THE TRUSTS ORDINANCE 1994 T H E T R U S T S O R D I N A N C E, 1 9 9 4 Arrangement of Sections 1. Short title and commencement.PART I PRELIMINARY 2. Interpretation. 3. Definition of trust. 4. Validity of trust. 5. Creation of a trust. 6. Duration of a trust and of accumulation of income. 7. Restrictions upon validity of a trust. 8. Property which may be held on trust.
PART II
THE SETTLOR, BENEFICIARIES AND PURPOSES OF A TRUST
9. Who may be the settlor of a trust.
10. Beneficiaries of a trust.
11. Nature of a beneficial interest.
12. Protective or spendthrift trusts.
13. Letters or memoranda of wishes.
14. Definition of charitable purpose.
15. Trusts for noncharitable purpose.
PART III
PROTECTORS AND TRUSTEES
16. The protector of a trust.
17. Who may be the trustee of a trust.
18. The number of trustees.
19. Appointment of new or additional trustees.
20. Appointment of trustee resident in Anguilla.
21. Renunciation of trusteeship.
22. Resignation or removal of trustees.
23. Nature of trustees' and protectors' interests.
24. Corporate trustee may act by resolution.
25. Trustees of more than one trust.
26. Dealings by trustees with third parties.
PART IV
DUTIES AND POWERS OF TRUSTEES
27. General duties of trustees.
28. Duty to supply information and duty of confidentiality.
29. Duty of trustees to act together.
30. Duty to act impartially.
31. General powers of trustees.
32. Powers of investment.
33. Powers of trustees.
34. Delegation by trustees.
35. Reimbursement of expenses.
36. Payment of trustees.
37. Power to appropriate.
38. Power and duty of maintenance.
39. Power of advancement.
40. Accumulation and maintenance settlements.
41. Receipt of parents or guardians.
42. Power of appointment.
43. Power of revocation or variation.
PART V
TERMINATION OR FAILURE OF TRUSTS
44. Failure or lapse of interest.
45. Application of property held on charitable trusts.
46. Termination of trusts.
47. Termination by beneficiaries.
PART VI
VARIATION OF TRUSTS
48. Power to provide for variation of terms of trust.
49. Variation of trusts by the Court.
PART VII
BREACH OF TRUST
50. Liability for breach of trust.
51. Constructive trusts.
52. Tracing trust property.
53. Beneficiary may relieve or indemnify a trustee.
54. Power to relieve trustees from personal liability.
55. Power to make beneficiaries indemnify.
56. Limitation and prescription.
PART VIII
POWERS OF THE COURT
57. Jurisdiction of the Court.
58. General powers of the Court.
59. Application for directions.
60. Payment of costs.
PART IX
CHOICE OF GOVERNING LAW
61. Governing Law.
62. Matters determined by governing law.
63. Exclusion of foreign law.
PART X
PROVISIONS APPLICABLE TO A FOREIGN TRUST
64. Application of Part X.
65. Enforceability of a foreign trust.
PART XI
VARIANT TYPES OF TRUST
66. Variant types of trust.
67. Provisions of variant types of trust.
PART XII
OPTIONAL REGISTRATION OF TRUSTS AND EXEMPTION FROM TAXES
68. Facility to register trusts.
69. Exemption from taxes.
PART XIII
SUPPLEMENTAL
70. Regulations and Orders
71. Application of this Ordinance.
72. Repeal of Chapters 355 and 357.
73. Consequential amendments.
SCHEDULE 1
SECTION 32
AUTHORISED TRUSTEE INVESTMENTS
SCHEDULE 2
SECTION 33
POWERS OF TRUSTEES
ANGUILLA
No. 8 of 1994
THE TRUSTS ORDINANCE, 1994
An Ordinance to make provision for the law relating to trusts
and trustees and related matters.
[Gazetted 21st November, 1994]
ENACTED by the Legislature of Anguilla.
1. Short Title and commencement
This Ordinance may be cited as the Trusts Ordinance, 1994 and
shall come into operation on such date as the Governor may appoint
by notice in the Gazette.
PART I
PRELIMINARY
2. Interpretation
(1) In this Ordinance, unless the context otherwise
requires
"bankrupt", in relation to a corporation,
includes a corporation which is insolvent, and"bankruptcy"
shall be construed accordingly;
"beneficiary", means a person entitled
to benefit under a trust, or in whose favour a power to distribute
trust property may be exercised;
"breach of trust", means a breach of
any duty imposed on a trustee by this Ordinance or by the terms
of the trust or otherwise imposed on him as such by any rules
of law or equity;
"corporate trustee" means a trustee
which is a corporation empowered by its constitution to undertake
trust business and being a company registered under the Companies
Ordinance, having share capital (in stock or share) for the time
being paid up in cash of not less than an amount to be prescribed.
For the purposes of this definition "trust
business" means the business of acting as trustee under wills
and settlements and as executor and administrator of deceased
persons;
"corporation" means a body corporate
wherever incorporated;
"Court" means the High Court of the
Eastern Caribbean Supreme Court or a Judge thereof;
"dispose" and "disposition"
in relation to property means every form of conveyance, transfer,
assignment, lease, mortgage, pledge or other transaction by which
any legal or equitable interest in property is created, transferred
or extinguished;
"family" in relation to an individual
means his father and mother, his spouse, the father and mother
of his spouse, his brothers and sisters and the brothers and sisters
of his spouse, his children and remoter issue and the spouses
of such children and issue;
"formalities" in relation to a disposition
of property means any documentary or other actions required generally
by the laws of a relevant jurisdiction for all dispositions of
like form concerning property of like nature, without regard to
(a) the fact that the particular disposition
is made in trust;
(b) the terms of the trust;
(c) the circumstances of the parties
to the disposition; or
(d) any other particular circumstances,
but includes any special formalities required
by reason that the party effecting the disposition is not of full
age, is subject to a mental or bodily infirmity or is a corporation;
"functions" includes rights, powers,
discretions, obligations, liabilities and duties;
"governing law" means the law governing
a trust executed in Anguilla or elsewhere;
"he", "him" and "his",
in relation to a corporation, include "it" and "its";
"heirship right" means any right, claim
or interest in, against or to property of a person arising or
occurring in consequence of that person's death, other than any
such right, claim or interest created by will or other voluntary
disposition by such person or resulting from an express limitation
in the disposition of the property of such person;
"insolvency" includes the making of
an administration order, the appointment of a receiver and the
bankruptcy of any person;
"insurance" includes assurance;
"interest", in relation to a beneficiary,
means his interest under a trust;
"minor" means a person who has not attained
full age under the law of his domicile;
"personal relationship" includes every
form of relationship by blood or marriage, including former marriage
and in particular a personal relationship between two persons
which exists if
(a) one is the child of the other,
natural or adopted (whether or not the adoption is recognised
by law), legitimate or illegitimate;
(b) one is married to the other, whether
or not the marriage is recognised by law;
(c) one cohabits with the other or
so conducts himself or herself in relation to the other as to
give rise in any jurisdiction to any rights, obligations or responsibilities
analogous to those of parents and child or husband and wife; or
(d) personal relationships exist between
each of them and a third person,
but no change in circumstances causes a personal
relationship once established to terminate;
"personal representative" means the
executor or administrator of the estate of a deceased person;
"profit" includes gain or advantage;
"property"
(a) means property of any description,
wherever situated, including any share therein,
(b) in relation to rights and interests,
includes rights and interests whether vested, contingent, defeasible
or future;
"protective or spendthrift trust" has
the meaning ascribed to it by section 12;
"protector" means a person appointed
as such pursuant to the terms of a trust and capable of enforcing
it, whether or not he has other functions conferred upon him
in relation thereto;
"provisions of this Ordinance" includes
the provisions of any order made thereunder;
"settlor" in relation to a trust means
each person who directly or indirectly, on behalf of himself or
on behalf of any other, as owner or as the holder of a power in
that behalf, disposes of property to be held in such trust or
declares or otherwise creates such trust;
"terms of a trust" means the written
or oral terms of a trust, and any other terms applicable under
its proper law;
"trust" includes
(a) the trust property; and
(b) the functions, interests and relationships
under a trust;
"trustee" has the meaning given by section
3, and includes a corporate trustee;
"trust property" means property held
on trust;
"unit trust" means a trust established
for the purpose, or having the effect, of providing, for persons
having funds available for investment, facilities for the participation
by them as beneficiaries under the trust in any profits or income
arising from the acquisition, holding, management or disposal
of property.
(2) For the purposes of this Ordinance, a corporation
is resident in the place in which it has its registered office.
(3) Any reference in this Ordinance to an enactment
is, unless the context otherwise requires, a reference to that
enactment as amended, extended, reenacted, or applied by
or under any other enactment, including this Ordinance.
3. Definition of trust
A trust exists where a person (known as a "trustee")
holds or has vested in him, or is deemed to hold or have vested
in him, property which does not form, or which has ceased to form,
part of his own estate
(a) for the benefit of any person (known as
"a beneficiary") whether or not yet ascertained or in
existence; or
(b) for any valid charitable or non
charitable purpose which is not for the benefit only of the trustee;
or
(c) for such benefit as is mentioned in subparagraph
(a) and also for any such purpose as is mentioned in sub
paragraph (b).
4. Validity
Subject to the provisions of this Ordinance, a trust is valid
and enforceable in Anguilla.
5. Creation of a trust
(1) A trust other than a unit trust may be created
by oral declaration, or by an instrument in writing (including
a will or codicil), by conduct, by operation of law, or in any
other manner whatsoever.
(2) A unit trust may be created only by an instrument
in writing.
(3) No formalities or technical expressions are required
for the creation of a trust provided that the intention of the
settlor to create a trust is clearly manifested.
(4) A trust (other than a trust by operation of law)
respecting land situated in Anguilla shall be unenforceable unless
evidenced in writing.
6. Duration of a trust and of accumulation of income
(1) An instrument creating or varying a trust may
provide for the duration and date of termination of the trust.
(2) The rules of law known as the rules against perpetuities
shall not apply to a trust.
