No. 22 of 2004. The International Trust Act, 2004. 1 ANTIGUA
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[ L.S. ]
I Assent,
James B. Carlisle,
Governor-General.
ANTIGUA AND BARBUDA
No. 22 of 2004
AN ACT to provide for the law relating to International Trusts
and other incidental and connected matter.
[ Published in the Official Gazette Kll. AXIV
No. 89 dated 2nd December, 2004. ]
ENACTED by the Parliament of Antigua and Barbuda as
follows:
PART 1-PRELIMINARY
1. This Act may be cited as the International Trust Act, 2004. Short title.
2. In this Act unless the context otherwise requires - Definition and
Interpretation.
"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;
"Board" means the Board established under Section 3 16
of the Antigua and Barbuda International Business Corpo-
ration Act, Cap. 222 or other Act replacing the same;
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"breach of trust" means a breach of any duty imposed on a
trustee by this Act or by the terms of the international trust;
"charitable purpose" shall be construed in accordance
with the provisions of section 7 of this Act;
"Court" means the High Court of Antigua and Barbuda;
"creditor" means a person to whom an obligation is owed;
"foreign trust" means a trust which provides for the law of
a jurisdiction other than Antigua and Barbuda to be the
governing law of all aspects of that trust;
"formalities" in relation to a disposition of property means
documentary and other actions requifed 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 mental or bodily
infirmity or is a corporation;
"functions" includes rights, powers, discretions,
obligations, liabilities and duties;
"the Gazette" means the Official Gazette of Antigua and
Barbuda;
"governing law" means the law governing a trust registered
in Antigua and Barbuda or elsewhere;
"heirship rights" means any right, claim or interest in,
against or to property of a person arising or accruing in
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consequence of that person's death, other than any such
right, claim or interest created by will or other voluntary
disposition 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 assurances;
"intent to defraud" means an intention of a settlor wilfully
to defeat an obligation owed to a creditor;
"interest" in relation to a beneficiary, means his interest
under an international trust;
"international trust" means a trust registered under this
Act and in respect of which:
(a) at least one of the trustees is either:
(i) a corporation incorporated under the
Antigua and Barbuda International
Business Corporation Act, Cap. 222; or
(ii) a licensed trust company doing business
in Antigua and Barbuda;
(b) the settlor and beneficiaries are at all times
non-resident; and
(c) the trust property does not include any land
situated in Antigua and Barbuda;
"Minister" means the Minister for the time being charged
with the responsibility of finance in Antigua and Barbuda;
"minor" means a person who has not attained full age
under the law of his domicile;
"non-resident" means
(a) an individual not domiciled in Antigua and
Barbuda;
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(b) an individual not ordinarily resident in Antigua
and Barbuda;
(c) a corporation incorporated under the Antigua
and Barbuda International Business Corpo-
ration Act, Cap. 222; or
(d) a limited liability company;
''person'' means a natural person or a body corporate;
"personal relationship" includes every form of relationship
by blood or marriage, including former marriage, and in
particular a personal relationship between two persons
exists if-
(a) one is the child of the other, natural or adopted
(whether or not the adoption ik recognised by
law), legitimate or illegitimate; or
(b) one is married to the other (whether or not the
marriage is recognised by law); or
(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 responsibhties analogous to those
of parent and chlld 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;
(a) means property of any description, wherever
situated, including any share therein, but
excluding any land in Antigua and Barbuda,
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(b) in relation to rights and interest, includes rights
and interests whether vested, contingent,
defeasible or future;
"protector" in relation to a trust means a person who is
the holder of a power which when invoked is capable of
directing a trustee in matters relating to the trust and in
respect of which matters the trustee has discretion and
includes a person who is the holder of a power of
appointment or dismissal of trustees;
"provisions of this Act" includes the provisions of any
Order hereunder;
"registrar" means the person appointed by the Roard who
will perform the duties of registrar under this Act;
"relatives" in relation to an individual means his father
and mother, his spouse, the father and mother of his
spouse, his brothers and sisters, the brothers and sisters
of' his spouse, his children and remoter issue and the
spouses of such children and issue;
"settlor" means a person who provides trust property or
makes a testamentary disposition on trust or to a trust;
"terms of a trust" means the terms of an international trust,
and other ternu applicable under its proper law;
''Trust'' where a person (known as "a trustee") holds or
has 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
puxpose which is not for the benefit only of
the trustee; or
(c) for such benefit as is mentioned in
sub-paragraph (a) and also for any such
purpose as is mentioned in sub-paragraph (b).
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"trustee" has the meaning given above and includes a
corporate trustee;
"Trustee Company" means a company incorporated under
the provisions of the International Business Corporation
Act, Cap. 222. However a Company, which is not also
licensed as a Trust Company under the provisions of the
International Business Corporation Act, Cap. 222, may
act as a trustee for no more than three trusts.
"trust property" means property held on trust.
