OCTOBER 2008

PART A, QUESTION 1
Aiman Nabila Bt.
Alwi
Nur Ashiqeen Bt.
Sultan
QUESTION
 ISSUE

Whether trustee have the power to spend the money from the
trust fund to maintain Ron and Don in addition to the fact that
they have lost their financial support from their father.
Power of maintenance refers to power to apply the income for
the maintenance, benefit and education of the minor
beneficiary. The money is for the minors living expenses ie.
Food, shelter
 LAW & ANALYSIS

Before anything, the trustee must ascertain that he has such

power.
Power can be expressly or impliedly stated in the trust instrument
or by virtue of section 36 TA 1949.
The settlor may specifically give power to trustees or may deny
the power. If the trust instrument prohibits such power, then
trustee has no such power.
Section 36 gives discretionary power to the trustees unless theres
contrary provisions in the trust instrument.
 s.36(1)(a) where trustee hold property in trust for a person,
whether vested/contingent interest
I. during the persons minority only
II. trustee may pay at trustees sole discretion (power)
III. pay parent or guardian ((valid receipt)

Section 36(1) : pay to his parent or guardian, if any or otherwise

apply for trustee can use the money for the minors benefit.
sestion 36(1) : Pay whole or part of income of that property, as may
in all circumstances, be reasonable income, not capital ; to use
portion of the whole income
Trustee have a discretion as to the amount of the maintenance.
 The proviso in section 36(1) : Trustee should take into account
other funds available and minors requirement.

In deciding whether to apply the whole or only a portion of the

income trustees should take into account these factors:
- Age of minor
- His requirements and generally to the circumstances of the case
- And , in particular to what other income if any applied for the
same purposes.
If more than one fund is available then the trustee may use only a
portion of the income.
 WILSON V. TURNER (1883)

Trustee paid income to the infant beneficiarys father

automatically without enquiring about the beneficiarys actual
needs. The father was required to return the money.
THANK YOU