(3) For the avoidance of doubt it is declared that
the rules referred to in subsection (2) include:
(a) the application or effect of those rules
in respect of accumulations; and
(b) the rule of law prohibiting trusts of
perpetual duration.
(4) The terms of a trust may direct or authorise the
accumulation of all or part of the income of the trust for a period
not exceeding the maximum duration of the trust.
7. Restrictions upon validity of a trust
(1) Subject to the provisions of this Ordinance a
trust shall be valid and enforceable in accordance with its terms.
(2) A trust shall be invalid and unenforceable
(a) to the extent that
(i) it purports to do anything contrary
to the law of Anguilla; or
(ii) it purports to confer any right
or power or impose any obligation the exercise of which or the
carrying out of which is contrary
to the law of Anguilla; or
(iii) it has no beneficiary identifiable
or ascertainable (unless the trust was created for a valid charitable
or noncharitable purpose);
(b) to the extent that the Court declares
that
(i) the trust was established by duress,
fraud, mistake, undue influence or misrepresentation; or
(ii) the trust is immoral or contrary
to public policy; or
(iii) the terms of the trust are so
uncertain that its performance is rendered impossible (provided
that a charitable purpose shall be deemed always to be capable
of performance); or
(iv) the settlor was, at the time of
its creation, incapable under the law in force in Anguilla of
creating such a trust.
(3) Where a trust is created for two or more purposes
of which some are lawful and others are not, or where some of
the terms of a trust are invalid and others are not
(a) if those purposes cannot be separated
or the terms cannot be separated, the trust is invalid;
(b) if those purposes can be separated or
the terms can be separated, the Court may declare that the trust
is valid as to the terms which are valid and the purposes which
are lawful.
(4) Where a trust is partially invalid the Court may
declare what property is to be held subject to the trust.
(5) Property provided by a settlor and as to which
a trust is invalid shall subject to any order of the Court, be
held by the trustee in trust for the settlor absolutely or, if
he is dead, as if it had formed part of his estate at his death.
(6) Where a trust is created under the law of Anguilla,
the Court shall not vary it or set it aside or recognise the validity
of any claim against the trust property pursuant to the law of
another jurisdiction or the order of a Court of another jurisdiction
in respect of
(a) the personal and proprietary consequences
of marriage or the termination of marriage;
(b) succession rights (whether testate or
intestate) including the fixed shares of spouses or relatives;
(c) the claims of creditors in an insolvency;
or
(d) the imposition of any foreign tax or duty.
(7) Subsection (6) above shall have effect notwithstanding
the provisions of the Reciprocal Enforcement of Judgments Ordinance.
(Cap. 67)
8. Property which may be held on trust
(1) Any property may be held by or vested in a trustee
upon trust.
(2) A trustee may accept from any person property
to be held on trust.
(3) A trustee shall not be bound to accept property
to be held on trust, but where a trustee accepts property subject
to the performance of an obligation the trustee shall be deemed
to have given to the settlor of that property for good consideration
an undertaking to perform that obligation.
(4) Where a settlor declares a trust respecting property
he does not own at the time of the declaration, then-
(a) the trust is incompletely constituted
at the time of the declaration and no rights or duties arise thereunder;
but
(b) if the settlor subsequently receives property
which was the intended subject matter of the declaration of trust,
the Court shall at the instance of the beneficiary or the trustee
(and whether the beneficiary has given consideration for the declaration
of trust or not) compel the settlor to transfer that property
to the trustee or to hold that property on the terms of the trust.
PART II
THE SETTLOR, BENEFICIARIES AND PURPOSES OF A TRUST
9. Who may be the settlor of a trust
(1) Any person who has under the law of Anguilla the
capacity to own and transfer property may be the settlor of a
trust.
(2) The settlor may also be a trustee, a beneficiary
or a protector of the trust.
10. Beneficiaries of a trust
(1) A beneficiary shall be identifiable by name or
ascertainable by reference to a relationship to some person (whether
or not living at the time of creation of the trust) or otherwise
by reference to a description or to a class.
(2) The terms of a trust may
(a) provide for the addition of a person as
a beneficiary or the exclusion of a beneficiary or the exclusion
of a beneficiary from benefit under the trust;
(b) impose an obligation on a beneficiary
as a condition of benefit under the trust.
(3) Where a trust is in favour of a class of persons
then, subject to the terms of the trust
(a) the class closes when it is no longer
possible for any other person to become a member of the class;
(b) a woman over the age of 65 years shall
be deemed to be no longer capable of bearing a child; and
(c) where the interest of the class relates
to income, and no member of the class exists, the income shall
be accumulated and retained until a member of the class exists
or the class closes.
(4) A beneficiary may
(a) disclaim his whole interest under a trust;
or
(b) subject to the terms of the trust, disclaim
part of his interest under a trust (whether or not he has received
some benefit from his interest).
(5) Subject to the terms of the trust, a disclaimer
(a) shall be in writing;
(b) may be temporary; and
(c) may, if the disclaimer so provides, be
revoked in the manner and under the circumstances specified therein.
(6) Where a beneficiary disclaims the whole or part
of his interest under a trust the like consequences shall apply
under section 7(5) as if the trust were invalid with respect
to that interest or that part.
11. Nature of a beneficial interest
(1) The interest of a beneficiary is personal property.
(2) Subject to the terms of the trust, the interest
of a beneficiary may be sold, pledged, charged, transferred or
otherwise dealt with in any manner whatsoever.
12. Protective or spendthrift trusts
(1) The terms of a trust may make the interest of
a beneficiary
(a) subject to termination;
(b) subject to a restriction on alienation
of or dealing in that interest or any part of that interest; or
(c) subject to diminution or termination in
the event of the beneficiary becoming insolvent or any of his
property becoming liable to seizure or sequestration for the benefit
of his creditors,
and such a trust shall be known as a protective or a spendthrift
trust.
(2) Where any property is directed to be held on
protective or spendthrift trust for the benefit of a beneficiary,
the trustee shall hold that property
(a) in trust to pay the income to the beneficiary
until the interest terminates in accordance with the terms of
the trust or a determining event occurs; and
(b) if a determining event occurs, and while
the interest of the beneficiary continues, in trust to pay the
income to such of the following (and if more than one in such
shares) as the trustee in his absolute discretion shall appoint
(i) the beneficiary and any spouse
or child of the beneficiary; or
(ii) if there is no such spouse or
child the beneficiary and the persons who would be entitled to
the estate of the beneficiary if he had then died intestate and
domiciled in Anguilla.
(3) In subsection (2) above, a "determining
event" means the occurrence of any event or any act or omission
on the part of the beneficiary (other than the giving of consent
to an advancement of trust property) which would result in the
whole or part of the income of the beneficiary from the trust
becoming payable to any person other than the beneficiary.
(4) Any rule of law or public policy which prevents
a settlor from establishing a protective or a spendthrift trust
of which he is a beneficiary is hereby abolished.
13. Letters or memoranda of wishes
(1) The settlor of a trust may give to the trustee
a letter of his wishes or the trustee may prepare a memorandum
of the wishes of the settlor with regard to the exercise of any
functions conferred on the trustee by the terms of the trust.
(2) A beneficiary of a trust may give to the trustee
a letter of his wishes or the trustee may prepare a memorandum
of the wishes of the beneficiary with regard to the exercise of
any functions conferred on the trustee by the terms of the trust.
(3) Where a trust is in favour of a class of persons
then a member of that class may give to the trustee a letter of
his wishes or the trustee may prepare a memorandum of the wishes
of that member with regard to the exercise of any functions conferred
on the trustee by the terms of the trust.
(4) Where a letter of wishes or a memorandum of wishes
is given to or prepared by the trustee of a
trust then
(a) the trustee may have regard to that letter
or memorandum in exercising any functions conferred upon him by
the terms of the trust; but
(b) the trustee shall not be bound to have
regard to that letter or memorandum and shall not be accountable
in any way for his failure or refusal to have regard to that letter
or memorandum.
(5) No fiduciary duty or obligation shall be imposed
on a trustee merely by the giving to him of a letter of wishes
or the preparation by him of a memorandum of wishes.
14. Definition of charitable purpose
(1) For the purposes of this Ordinance, and subject
to subsections (2) and (3), the following purposes shall be regarded
as charitable
(a) the relief of poverty;
(b) the advancement of education;
(c) the advancement of religion;
(d) the protection of the environment;
(e) the advancement of human rights and fundamental
freedoms;
(f) any other purposes which are beneficial
to the community.
(2) A purpose shall not be regarded as charitable
unless the fulfillment of that purpose is for the benefit of the
community or a substantial section of the community having regard
to the type and nature of the purpose.
(3) A purpose may be regarded as charitable whether
it is to be carried out in Anguilla or elsewhere and whether it
is beneficial to the community in Anguilla or elsewhere.
15. Trusts for non-charitable
(1) A trust may be created for commercial or other
purpose which is noncharitable provided that
(a) the purpose is specific, reasonable and
capable of fulfillment;
(b) the purpose is not immoral, unlawful or
contrary to public policy; and
(c) the terms of the trust provide for the
appointment of a protector who is capable of enforcing the trust
and for the appointment of a successor to any such protector.
(2) If the AttorneyGeneral has reason to believe
that there is no protector of a trust for a noncharitable
purpose or the protector is unwilling or incapable of acting,
he may apply to the Court for the appointment of a person to be
protector of the trust and the Court may, unless it feels that
the person is not fit, by order declare him to be the protector
to enforce the trust.
(3) The order of the Court under subsection (2) is
conclusive evidence of the appointment of the protector to enforce
the trust and the appointment takes effect as from the date of
the order.
(4) Where any costs are incurred by the Attorney General
in connection with any application under sub section (2),
the Court may make such order as it considers just as to the payment
of those costs out of the assets of the trust.
PART III
PROTECTORS AND TRUSTEES
16. The Protector of a trust
(1) The terms of a trust may provide for the office
of the protector of the trust.
(2) The protector shall have the following powers
(a) (unless the terms of the trust shall otherwise
provide) the power to remove a trustee and to appoint a new or
additional trustee;
(b) the power to enforce the trust;
(c) such further powers as are conferred on
the protector by the terms of the trust or the provisions of this
Ordinance.
