Acts and Regulations

2015, c.21 - Trustees Act

Section 46
Disposition versions

Full text
Power to pay amount from capital
46(1)Subject to this section and to any interest or charge affecting the trust property, if property is held in trust for an individual for any interest in capital, the trustees may pay an amount in respect of the individual from the capital of the trust, as the trustees consider reasonable in the circumstances:
(a) if the individual is a minor, towards the individual’s past, present or future maintenance, education, benefit or advancement in life;
(b) if the individual has reached the age of majority, towards the individual’s benefit;
(c) if the individual has a child or spouse and the trustees consider the payment to be to the benefit of the individual,
(i) towards the child’s past, present or future maintenance, education, benefit or advancement in life, or
(ii) towards the spouse’s benefit.
46(2)In order to pay an amount under subsection (1), the trustees may
(a) create a security interest in a capital asset of the trust, or
(b) sell, lease or otherwise dispose of a capital asset of the trust.
46(3)The trustees may pay an amount under subsection (1) or exercise the power under subsection (2) whether the interest of the individual in the capital
(a) is vested or contingent, or
(b) is in possession or in remainder or reversion.
46(4)The total of the amounts paid under subsection (1) shall not exceed the greater of
(a) half of the value of the interest of the individual, or
(b) an amount approved by the court.
46(5)If the court approves an amount under paragraph (4)(b) and the trustees pay an amount in accordance with the order, the trustees shall promptly give written notice of the following to any other beneficiary who, at the time of the payment of the amount, is entitled to receive income from the capital from which the amount was paid:
(a) the terms of the order made by the court under paragraph (4)(b); and
(b) the amount paid in accordance with the order.
46(6)The trustees may not pay an amount under subsection (1)
(a) unless the income or accumulated surplus income that is available under the terms of the trust for the maintenance, education, benefit or advancement in life of the individual or of the individual’s child or spouse is insufficient, or
(b) if the payment is detrimental to the pecuniary interest of a person who is entitled to a prior life or other interest, whether vested or contingent, in the amount to be paid, unless
(i) the person is of full capacity and consents in writing to the payment, or
(ii) the person is not of full capacity and the court approves the payment, on application by the trustees.
46(7)If an amount is paid under subsection (1) in respect of an individual, the individual’s interest in the capital of the trust shall be reduced by that amount.
46(8)If the individual referred to in subsection (7) does not have a vested interest in the capital of the trust when the amount is paid or applied under subsection (1), the reduction under subsection (7) is to be made when that interest is vested.
Power to pay amount from capital
46(1)Subject to this section and to any interest or charge affecting the trust property, if property is held in trust for an individual for any interest in capital, the trustees may pay an amount in respect of the individual from the capital of the trust, as the trustees consider reasonable in the circumstances:
(a) if the individual is a minor, towards the individual’s past, present or future maintenance, education, benefit or advancement in life;
(b) if the individual has reached the age of majority, towards the individual’s benefit;
(c) if the individual has a child or spouse and the trustees consider the payment to be to the benefit of the individual,
(i) towards the child’s past, present or future maintenance, education, benefit or advancement in life, or
(ii) towards the spouse’s benefit.
46(2)In order to pay an amount under subsection (1), the trustees may
(a) create a security interest in a capital asset of the trust, or
(b) sell, lease or otherwise dispose of a capital asset of the trust.
46(3)The trustees may pay an amount under subsection (1) or exercise the power under subsection (2) whether the interest of the individual in the capital
(a) is vested or contingent, or
(b) is in possession or in remainder or reversion.
46(4)The total of the amounts paid under subsection (1) shall not exceed the greater of
(a) half of the value of the interest of the individual, or
(b) an amount approved by the court.
46(5)If the court approves an amount under paragraph (4)(b) and the trustees pay an amount in accordance with the order, the trustees shall promptly give written notice of the following to any other beneficiary who, at the time of the payment of the amount, is entitled to receive income from the capital from which the amount was paid:
(a) the terms of the order made by the court under paragraph (4)(b); and
(b) the amount paid in accordance with the order.
46(6)The trustees may not pay an amount under subsection (1)
(a) unless the income or accumulated surplus income that is available under the terms of the trust for the maintenance, education, benefit or advancement in life of the individual or of the individual’s child or spouse is insufficient, or
(b) if the payment is detrimental to the pecuniary interest of a person who is entitled to a prior life or other interest, whether vested or contingent, in the amount to be paid, unless
(i) the person is of full capacity and consents in writing to the payment, or
(ii) the person is not of full capacity and the court approves the payment, on application by the trustees.
46(7)If an amount is paid under subsection (1) in respect of an individual, the individual’s interest in the capital of the trust shall be reduced by that amount.
46(8)If the individual referred to in subsection (7) does not have a vested interest in the capital of the trust when the amount is paid or applied under subsection (1), the reduction under subsection (7) is to be made when that interest is vested.