auditor may apply to the Court, and thereupon the Court shall make such order as it thinks fit.

The remuneration of the auditor and the other expenses of the investigation and audit shall be such as may be prescribed by rules under this Act and shall, unless the Public Trustee otherwise directs, be borne by the estate.

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 imprisonment of either description for a term not exceeding two years or to a fine not exceeding two thousand ringgit or to both.

RULES

establishing the office of Public Trustee and prescribing the trusts or duties which he is authorized to accept or undertake and the security, if any, to be given by the Public Trustee and his officers;

the transfer to and from the Public Trustee of any property;

the accounts to be kept and an audit thereof;

the establishment and regulation of any branch office;

excluding any trusts from the operation of this Act or any part thereof;

the form and manner in which notices under this Act shall be given;

the payment of interest;

the date from which interest, if allowed, is to be paid;

the management, investment and disposal of the reserve fund;

generally to carry out the provisions of sections 10 to 16 and 24.

Every rule under this Act shall be laid before the Dewan Rakyat and shall not come into operation until approved by a resolution of the Dewan Rakyat.

TRANSITIONAL AND REPEAL