(3) The protector of a trust may also be a settlor,
a trustee or a beneficiary of the trust.
(4) In the exercise of his office, the protector shall
not be accounted or regarded as a trustee.
(5) Subject to the terms of the trust, in the exercise
of his office a protector shall owe a fiduciary duty to the beneficiaries
of the trust or to the purpose for which the trust is created.
(6) Where there is more than one protector of a trust
then, subject to the terms of the trust, any functions conferred
on the protectors may be exercised if more than one half of the
protectors for the time being agree on its exercise.
(7) A protector who dissents from a decision of the
majority of protectors may require his dissent to be recorded
in writing.
17. Who may be the trustee of a trust
(1) Any person who has capacity other than a minor
under the law of Anguilla may be the trustee of a trust.
(2) The trustee may also be a settlor, a beneficiary
or a protector of the trust.
18. The number of trustees
(1) Unless the terms of the trust provide for a greater
number, the minimum number of trustees shall be one.
(2) A trust shall not cease to be valid only on the
ground that there is no trustee or fewer than the number of trustees
required by the terms of the trust.
(3) Where there is no trustee or fewer than the number
of trustees required by the terms of the trust, the necessary
number of new or additional trustees shall be appointed and until
the minimum number is reached the surviving trustee (if any) shall
act only for the purpose of preserving the trust property.
(4) Except in the case of a trust established for
a charitable purpose
(a) the number of trustees shall not be more
than four; and
(b) if at any time there are more than four
persons named as trustees, only the first four persons so named
shall be the trustees of the trust.
19. Appointment of new or additional trustees
(1) Where the terms of a trust contain no provision
for the appointment of a new or additional trustee, then
(a) the protector (if any); or
(b) the trustees for the time being (but so
that a trustee shall not be required to join in the appointment
of his replacement); or
(c) the last remaining trustee; or
(d) the personal representative or liquidator
of the last remaining trustee; or
(e) if there is no such person (or no such
person willing to act), the Court,
may appoint a new or additional trustee.
(2) Subject to the terms of the trust, a trustee appointed
under this section shall have the same functions and may act as
if he had been originally appointed a trustee.
(3) On the appointment of a new or additional trustee,
anything requisite for vesting the trust property in the trustees
for the time being of the trust shall be done.
20. Appointment of trustee resident in Anguilla
(1) Where there is no trustee resident in Anguilla,
a beneficiary so resident may apply to the Court for appointment
of a person, resident in Anguilla and nominated in the application,
as an additional trustee.
(2) The Court
(a) if satisfied that notice of the application
has been served on the existing trustee;
(b) having heard any representations; and
(c) having ascertained that the person nominated
is willing to act,
may appoint that person as an additional trustee.
(3) Notwithstanding the provisions of section 18,
the power contained in this section may be exercised even it results
in there being more than four trustees for the time being of the
trust.
(4) The terms of a trust may expressly exclude the
operation of subsections (1) and (2).
21. Renunciation of trusteeship
(1) No person shall be obliged to accept appointment
as a trustee, but a person nominated as trustee who knowingly
intermeddles with the trust property shall be deemed to have accepted
appointment as a trustee.
(2) A person who has not accepted and is not deemed
to have accepted appointment as a trustee of a trust may within
a reasonable period of time after becoming aware of his nominations
as trustee
(a) disclaim his appointment by notice in
writing to the other trustees of such trust (if any); or
(b) if there are no such other trustees or
such other trustees cannot be contacted, apply to the Court for
relief from his appointment and the Court may make such order
as it thinks fit.
(3) A person nominated as a trustee who does not act
under subsection (2) within a reasonable period of becoming aware
of his nomination shall be deemed to have accepted appointment
as a trustee.
22. Resignation or removal of trustees
(1) A trustee other than a sole trustee may resign
by notice in writing to his cotrustees.
(2) A trustee shall cease to be a trustee immediately
upon
(a) the delivery of a notice of resignation
under subsection (1);
(b) his removal from office by the Court;
(c) his removal from office by the protector
of the trust;
(d) the coming into effect of or the exercise
of a power under a provision in the terms of the trust under or
by which he is removed from, or otherwise ceases to hold his office.
(3) A person who ceases to be a trustee or is a personal
representative of a deceased trustee shall do everything necessary
to vest the trust property in the new or continuing trustees.
(4) When a trustee resigns or is removed
(a) he shall, subject to paragraph (b) duly
surrender all trust property held by or vested in him or otherwise
under his control;
(b) he may require that he be provided with
reasonable security for liabilities (existing, future, contingent
or other) before surrendering the trust property.
(5) A former trustee shall not be liable to any trustee
or to any beneficiary or other person interested under the trust
for any act or omission in relation to the trust property or to
his functions as a trustee, except for any liability
(a) arising from a breach of trust to which
the trustee (or, in the case of a corporate trustee, any of its
officers or employees) was a party or was privy during the term
of his appointment;
(b) in respect of an action to recover from
the trustee (or, in case of corporate trustee, any of its officers
or employees) trust property or the proceeds thereof in his possession
or under his control.
23. Nature of trustees' and protectors' interests
(1) Subject to subsection (2)
(a) the interest of a trustee or protector
in the trust property is limited to that which is necessary for
the proper performance of the trust; and
(b) the trust property does not form part
of the trustee's or protector's estate.
(2) Where a trustee or protector of a trust is also
a beneficiary thereof, subsection (1) does not apply to
his interest as a beneficiary.
(3) Where a trustee or protector becomes insolvent,
or upon his property becoming liable to distraint, seizure, sequestration
or similar process of law, his creditors shall have no recourse
against the trust property except to the extent that the trustee
or protector himself has a claim against it or a beneficial interest
in it.
24. Corporate trustee may act by resolution
A corporate trustee may
(a) act in connection with a trust by a resolution
of the corporate trustee or of its board of directors or other
governing body; or
(b) appoint an officer or employee to act
on its behalf in connection with the trust.
25. Trustees of more than one trust
(1) A trustee is not, in the absence of fraud, affected
by notice of any instrument, matter, fact or thing in relation
to a trust if he obtained notice of it by reason of his acting
or having acted as trustee of another trust.
(2) A trustee of a trust shall disclose to his cotrustees
any interest which he has as trustee of another trust if any transaction
in relation to the first mentioned trust is to be entered into
with the trustees of the other trust.
26. Dealings by trustees with third parties
(1) Where, in a transaction or matter affecting a
trust, a trustee informs a third party that he is acting as trustee,
a claim by the third party in respect of the transaction or matter
shall (subject to subsection (3)) extend only to the trust
property.
(2) If the trustee fails to inform the third party
that he is acting as trustee
(a) he incurs personal liability to the third
party in respect of the transaction or matter; and
(b) he has a right of indemnity against the
trust property in respect of his personal liability, unless he
acted in breach of trust.
(3) Nothing in this section shall prejudice any claim
for breach of warranty of authority.
(4) A bona fide purchaser for value without notice
of a breach of trust
(a) may deal with a trustee in relation to
trust property as if the trustee were the beneficial owner thereof;
and
(b) is not affected by the trusts on which
the property is held.
(5) A third party paying or advancing money to a trustee
is not concerned to see
(a) that the money is needed in the proper
exercise of the trust functions;
(b) that no more than is so needed is raised;
or
(c) that the transaction or the application
of the money is proper.
(6) In this section "third party" means
a person other than a settlor, trustee, protector or beneficiary
of the trust.
PART IV
DUTIES AND POWERS OF TRUSTEES
27. General duties of trustees
(1) A trustee shall in the execution of his functions
(a) act with due diligence; and
(b) observe utmost good faith; and
(c) act to the best of his skills and abilities;
and
(d) exercise the standard of care of a reasonable
and prudent man of business.
(2) A trustee shall carry out and administer the trust
in accordance with this Ordinance and, subject
thereto, in accordance with the terms of the trust.
(3) A trustee shall owe a fiduciary duty to the beneficiaries
of the trust, the members of a class for whose benefit the trust
was established, or the purpose for which the trust was established.
(4) Where a fiduciary duty is owed to a purpose for
which a trust was established, that duty may be enforced by the
protector of the trust or (in the case of a trust established
for a charitable purpose) by the AttorneyGeneral.
(5) A trustee shall, subject to the terms of the trust
and to the provisions of this Ordinance
(a) ensure that the trust property is held
by or vested in him or is otherwise under his control; and
(b) preserve and, so far as is reasonable,
enhance the value of the trust property.
(6) Except with the approval of the Court or in accordance
with the terms of the trust or the provisions of this Ordinance,
a trustee shall not
(a) derive, directly or indirectly, any profit
from his trusteeship;
(b) cause or permit any other person other
than a professional advisor consulted by him pursuant to section
31(6) directly or indirectly to derive any profit from his trusteeship;
or
(c) on his own account enter into any transaction
with his cotrustees or relating to the trust property which
may result in any such profit.
(7) The trustee of a trust shall keep accurate accounts
and records of his trusteeship.
(8) A trustee shall keep trust property separate from
his own property and separately identifiable from any other property
of which he is a trustee.
28. Duty to supply information and duty of confidentiality
(1) A trustee shall so far as is reasonable and within
a reasonable time of receiving a request in writing to that effect
provide full and accurate information as to the state and amount
of the trust property and the conduct of the trust administration
to
(a) the Court;
(b) the settlor or protector of the trust;
(c) in the case of a trust established for
a charitable purpose, the Attorney General;
(d) subject to the terms of the trust, any
beneficiary of the trust who is of full age and capacity; and
(e) subject to the terms of the trust, any
charity for the benefit of which the trust was established.
(2) Subject to the provisions of this Ordinance and
to the terms of the trust, and except as is necessary for the
proper administration of the trust or by reason of any other Ordinance
or Act, the trustee of a trust shall keep confidential all information
regarding the state and amount of the trust property or the conduct
of the trust administration.
