Trustee Act 1898

Where a trustee, either original or substituted, and whether appointed by the Court or otherwise, is dead, or remains out of Tasmania for more than twelve 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 – the persons nominated for the purpose of appointing new trustees in such event by the instrument, if any, creating the trust; or if there is no such person or no such person able and willing to act, the surviving or continuing trustees or trustee, or the personal representatives of the last surviving or continuing trustee – may, by writing, appoint another person or other persons to be a trustee or trustees in the place of the trustee dead, remaining out of Tasmania, desiring to be discharged, refusing, or being unfit, or being incapable, as aforesaid.

On the appointment of a new trustee for the whole or any part of trust property – the number of trustees may be increased; a separate set of trustees may be appointed for any part of the trust property, whether held on trusts distinct from those relating to any other part of the trust property or not, and notwithstanding that no new trustees are to be appointed for other parts of the trust property; and any existing trustee may be appointed or remain one of such separate set of trustees, or, if only one trustee was originally appointed, then one separate trustee may be so appointed for the first-mentioned part; it shall not be obligatory to appoint more than one new trustee where only one trustee was originally appointed, or to fill up the original number of trustees where more than two trustees were originally appointed; but, except where only one trustee was originally appointed, a trustee shall not be discharged under this section from his trust unless there will be at least two trustees to perform the trust; and any assurance or thing requisite for vesting the trust property, or any part thereof, jointly in the persons who are the trustees, shall be executed or done.

Every new trustee so appointed, 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.

The provisions of this section relative 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.

This section applies only if and as far as a contrary intention is not expressed in the instrument, if any, creating the trust, and has effect subject to the terms of that instrument and to any provisions therein contained.

Nothing in this section shall give power to appoint an executor or administrator.