(3) A trustee is not (subject to the terms of the
trust and to any order of the Court) obliged to disclose documents
which reveal
(a) his deliberations as to how he should
exercise his functions as trustee;
(b) the reasons for any decision made in the
exercise of those functions;
(c) any material upon which such a decision
was or might have been made.
29. Duty of trustees to act together
(1) Subject to the terms of the trust, all the trustees
of a trust shall join in execution of the trust.
(2) Subject to subsections (3) and (4) below, no functions
conferred on trustees shall be exercised unless all the trustees
agree on their exercise.
(3) Subject to the terms of the trust and to subsection
(4), any functions conferred on trustees of a charitable trust
shall be exercised if more than one half of the trustees for the
time being of the trust agree on their exercise.
(4) The terms of a trust may empower the trustees
to act individually or by a majority with respect to the exercise
of some or all of the functions conferred on the trustees or to
delegate the exercise of these functions to one or more trustees.
(5) A trustee who dissents from a decision of the
majority of trustees or of a cotrustee or of the trustees
to whom any functions have been delegated may require his dissent
to be recorded in writing.
30. Duty to act impartially
(1) Subject to the terms of the trust, where a trust
is established for one or more beneficiaries or purposes (whether
concurrent or consecutive), a trustee shall act impartially as
between these beneficiaries and purposes.
(2) Subject to the terms of the trust and to the provisions
of this Ordinance, any rule of law which requires a trustee to
buy, hold or sell certain investments or to apportion the capital
or income of the trust fund between beneficiaries is hereby abolished.
31. General powers
(1) Subject to the terms of the trust and the provisions
of this Ordinance, a trustee shall have in relation to the trust
property all the powers of a beneficial owner.
(2) Subject to the terms of the trust and the provisions
of this Ordinance, a trustee shall exercise his functions only
in the interests of the beneficiaries or of the purpose for which
the trust is established and in accordance with the terms of the
trust.
(3) Where the terms of a trust provide that the trustee
may add or remove beneficiaries or purposes for which the trust
is established, then if such power is exercised properly and on
the basis of valid considerations the exercise of the power shall
not be regarded as a breach of the duty of the trustee under the
trust.
(4) A trustee may sue and be sued as trustee.
(5) The terms of a trust may require a trustee to
consult or obtain the consent of another person before exercising
any functions under the trust.
(6) Where he considers it necessary or desirable in
the interests of the good administration of the trust, a trustee
may consult a lawyer, accountant, investment advisor or other
person in relation to the affairs of the trust.
(7) A person shall not, merely by virtue of giving
or refusing his consent to the exercise of any functions or being
consulted in relation to the affairs of the trust, be deemed to
be a trustee or to owe a fiduciary duty to the beneficiaries of
the trust.
32. Powers of Investment
(1) Subject to the terms of the trust and to the provisions
of this Ordinance, a trustee may invest any money requiring investment
in any investment or property of whatsoever nature and wheresoever
situated and whether producing income or not and whether involving
any liability or not and upon such security (if any) as the trustee
shall in his absolute discretion think fit as if the trustee were
the absolute owner thereof.
(2) Where the terms of a trust or any other instrument
provide that any money requiring investment shall only be invested
in "authorised trustee investments" (or any similar
expression) then the money shall be invested only in such investments
as are specified in Schedule 1.
(3) The terms of a trust may provide that Schedule
1 shall apply to the trust with such modifications as are specified
by the terms of the trust.
(4) The Governor may by Order published in the Gazette
amend the list of authorised trustee investments in paragraph
1 of Schedule 1.
(5) A trustee shall not be liable for breach of trust
by reason only of continuing to hold an investment which has ceased
to be an investment authorised by the terms of the trust or by
the general law.
(6) Subject to the terms of the trust, in selecting
investments a trustee or (as the case may be) any investment advisor
or other person to whom the trustee has delegated the management
of the trust property, shall have regard-
(a) to the need for diversification of investments
in the trust, insofar as is appropriate to the circumstances of
the trust; and
(b) to the suitability to the trust of the
investments proposed.
(7) Subject to the terms of the trust, before investing
money in any investment a trustee shall consider whether he should
obtain appropriate advice as to whether the investment is suitable
and satisfactory and (if he considers that the obtaining of such
advice is necessary) shall obtain and consider such advice accordingly.
(8) Subject to the terms of the trust, a trustee shall
determine whether and, if so, at what intervals he should obtain
appropriate advice as to whether the existing investments of the
trust are suitable and satisfactory and (if he considers that
the obtaining of such advice is necessary) shall obtain and consider
such advice accordingly.
(9) For the purposes of the two foregoing subsections,
advice is appropriate if it is the advice of a person who is reasonably
believed by the trustee to be qualified to give such advice; and
such advice may be given by a person notwithstanding that he gives
it in the course of his employment (including employment with
a trustee of the trust).
33. Powers of trustees
(1) Subject to the terms of the trust the powers contained
in Schedule 2 shall apply to all trusts to which this section
applies.
(2) The terms of a trust may provide that some or
all of the powers contained in Schedule 2 shall be incorporated
by reference and shall apply with or without modification and
this section applies to any trust the terms of which so provide.
34. Delegation
(1) A trustee may not delegate the exercise of his
functions unless permitted to do so by this Ordinance or by the
terms of the trust.
(2) Except where the terms of the trust provide to
the contrary, a trustee may
(a) delegate the management of trust property
to and appoint investment managers whom the trustee reasonably
considers to be qualified to manage the investment of the trust
property;
(b) appoint and employ any lawyer, accountant
or other person to act in relation to any of the affairs of the
trust or to hold any of the trust property; and
(c) authorise any such manager or person to
retain or receive any commission or other payment usually payable
for services of the description rendered.
(3) A trustee shall not be liable for any loss arising
to the trust from a delegation or appointment under subsection
(2) or from the default of any such delegate or appointee provided
that the trustee exercised the standard of care of a reasonable
and prudent man of business in
(a) the selection of the delegate or appointee;
and
(b) the supervision of the activities of the
delegate or appointee.
35. Reimbursement of expenses
A trustee shall be entitled to be reimbursed out of the trust
property all expenses properly incurred by him in connection with
the trust.
36. Payment of trustees
(1) Subject to the terms of the trust, an individual
trustee engaged in any profession or business shall be entitled
to charge and be paid all usual professional or other charges
for business transacted, time spent and acts done by him or any
partner or employee of his or of his firm in connection with the
trust including acts which a trustee not being engaged in any
profession or business could have done personally.
(2) Subject to the terms of the trust, a corporate
trustee shall be entitled to such remuneration as may from time
to time be agreed in writing between such corporation and the
settlor or protector or (in the absence of such agreement) in
accordance with its standard terms and conditions as to the administration
of trusts current from time to time.
(3) Where the terms of trust provide that a trustee
shall not receive any payment for acting as such, payment may
nevertheless be authorised
(a) by the Court; or
(b) by some or all of the beneficiaries of
the trust:
Provided that a beneficiary may not validly authorise such payment
if the beneficiary
(i) is a minor or a person under legal
disability;
(ii) does not have full knowledge of
all material facts; or
(iii) is improperly induced by the trustee
to authorise such payment.
(4) Where some only of the beneficiaries authorise
payment to a trustee in accordance with sub section (3)
the payment shall be made out of the share of the trust property
which in the opinion of the trustee is referable to the interests
of those beneficiaries who so authorise payment.
37. Power to appropriate
Subject to the terms of the trust, a trustee may, without the
consent of any beneficiary, appropriate trust property in or towards
satisfaction of the interest of a beneficiary in such manner and
in accordance with such valuation as he considers appropriate.
38. Power and duty of maintenance
Subject to the terms of the trust and to any prior interest or
charge affecting the trust property, where any property is held
by a trustee in trust for any beneficiary for any interest whatsoever
(a) while the beneficiary is a minor, the
trustee
(i) may, at his discretion, pay to
the parent or guardian of the beneficiary or otherwise apply the
whole or part of the income attributable to that interest for
or towards the maintenance, education or benefit of the beneficiary;
and
(ii) shall accumulate the residue of
the income as an accretion to the trust property and as one fund
with the trust property for all purposes:
Provided that the trustee may while the beneficiary
is a minor apply those accumulations as if they were income of
the then current year; and
(b) if the beneficiary is no longer a minor
and his interest has not yet vested in possession, the trustee
shall thenceforth pay the income attributable to the interest
to the beneficiary until his interest vests in possession or terminates.
39. Power of advancement
Subject to the terms of the trust, a trustee may in his discretion
pay or apply trust property for the advancement or benefit of
any beneficiary whose interest in the trust has not yet vested
in possession:
Provided that
(a) any trust property so paid or applied
shall be brought into account in determining the share of the
beneficiary in the trust property;
(b) no such payment or application shall be
made which prejudices any person entitled to any prior interest
unless such person is of full age and consents to the payment
or application or, if such person is not of full age, the Court
consents; and
(c) the part of the trust property so paid
or advanced shall not exceed the presumptive share of the beneficiary
in the trust property.
40. Accumulation and maintenance settlements
Where any property is directed to be held on accumulation and
maintenance trusts for the benefit of a beneficiary or a class
of beneficiaries, the provisions of sections 38 and 39 shall (unless
the terms of the trust otherwise provide) apply to the interest
of such beneficiary or beneficiaries.
41. Receipts of parents or guardians
The receipt of a parent or guardian of a beneficiary who is a
minor or is under legal disability shall be a sufficient discharge
to the trustee for a payment made to or for the benefit of the
beneficiary.
42. Power of appointment
The terms of a trust may confer on the trustee or any other person
power to appoint all or any part of the trust property to, or
to trustees for the benefit of, any person or valid charitable
or noncharitable purpose (whether or not such person was
a beneficiary of the trust or such purpose was an object of the
trust prior to such appointment).
43. Power of revocation or variation
(1) A trust and any exercise of a power or discretion
under a trust may be expressed to be capable of revocation (in
whole or in part) or of variation.
(2) No such revocation or variation shall prejudice
anything lawfully done by a trustee in relation to the trust before
he receives notice of the revocation or variation.
(3) Subject to the terms of the trust, if a trust
is revoked in whole or in part, the trustee shall hold the trust
property, which is the subject of the revocation, in trust for
the settlor absolutely or, if he is dead, as if it had formed
part of his estate at death.
(4) In so far as the terms of a trust make no provision
for revocation of the trust, then the trust shall be irrevocable.
PART V
TERMINATION OR FAILURE OF TRUSTS
44. Failure or lapse of interest
(1) Subject to the terms of the trust and to any order
of the Court, where
(a) an interest lapses;
(b) a trust terminates; or
(c) there is no beneficiary and no person
(whether or not then living) who can become a beneficiary in
accordance with the terms of the trust,
the interest or property concerned shall be held by the trustee
in trust for the settlor absolutely, or if he is dead, as if it
had formed part of his estate at death.
(2) Subsection (1) shall not apply to a trust established
for a charitable purpose to which section 45 applies.
45. Application of property held on charitable trust
(1) Where trust property is held for a charitable
purpose and
(a) the purpose has been, as far as may be,
fulfilled;
(b) the purpose cannot be carried out at all,
or not according to the directions given and to the spirit of
the gift;
(c) the purpose provides a use for part only
of the property;
(d) the property, and other property applicable
for a similar purpose, can be more effectively used in conjunction,
and to that end can more suitably be applied to a common purpose;
(e) the purpose was laid down by reference
to an area which was then, but has since ceased to be, a unit
for some other purpose, or by reference to a class of persons
or to an area which has for any reason since ceased to be suitable
or to be practicable in administering the gift;
(f) the purpose has been adequately provided
for by other means;
(g) the purpose has ceased to be charitable
(by being useless or harmful to the community or otherwise); or
(h) the purpose has ceased in any other way
to provide a suitable and effective method of using the property,
the property or the remainder of the property, as the case may
be, shall be held for such other charitable purpose as the Court,
on the application of the AttorneyGeneral or the trustee,
may declare to be consistent with the original intention of the
settlor.
(2) Where trust property is held for a charitable
purpose, the Court, on the application of the AttorneyGeneral
or the trustee, may approve any arrangement which varies or revokes
the purposes or terms of the trust or enlarges or modifies the
powers of management or administration of the trustee, if it is
satisfied that the arrangement
(a) is now suitable or expedient; and
(b) is consistent with the original intention
of the settlor.
(3) The Court shall not make a declaration under subsection
(1) or approve an arrangement under sub section (2) unless
satisfied that any person with a material interest in the trust
or in any fund subject to the terms of the trust has had an opportunity
of being heard.
46. Termination of trusts
(1) On the termination of a trust, the trust property
shall, subject to subsection (2), be distributed by the trustee
within a reasonable time in accordance with the terms of the
trust to the persons entitled thereto.
(2) The trustee may retain sufficient assets to make
reasonable provision for liabilities (existing, future, contingent
or other).
47. Termination by beneficiaries
(1) Without prejudice to any power of the Court and
notwithstanding the terms of the trust, where all the beneficiaries
are in existence and have been ascertained, and none is a person
under legal disability or a minor, and all beneficiaries are in
agreement so to do, they may subject to subsection (2) require
the trustee to terminate the trust and distribute the trust property
as the beneficiaries direct.
(2) A beneficiary of an interest under a protective
or spendthrift trust may not enter into such an agreement as is
referred to in subsection (1).
PART VI
VARIATION OF TRUSTS
48. Power to provide for variation of terms of trust
(1) The terms of a trust may be varied in any manner
provided by its terms.
(2) This section is in addition to section 49 (which
provides for the variation of the terms of a trust by the Court).
49. Variation of trusts by the Court
(1) The Court may, on the application of any beneficiary,
the trustee, the settlor or his personal representative, or the
protector of a trust, approve on behalf of
(a) a minor or a person under legal disability
having, directly or indirectly, an interest, vested or contingent,
under the trust;
(b) any person unborn;
(c) any person who is presently unascertained
but who may become entitled, directly or indirectly, to an interest
under the trust, as being (at a future date or on the happening
of a future event) a person of any specified description or a
member of any specified class; or
(d) any person, in respect of an interest
that may accrue to him by virtue of the exercise of a discretionary
power on the failure or determination of an interest under a protective
or spendthrift trust,
any arrangement which varies or revokes the terms of the trust
or enlarges or modifies the powers of management or administration
of the trustee, whether or not there is another person with a
beneficial interest who is capable of assenting to the arrangement:
Provided that the Court shall not approve an arrangement on behalf
of a person mentioned in paragraphs (a), (b) or (c) unless the
arrangement appears to be for his benefit.
(2) Where, in the management or administration of
a trust, any sale, lease, pledge, charge, surrender, release or
other disposition, or any purchase, investment, acquisition, expenditure
or other transaction is, in the opinion of the Court, expedient,
but cannot be effected because the necessary power has not been
conferred on the trustee by the terms of the trust or by law,
the Court, on the application of the trustee
(a) may confer upon the trustee, generally
or in any particular circumstances, the necessary power, on such
terms and subject to such conditions as the Court thinks fit;
and
(b) may direct the manner in which, and the
property from which, any monies authorised to be expended, and
costs of any transaction, are to be paid or borne.
PART VII
BREACH OF TRUST
50. Liability for breach of trust
(1) Subject to the provisions of this Ordinance and
to the terms of the trust, a trustee who commits or concurs in
a breach of trust is liable for
(a) any loss or depreciation in value of the
trust property resulting from the breach; and
(b) any profit which would have accrued to
the trust had there been no breach.
(2) A trustee may not set off a profit accruing from
one breach of trust against a loss or depreciation in value
resulting from another.
(3) A trustee is not liable for a breach of trust
committed by another person prior to his appointment or for a
breach of trust committed by a cotrustee unless
(a) he becomes or ought to have become aware
of the breach; and
(b) he actively conceals the breach, or fails
within a reasonable time to take proper steps to protect or restore
the trust property or to prevent the continuance of the breach.
(4) Where trustees are liable for a breach of trust,
they are liable jointly and severally.
(5) A trustee who becomes aware of a breach of trust
shall take all reasonable steps to have the breach remedied.
(6) Nothing in the terms of a trust shall relieve
a trustee of liability for a breach of trust arising from his
own fraud or wilful misconduct.
51. Constructive trusts
(1) A person who derives a profit from a breach of
trust, or who obtains property in breach of trust, shall be deemed
to be a trustee of the profit or property, unless he derives or
obtains it in good faith and without actual, constructive or implied
notice of the breach of trust.
(2) A person who becomes a trustee by virtue of subsection
(1) shall deliver up the profit or property to the person properly
entitled to it.
(3) This section does not exclude any other circumstances
in which a constructive trust may arise.
52. Tracing trust property
Without prejudice to the personal liability of a trustee, trust
property which has been charged or dealt with in breach of trust,
or any property into which it has been converted, may be followed
and recovered unless
(a) it is no longer identifiable; or
(b) it is in the hands of a bona fide purchaser
for value without actual, constructive or implied notice of the
breach of trust.
53. Beneficiary may relieve or indemnify a trust
(1) A beneficiary may relieve a trustee of a liability
to him for a breach of trust or indemnify a trustee against
liability for a breach of trust.
(2) Subsection (1) does not apply if the beneficiary
(a) is a minor or a person under legal disability;
(b) does not have full knowledge of all material
facts; or
(c) is improperly induced by the trustee to
act under subsection (1).
54. Power to relieve trustee from personal liability
The Court may relieve a trustee wholly or partly of liability
for a breach of trust where it appears to the Court that the trustee
has acted honestly and reasonably and ought fairly to be excused
for the breach of trust or for omitting to obtain the directions
of the Court in the matter in which the breach arose.
55. Power to make beneficiaries indemnify
Where a trustee commits a breach of trust at the instigation,
at the request or with the concurrence of a beneficiary, the Court
(whether or not the beneficiary is a minor or a person under legal
disability) may impound all or part of the interest of that beneficiary
by way of indemnity to the trustee or any person claiming through
him.
56. Limitation and prescription
(1) No period of limitation or prescription applies
to an action brought against a trustee
(a) in respect of any fraud to which the trustee
was a party or was privy; or
(b) to recover from the trustee trust property
or the proceeds thereof
(i) held by or vested in him or otherwise
in his possession or under his control; or
(ii) previously received by him and
converted to his use.
(2) Subject to subsection (1), the period within which
an action founded on breach of trust may be brought against a
trustee is
(a) three years from delivery of the final
accounts of the trust; or
(b) three years from the date on which the
plaintiff first has knowledge of the breach of trust,
whichever period first begins to run.
(3) Where the plaintiff is a minor or a person under
legal disability, the period referred to in sub section
(2) does not begin to run until his minority or disability, as
the case may be, ceases.
PART VIII
POWERS OF THE COURT
57. Jurisdiction of the Court
The Court has jurisdiction in respect of any matters concerning
a trust where
(a) the proper law of the trust is the law
of Anguilla;
(b) a trustee of the trust is resident in
Anguilla;
(c) any property of the trust is situated
in Anguilla;
(d) any part of the administration of the
trust is carried on in Anguilla; or
(e) where, in any other case, the Court thinks
it appropriate.
58. General powers of the Court
(1) On the application of a trustee, a beneficiary,
a settlor or his personal representatives, a protector, (in the
case of a trust established for a charitable purpose) the Attorney
General or, with the leave of the Court, any other person the
Court may
(a) make an order in respect of
(i) the execution, administration
or enforcement of a trust;
(ii) a trustee, including an order
as to the exercise by a trustee, of his functions, the removal
of a trustee, the appointment, remuneration or conduct of a trustee,
the keeping and submission of accounts, and the making of payments,
whether into Court or otherwise;
(iii) a protector, including an order
appointing a protector;
(iv) a beneficiary, or any person connected
with a trust;
(v) any trust property, including
an order as to the vesting, preservation, application, surrender
or recovery thereof;
(b) make a declaration as to the validity
or enforceability of a trust;
(c) direct the trustee to distribute, or not
to distribute, the trust property;
(d) make such order in respect of the termination
of the trust and the distribution of the property as it thinks
fit;
(e) rescind or vary an order or declaration
under this Ordinance, or make a new or further order or declaration.
(2) Where the Court appoints or removes a trustee
under this section
(a) it may impose such requirements and conditions
as it thinks fit, including provisions as to remuneration and
requirements or conditions as to the vesting of trust property;
(b) subject to the Court's order, a trustee
appointed by the Court has the same functions, and may act in
all respects, as if he had been originally appointed a trustee.
(3) If a person does not comply with an order of the
Court under this Ordinance requiring him to do any thing, the
Court may, on such terms and conditions as it thinks fit, order
that the thing be done by another person, nominated for the purpose
by the Court, at the expense of the person in default (or otherwise,
as the Court directs) and a thing so done has effect in all respects
as if done by the person in default.
59. Applications for directions
A trustee may apply to the Court for directions as to how he should
or might act in any of the affairs of the trust, and the Court
may make such order as it thinks fit.
60. Payment of costs
The Court may order the costs and expenses of and incidental to
an application to the Court under this Ordinance to be paid from
the trust property or in such manner and by such persons as it
thinks fit.
PART IX CHOICE OF GOVERNING LAW
61. Governing law
(1) In determining the governing law of a trust regard
is first to be had to the terms of the trust and to any evidence
therein as to the intention of the settlor; and the other circumstances
of the trust are to be taken into account only if the terms of
the trust fail to provide such evidence.
(2) A term of the trust expressly selecting the laws
of Anguilla to govern the trust is valid, effective and conclusive
regardless of any other circumstances.
(3) A term of the trust that the laws of Anguilla
are to govern a particular aspect of the trust or that Anguilla
or the courts of Anguilla are the forum for the administration
of the trust, or any like provision, is conclusive evidence, subject
to any contrary term of the trust, that the parties intended the
laws of Anguilla to be the governing law of the trust and is valid
and effective accordingly.
(4) If the terms of a trust so provide, the governing
law of the trust may be changed to or from the laws of Anguilla
provided that
(a) in the case of a change to the law of
Anguilla, such change is recognised by the governing law of the
trust previously in effect;
(b) in the case of a change from the law of
Anguilla, the new governing law would recognise the validity of
the trust and the respective interests of the beneficiaries.
(5) A change in governing law shall not affect the
legality or validity of, or render any person liable for, any
thing done before the change.
62. Matters determined by governing law
(1) All questions arising in regard to a trust which
is for the time being governed by the laws of Anguilla or in regard
to any disposition of property upon the trusts thereof including,
without prejudice to the generality of the foregoing, questions
as to
(a) the capacity of any settlor;
(b) any aspect of the validity of the trust
or disposition or the interpretation or effect thereof;
(c) the administration of the trust, whether
the administration be conducted in Anguilla or elsewhere, including
questions as to the powers, obligations, liabilities and
rights of trustees and their appointment and removal; or
(d) the existence and extent of powers, conferred
or retained, including powers of variation or revocation of the
trust and powers of appointment, and the validity of any exercise
thereof,
are to be determined according to the laws of Anguilla, without
reference to the laws of any other jurisdictions with which the
trust or disposition may be connected.
(2) This section
(a) shall not validate
(i) any disposition of property which
is neither owned by the settlor nor the subject of a power in
that behalf vested in the settlor;
(ii) any trust or disposition of immovable
property situate in a jurisdiction other than Anguilla in which
such trust or disposition is invalid according to the laws of
such jurisdiction;
(iii) any testamentary trust or disposition
which is invalid according to the laws of the testator's domicile;
(b) shall not affect the recognition of foreign
laws in determining whether the settlor is the owner of the settled
property or is the holder of a power to dispose of such property;
(c) shall take effect subject to any express
term of a trust or disposition to the contrary;
(d) as regards the capacity of a corporation,
shall not affect the recognition of the laws of its place of incorporation;
and
(e) shall not affect the recognition of foreign
laws prescribing generally, without reference to the existence
or terms of the trust, the formalities for the disposition of
property.
63. Exclusion of foreign law
Without limiting the generality of section 62, it is expressly
declared that no trust governed by the laws of Anguilla and no
disposition of property to be held upon the trusts thereof is
void, voidable, liable to be set aside or defective in any fashion,
nor is the capacity of any settlor to be questioned by reason
that
(a) the laws of any foreign jurisdiction prohibit
or do not recognise the concept of a trust; or
(b) the trust or disposition avoids or defeats
rights, claims or interests conferred by foreign law upon any
person by reason of a personal relationship to the settlor or
by way of heirship rights, or contravenes any rule of foreign
law or any foreign judicial or administrative order or action
intended to recognise, protect, enforce or give effect to any
such rights, claims or interests.
PART X
PROVISIONS APPLICABLE TO A FOREIGN TRUST
64. Application of Part X
(1) This Part applies only to a foreign trust.
(2) For the purposes of this part, a foreign trust
includes every trust not governed by the laws of Anguilla.
65. Enforceability of a foreign trust
(1) Subject to subsection (2), a foreign trust or
a severable aspect thereof shall be governed by the foreign law
applicable to the validity, construction and administration thereof.
(2) A foreign trust shall be enforceable in Anguilla
except to the extent that it purports to do anything the doing
of which is contrary to the law of Anguilla or to confer any right
or power or impose any obligation the exercise or carrying out
of which is contrary to the law of Anguilla.
PART XI
VARIANT TYPES OF TRUST
66. Variant types of trust
(1) A settlor may create a trust (in whatever form
and by whatever name it is known) of a type recognised by the
law or rules of his religion or nationality or which is customarily
used by his community, provided that
(a) there is a recital to that effect in the
instrument creating the trust; and
(b) the trust is of a type approved by the
AttorneyGeneral by Order published in the Gazette.
(2) The instrument creating a trust may be written
in a language other than English, provided that a version in the
English language certified by the original trustee to be a true
translation is appended to the instrument.
67. Provisions of variant types of trust
A trust of a type approved under subsection (1) of section 66
may provide that the trustee shall hold the trust property
(a) for such term as is provided in the trust,
to pay or apply the income and capital thereof for the maintenance,
education, advancement or benefit of the family of the settlor,
and/or for the purposes of performing acts or services in honour
of the settlor or the ancestors of the settlor; and
(b) thereafter for the advancement of the
settlor's religion, or for such other charitable purpose as the
settlor may specify or, if the settlor has not specified a charitable
purpose, for such charitable purpose as the trustee shall determine.
PART XII
OPTIONAL REGISTRATION OF TRUSTS AND EXEMPTION FROM TAXES
68. Facility to register trusts
(1) The Registrar of Companies (in this section called
"the Registrar") shall maintain a register of trusts
(in this section called "the Register").
(2) The settlor or a trustee of a trust may apply
but (subject to the terms of the trust) shall not be obliged to
apply to the Registrar to enter the trust on the Register.
(3) An application for entry on the Register shall
be accompanied by
(a) a certified copy of the instrument creating
the trust (if any); and
(b) the fee prescribed by regulations made
under section 70.
(4) The Registrar shall, on receipt of an application
for registration, a certified copy of the instrument creating
the trust (if any) and the required fee
(a) enter on the Register the name of the
trust (if any), the name of the settlor and the name of the beneficiary
or the purpose for which the trust is established; and
(b) issue to the trustee a certificate of
registration.
(5) Where the terms of a trust which has been registered
are varied, the trustee shall send to the Registrar a notification
of such variation together with the appropriate fee prescribed
by regulations under section 70 and the Registrar shall amend
the entry on the Register accordingly and issue an amended certificate
of registration.
(6) Where a trust which has been registered terminates,
the trustee shall notify the Registrar and return the certificate
of registration and the Registrar shall then cancel the entry
on the Register and the certificate of registration.
(7) The Register shall not be open for inspection
except that the trustee of a trust may in writing authorise a
person to inspect the entry of that trust on the Register.
69. Exemption from taxes
(1) For the purposes of this Ordinance a trust shall
be an exempt trust if
(a) the settlor is not resident in Anguilla;
(b) none of the beneficiaries are resident
in Anguilla; and
(c) the trust property does not include any
land situated in Anguilla or the shares of any company beneficially
owning any such land.
(2) Any exempt trust subject to this Ordinance shall
not be subject to any income tax, withholding tax, asset tax,
gift tax, profits tax, capital gains tax, distributions tax, inheritance
tax, estate duty or other like taxes based upon or measured by
assets or income originating outside of Anguilla or in connection
with matters of administration which may occur in Anguilla, except
as provided in section 68.
PART XIII
SUPPLEMENTAL
70. Regulations and Orders
(1) The Governor may make regulations for the better
carrying out of the provisions of this Ordinance and for prescribing
anything that needs to be prescribed.
(2) The Governor may by Order published in the Gazette
add to delete from or amend any provision of Schedule I.
71. Application of this Ordinance
(1) This Ordinance shall apply only to trusts created
on or after the commencement date.
(2) For the purposes of this Ordinance a trust shall
be regarded as created at the time at which property is first
received by or vested in the trustee to be held by him in accordance
with the terms of the trust.
(3) Sections 1 to 4, 7, 52, 56, and Parts VIII, IX,
X, XII, and XIII shall apply to all trusts; the other sections
of this Ordinance shall apply only to trusts the proper law of
which is the law of Anguilla.
(4) Nothing in this Ordinance shall be construed as
affecting the validity of any act done or omission occurring prior
to the commencement date.
72. Repeal of Cap. 355 and 357
(1) The Trustee Ordinance and the Trustees' Relief
Act, are hereby repealed.
(2) Notwithstanding their repeal, the said Ordinance
and Act shall continue to apply to trusts created prior to the
commencement date.
(3) For the purposes of this section, a trust shall
be regarded as created at the time at which property is first
received by or vested in the trustee to be held by him in accordance
with the terms of the trust.
73. Consequential amendments Cap. 45
(1) The Limitation Ordinance shall be amended as follows:
(a) The following shall be substituted for
section 19
"19. Actions against trustees
(1) No period of limitation
or prescription applies to an action brought against a trustee
(a) in respect of
any fraud to which the trustee was a party or was privy; or
(b) to recover from
the trustee trust property or the proceeds thereof
(i) held by
or vested in him or otherwise in his possession or under his control;
or
(ii) previously
received by him and converted to his use.
(2) Subject to subsection
(1), the period within which an action founded on breach of trust
may be brought against a trustee is
(a) three years from
delivery of the final accounts of the trust; or
(b) three years from
the date on which the plaintiff has knowledge of the breach of
trust,
whichever period first begins to run.
(3) Where the plaintiff is
a minor or a person under legal disability, the period referred
to in subsection(2) does not begin to run until his minority or
disability, as the case may be, ceases.";
(b) this amendment shall apply to
(i) any action for breach of trust
where the breach is committed on or after the commencement date;
and
(ii) any other action where the action
is commenced on or after the commencement date.
(2) The Bankruptcy Act shall be amended as follows:
(a) The following shall be substituted for
section 132
"132. Bankrupt a trustee
Where a bankrupt is a trustee within the
meaning of the Trusts Ordinance 1994, section 58 of that Ordinance
shall have effect so as to authorize the appointment of a new
trustee in substitution for the bankrupt (whether voluntarily
resigning or not), if it appears expedient to do so, and all provisions
of that Ordinance and of any other Ordinance relative thereto,
shall have effect accordingly.".
SCHEDULES
SCHEDULE I
SECTION 32
AUTHORISED TRUSTEE INVESTMENTS
1. The following shall be regarded as authorised trustee
investments:
(a) securities issued by, or the payment of interest
on which is guaranteed by, the Government of Anguilla;
(b) securities issued by, or the payment of interest
on which is guaranteed by, any of the following:
(i) the Government of the United Kingdom;
(ii) the Government of the United States of
America;
(iii) the Government of any territory within
the Commonwealth;
(iv) the African Development Bank, the Asian
Development Bank, the European Union, the European Investment
Bank, the International Finance Corporation, the International
Monetary Fund, or the International Bank for Reconstruction and
Development;
(c) deposits with a company registered under the Companies
Act that is a licensed financial institution within the meaning
of the Banking Ordinance or the Offshore Banks and Trust Companies
Ordinance;
(d) debentures issued by a quoted company;
(e) units in a quoted unit trust;
(f) quoted shares;
(g) freehold property situated in Anguilla and leasehold
property situated in Anguilla of which the unexpired term at the
time of the investment is not less than forty years and mortgages
of such freehold or leasehold property;
(h) shares in a quoted mutual fund.
2. In this Schedule, unless the context otherwise requires,
the following expressions have the following meanings:
"approved stock exchange" means The International
Stock Exchange of the United Kingdom and Republic of Ireland Limited
(including the Unlisted Security Market of the International Stock
Exchange), the New York Stock Exchange, the American Stock Exchange
and the National Association of Security Dealers' Automated Quotation
System of the United States of America; the major stock exchanges
of Australia, Austria, Belgium, Canada, Denmark, Finland, France,
Germany, Hong Kong, India, Italy , Japan, Malaysia, Mexico, Netherlands,
New Zealand, Norway, Singapore, South Africa, Spain, Sweden and
Switzerland; the major stock exchanges of the countries of Central
and South America;
"debentures" includes debenture stock and bonds,
whether constituting a charge on assets or not, and loan stock
or notes;
"quoted company" means a company the ordinary
shares in which are quoted on an approved stock exchange;
"quoted mutual fund" means an open end or closed
end mutual fund the shares in which are quoted on an approved
stock exchange;
"quoted shares" means shares quoted on an approved
stock exchange;
"quoted unit trust" means a unit trust the units
in which are quoted on an approved stock exchange;
"securities" includes shares, debentures, treasury
bills and tax reserve certificates;
"shares" include stock.
SCHEDULE 2
SECTION 33
POWERS OF TRUSTEES
1. Trust for sale
(1) The Trustees shall stand possessed of any real
property from time to time comprised in the Trust Fund Upon Trust
to sell the same with power to postpone the sale thereof or of
any part thereof for such period as they shall in their absolute
discretion think fit and shall stand possessed of all other investments
comprised in the Trust Fund Upon Trust at such discretion either
to retain the same in the existing state thereof for such period
as they shall think fit or at any time or times to sell the same
or any part thereof.
(2) The Trustees shall hold the net proceeds of any
sale of investments comprised in the Trust Fund and all other
moneys held or received by them as capital moneys Upon Trust to
invest the same at their discretion in or upon any of the investments
by this instrument authorised with powers to vary or transpose
such investments for or into others of a like nature.
2. Powers of Investment
(1) TRUST moneys to be invested under the trusts of
this instrument may be applied or invested in any currency and
in any part of the world in the purchase of or upon the security
of such common or preferred stocks shares mutual fund shares unit
trust units or other securities or commodities (including precious
metals) bonds notes debentures certificates of deposit or time
deposits land or other investments or property of whatever nature
(and whether or not incomeproducing or paying dividends
or interest) and whether involving liabilities or not or upon
such personal credit with or without security as the Trustees
in their absolute discretion think fit without being restricted
to trustee investments prescribed under the proper law governing
this instrument and to the intent that the Trustees shall have
the same powers in all respects as if they were absolute owners
beneficially entitled And in addition (but without prejudice to
the generality of the foregoing) the Trustees may invest the Trust
Fund in the shares or debentures of any company whatsoever and
wheresoever incorporated without the need for diversification
and without being liable for any loss occasioned thereby.
3. Power with mode of application of capital and income
ANY power by this instrument or by law conferred on the Trustees
to pay transfer appropriate or apply the Trust Fund or any income
thereof for the benefit of any beneficiary may at the discretion
of the Trustees be validly exercised (without prejudice to the
generality of such power or to any other mode of application)
(a) by paying or transferring the same to
the trustees of any settlement (whether or not such trustees are
resident in Anguilla and whether or not the proper law of such
settlement is the law of Anguilla) the provisions of which are
in the opinion of the Trustees for the benefit of such beneficiary
notwithstanding that such settlement may also contain trusts powers
or provisions (discretionary or otherwise) in favour of other
persons or objects; or
(b) (in case of any such person who is a minor)
by paying or transferring the same to such minor's parent or guardian
or some other person for the time being having the care or custody
of such minor upon the recipient undertaking to apply the same
for the benefit of the minor;
And the Trustees shall not thereafter be under any obligation
to see to the further application of the capital or income so
paid or transferred and the receipt of such trustees parent guardian
or other person shall be a full sufficient and complete discharge
to the Trustees.
4. Additional powers
The Trustees shall have the following powers in addition to those
conferred by law:
(1) Power to receive any property from any person
as an addition to the Trust Fund either by gift inter vivos or
by will or under the provisions of any other settlement or trust
or otherwise;
(2) Power to borrow on the security of the Trust Fund
and for such purpose to make any outlay out of the Trust Fund
or the income thereof and to enter into such contracts mortgages
charges or undertakings relating thereto as the Trustees may in
their absolute discretion think fit;
(3) Power to lend any part of the Trust Fund to any
person (whether or not a beneficiary) upon such terms (if any)
as to security repayment rate or interest and otherwise as the
Trustees in their absolute discretion may determine;
(4) With respect to any property comprised in the
Trust Fund power to exercise all powers relating thereto as if
beneficially entitled thereto and without being restricted in
any way by the office of trustee including (without prejudice
to the generality of the foregoing power)
(a) Power to vote upon or in respect of any
shares securities bonds notes or other evidence of interest in
or obligations of any corporation trust association or concern
whether or not the exercise of such power affects the security
or the apparent security of the Trust Fund or the purchase or
sale or lease of the assets of any such corporation trust association
or concern;
(b) Power to deposit any such shares securities
or property in any voting trust or with any depository designated
thereby;
(c) Power to give proxies or power of attorney
with or without power of substitution for voting or acting on
behalf of the Trustees as the owners of any such property; and
(d) Power to omit to register bonds or securities;
(5) Power (at the expense of the Trust Fund) to incorporate
or register or to procure the incorporation or registration of
any company (with limited or unlimited liability) in any part
of the world for any purpose including the acquisition of the
Trust Fund or any part thereof and so that (if thought fit) the
consideration on the sale of the Trust Fund to any such company
may consist wholly or partly of fully paid shares debentures debenture
stock or other securities of the company credited as fully paid
which shall be allotted to or otherwise vested in the Trustees
and be capital moneys in the Trustees' hands;
(6) Power at any time to apply part of the Trust Fund
or the income thereof in effecting or joining in effecting or
otherwise acquiring any policy of assurance on the life of any
beneficiary or of any other person or any endowment or other policy
and to maintain surrender exchange exercise any option thereunder
or otherwise deal with such policies as if the Trustees were absolutely
entitled thereto;
(7) Power to pay out at any time any part of the Trust
Fund in purchasing or acquiring or making improvements in or repairs
to or on any land or building (whether freehold leasehold or of
any other tenure or interest and of whatsoever description and
situate in any part of the world) in the occupation of or intended
for occupation by any beneficiary And power to permit any beneficiary
to occupy until sale of any land or building purchased or acquired
as aforesaid or otherwise comprised in the Trust Fund upon such
terms (as to payment or nonpayment of rent outgoings repairs
or otherwise) as the Trustees may think fit;
(8) Power at any time or times to lay out any part
of the Trust Fund in the purchase or other acquisition of any
yachts boats motor vehicles works of art household furniture plate
linen china cutlery other articles of household use ornament or
equipment and other chattels for the use of any beneficiary whether
occupying a building purchased or acquired as aforesaid or otherwise
And power to hand over to any such beneficiary for his use any
property so purchased or acquired by the Trustees as aforesaid
or otherwise forming part of the Trust Fund upon and subject to
such terms and conditions (if any) as to insurance preservation
maintaining inventories and otherwise as the Trustees think fit;
(9) Power to grant options for such consideration
and exercise at such time or times or within such period as the
Trustees think fit for the purchase of any property subject to
the trusts of this instrument or the acquisition of any interest
therein;
(10) Power to keep the Trust Fund either in or out
of Anguilla and if the Trustees think fit to hold in any part
of the world all or any securities or other property in bearer
form or registered in the name of the Trustees or nominees without
disclosing the fiduciary relationship;
(11) In the event of any duties fees or taxes whatsoever
becoming payable in any part of the world in respect of the Trust
Fund or any part thereof in any circumstances whatsoever power
to pay all such duties, fees or taxes out of the Trust Fund or
the income thereof with discretion as to the time and manner in
which the said duties, fees or taxes shall be paid and the Trustees
may pay such duties, fees or taxes notwithstanding that the same
shall not be recoverable from the Trustees or from any persons
interested under the trusts of this instrument or that the payment
shall not be to the advantage of such persons;
(12) Power to make such reserves out of the Trust Fund
or the income thereof as the Trustees deem proper for expenses,
taxes and other liabilities and to pay from capital or income
or to apportion between capital and income any expenses of making
or changing investments and selling exchanging or leasing (including
brokers commissions and charges) and generally to determine what
part of the expenses of administering the trusts of this instrument
shall be charged to capital and what part to income;
(13) Power to make execute and deliver deeds assignments
transfers leases mortgages instruments of pledge creating liens
contracts and other instruments sealed and unsealed;
(14) Power to institute prosecute and defend any suits
or actions or other proceedings affecting the Trustees or the
Trust Fund and to compromise any matter of difference or to submit
such matter to arbitration and to compromise or compound any debt
owing to the Trustees or any other claims and to adjust any disputes
in relation to debts or claims against them as trustees upon evidence
that the Trustees shall deem sufficient and to make partition
upon such terms (including if thought fit the payment or receipt
of equality money) as the Trustees shall deem desirable with coowners
or joint tenants besides the Trustees having any interest in any
property in which the Trustees are interested and to make partition
either by sale or by setoff or by agreement or otherwise;
(15) Power to make any distribution of the Trust Fund
pursuant to the trusts of this instrument in cash or in kind or
partly in cash and partly in kind and in the case of a distribution
to more than one person not strictly rateably but on the basis
of equal or other proportionate value (as the case may require)
according to the judgment of the Trustees which shall be binding
on all persons interested under this instrument;
(16) Power to take at the expense of the Trust Fund
or the income thereof the opinion of legal counsel concerning
any question arising under this instrument or on any matter in
any way relating to the Trust Fund or the duties of the Trustees
in connection with this instrument And the Trustees shall not
be liable for any action taken in good faith pursuant to or otherwise
in accordance with the opinion or advice of such counsel;
(17) Power
(a) to engage the services of such investment
counsel adviser or manager ("the Investment Adviser")
as the Trustees may from time to time think fit (including the
Settlor or any trustee of this instrument or any corporate trustee
or any parent subsidiary or affiliate of such corporate trustee)
in order to obtain advice on the investment and reinvestment of
the Trust Fund AND to delegate to the Investment Adviser without
being liable for any consequential loss discretion to manage the
portfolio or any part thereof within the limits and for the period
stipulated by the Trustees and the Trustees-
(i) shall settle the terms and conditions
for the remuneration of the Investment Adviser and the reimbursement
of the Investment Adviser's expenses as in their uncontrolled
discretion they deem proper and such remuneration and expenses
may be paid by the Trustees from and out of the Trust Fund; and
(ii) shall not be liable for any action
taken in good faith pursuant to or otherwise in accordance with
the advice of the Investment Adviser;
(b) to employ and pay at the expense of the
capital or income of the Trust Fund any agent or agents in any
part of the world whether solicitors, bankers, accountants, stockbrokers,
managers or other persons (including the Settlor or any trustee
of this instrument or any corporate trustee or any parent subsidiary
or affiliate of such corporate trustee) to transact any business
or to do any act requiring to be transacted or done in execution
of the trusts of this instrument including the receipt and payment
of money and the execution of documents and in any such event
the trustee, the corporate trustee or the parent subsidiary or
the affiliate of such corporate trustee is entitled to charge
and be paid and to retain for his or its own account all usual
professional and other fees and commissions normally paid for
such services including fees and commissions shared with other
agents;
(18) Power for all or any of the Trustees
(a) to exercise or join or concur in exercising
all or any of the powers and discretions by this instrument or
by law given to the Trustees notwithstanding that such trustee
may have a personal interest in the mode or result of exercising
any such power or discretion or may be interested therein in some
other fiduciary capacity but any trustee may abstain from acting
except as a merely formal party in any matter in which he may
be so interested as aforesaid and may allow his co trustees
to act alone in the exercise of such powers and discretion in
relation to such matter; and
(b) to purchase or sell any property notwithstanding
that the vendor or purchaser is the same as or includes the Trustees
or any of them PROVIDED that the price payable on any such purchase
or sale is certified as fair and reasonable by an independent
valuer employed for the purpose by the Trustees;
(19) Power to effect any transaction concerning or
affecting the Trust Fund or any other property whatsoever and
to do all other acts and things which the Trustees may in their
absolute discretion think expedient in the interests of the Trust
Fund or any beneficiary And for the purpose of this subparagraph
"transaction" includes any sale exchange assurance conveyance
grant lease surrender reconveyance release reservation or other
disposition and any purchase or other acquisition and any covenant
contract licence option right of preemption and any compromise
or partition and any company reconstruction or amalgamation and
any other dealing or arrangement And "effect" has the
meaning appropriate to the particular transaction And references
to property include references to restrictions and burdens affecting
the property;
(20) All the powers of sale (by public auction or private
contract) exchange mortgaging leasing or other disposition management
repair building and improvement and all other powers of an absolute
beneficial owner in respect of any property for the time being
comprised in the Trust Fund including (without prejudice to the
generality of the foregoing) the power of borrowing on the security
of the Trust Fund and for such purpose to make any outlay out
of the income or capital of the Trust Fund and to make such contracts
and to enter into such undertakings relating thereto as the Trustees
in their absolute discretion shall think fit;
(21) Power to spend capital moneys of the Trust Fund
on erecting buildings on land for the time being comprised in
the Trust Fund or on demolishing and rebuilding or on altering
or improving buildings on it or otherwise on improving said land
as the Trustees think fit (and any certificate of any architect
or surveyor employed by the Trustees or of any Trustee who is
qualified as an architect or surveyor that the work specified
in such certificate consists only of alteration or improvement
shall be conclusive as between the Trustees and all persons interested
under the Trust that any capital money spent on such work was
properly spent by the Trustees in exercise of the powers conferred
by this sub paragraph) And to employ any of the capital
of the Trust Fund in repairing, developing, enlarging, equipping,
furnishing, insuring and maintaining the said land and buildings
and fixtures on it;
(22) Where the trust property includes any chattel
the Trustees may employ any of the capital of the Trust Fund in
repairing or insuring such chattel and may store, lend or hire
it on such terms as the Trustees think fit;
(23) Power at any time in the Trustees' discretion
and on such terms as they deem fit to appropriate or to apply
the capital or income of the Trust Fund or any part thereof in
order to secure the payment of money owed by any beneficiary or
the performance of any obligations of any beneficiary and to
give any guarantee or to become surety for any beneficiary and
for such purposes to mortgage or charge any investments or property
for the time being forming part of the Trust Fund or to deposit
or transfer any such investments or property with or to any person
by way of security.
(24) Power from time to time by deed revocable or irrevocable
wholly or partially to release extinguish or restrict any power
by this instrument or by law conferred on the Trustees notwithstanding
the fiduciary nature of any such power (but not so as to invalidate
any prior exercise thereof).
5. Exclusion of apportionments
UNLESS the Trustees in their absolute discretion shall otherwise
determine all dividends and other income received shall be treated
for all purposes as income accruing at the due date of payment
whether or not such dividends or income may have been earned and
accrued wholly or partially in respect of a period prior to such
date.
6. Protection of third parties in dealings with trustees
(1) NO person or corporation dealing with the Trustees
and no purchaser on any sale made by the Trustees shall be concerned
to enquire into the propriety or validity of any act of the Trustees
or to see to the application of any money paid or property transferred
to or upon the order of the Trustees.
(2) NO firm association or corporation any of whose
securities are comprised in the Trust Fund and no purchaser or
person dealing with any trustee purporting to act under any delegation
of authority from any other trustee shall be required to ascertain
or enquire whether a case exists in which such delegation is permitted
or whether such delegated authority is still subsisting.
(3) WHEN anything is dependent upon the value of any
property or the existence of any fact a certificate of the Trustees
as to such value or fact shall be conclusive in favour of anyone
acting thereon in good faith.
7. Power in relation to underlying company/ies
ANY trustee of this instrument and any director officer or employee
of a corporate trustee or of a parent subsidiary or affiliate
of such corporate trustee may act as a director officer manager
or employee of any company whose shares or debentures may be comprised
in the Trust Fund or as a director officer manager or employee
of any subsidiary or holding company of any such company and may
retain for himself or itself any remuneration which he or it may
receive as such director officer manager or employee notwithstanding
that any votes or other rights attaching to such shares or debentures
may have been instrumental either alone or in conjunction with
other matters or by reason of their nonexercise in procuring
or continuing for him or it his or its position as such director
officer manager or employee or that his or its qualifications
for any such position may be constituted in part or in whole by
any such shares or debentures.
8. Trustee not bound to interfere with company management
THE Trustees shall not be bound or required to interfere in the
management or conduct of the affairs or business of any company
in which the Trust Fund may be invested (and whether or not the
Trustees have the control of such company) And so long as no trustee
of this instrument has notice of any wilful negligence wilful
default or fraud or dishonesty on the part of the directors having
the management of such company they may leave the same (including
the payment or nonpayment of dividends) wholly to such directors
And no beneficiary is entitled as such beneficiary in any way
to compel control or forbid the exercise (including in any particular
manner) of any voting or other rights at any time vested in the
Trustees with regard to such company including without prejudice
to the generality of the foregoing any powers the Trustees may
have (even if also directors of such company) of compelling such
company to distribute any dividend.