Validity of 3. (1) An international trust registered under this Act shall be
valid and enforceable notwithstanding that it may be invalid
trusts. according to the law of the settlor's domicile or residence or
place of current incorporation.
(2) An international trust shall be invalid and unenforceable
to the extent that -
(a) it purports to do anything contrary to the laws of
Antigua and Barbuda; or
(b) 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 laws of Antigua and
Barbuda;
(c) the trust assets, or any part thereof, are the proceeds
of a crime for which the settlor is convicted.
. Proper law of 4. (1) Subject to sub-section(4), the proper law of an interna-
international tional trust shall be -
trusts.
(a) the law expressed by the terms of the trust or
intended by the settlor to be the proper law;
(b) if no such law is expressed or intended, the law with
which the international trust has its closest
connection at the time of its creation;
(c) if the law expressed by the terms of the trust or
intended by the settlor to be the proper law, or the
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law with which the international trust has its closest
connection at the time of its creation, does not
provide for international trusts or the category of
international trust involved then the proper law of
the international trust shall be the law of Antigua
and Barbuda.
(2) In ascertaining the'law with which an international trust
has its closest connection, reference shall be made in particular
to -
(a) the place of administration of the trust designated
by the settlor;
(b) the status of the assets of the trust;
(c) the place of residence or business of the trustee;
(d) the objects of the trust and the places where they
are to be hlfilled.
(3) The terms of an international trust may provide for a
severable aspect of the trust (particularly the administration of
the trust) to be governed by a different law from the proper law
of the trust.
(4) The terms of an international trust may provide for the
proper law of the trust or the law governing a severable aspect
of the trust to be changed from the law of one jurisdiction to the
law of another jurisdiction.
(5) Where the proper law of an international trust or the law
governing a severable aspect of an international trust is changed
from the law of another jurisdiction (here called "the old law") to
the law of Antigua and Barbuda no provision of the old law shall
operate so as to render the trust void, invalid or unlawhl or to
render void, invalid or unlawful any functions conferred on the
trustee under the law of Antigua and Barbuda.
( 6 ) Where the proper law of an international trusr or the law
governing a severable aspect of an international trust is changed
from the law of Antigua and Barbuda to the law of another
jurisdiction (here called "the new law") no provision of the law
of Antigua and Barbuda shall operate so as to render void,
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invalid or unlawful any functions conferred on the trustee under
the new law.
Maximum 5. (1) Subject to sub-section (2), the maximumduration of an
duration of international trust shall be two hundred years from the date of
international
trusts and of its creation and an international trust shall terminate on the two
accumulation of hundredth anniversary of the date of its creation unless it is
income. terminated sooner.
(2) An international trust established for a charitable purpose
or purposes may have a duration exceeding two hundred years.
(3) The rule of law known as the rule against perpetuities
shall not apply to an international trust to which this section
applies.
(4) The terms of an international trust may direct or authorise the
accumulation of all or pa* of the income of the trust for a period not
exceeding the maximum duration of the trust.
PART 2-PROTECTIVE OR SPENJlTJXRWI',
CHARITABLE AND NON-CHARITABLE
IN'ERNATIONAL TRUSTS
Protective or 6. (1) The terms of an international trust may make the interest
Spendthrift of a beneficiary -
trusts.
(a) subject to termination;
(b) 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; or
(c) subject to a restriction on alienation of or dealing in
that interest;
and such a trust shall be known as a protective or 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 the property -
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(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 such shares) as the trustee in his absolute
discretion shall appoint -
(i) the beneficiary or 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
Antigua and Barbuda.
(3) In sub-section (2) above a "determining event" shall mean
the occurrence of any event or any act or omission on the part of
the beneficiary (other than the giving of conserlt to an advance-
ment of trust property) which would result in 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.
7. (1) For the purposes of this Act and subject to sub-sections Charitable trusts.
(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;
any other purposes which are beneficial to the
community.
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(2) A purpose shall not be regarded as charitable unless the
fulfillment of the 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 Antigua and Barbuda or elsewhere and whether
it is beneficial to the community in Antigua and Barbuda or
elsewhere.
Trusts for 8. (1) An international trust may be created for a purpose
nOn-charitable which is non-charitable provided that -
purposes.
(a) the purpose is specific, reasonable, and capable of
fulfillment;
(b) the purpose is not immoral, unlawful or contrary to
the public policy of Antigua and Barbuda; 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
protector.
(2) If the Minister has reason to believe that there is no
protector of an internationakfrust for a non-charitable purpose
or the protector is unwNhgly or incapable of acting, helmay
appoint a person to be protector of the trust and such,person
shall from the date or appointment exercise the functions of the
trust.
Protector of a 9. (1) The terms of an international trust may provide for the
trust. office of 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 appoint a new or
additional trustee;
(b) such further powers as are conferred on the protector
by the terms of the trust or by this Act.
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(3) The protector of an international 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 tenns of the international trust,in the exer-
cise 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 a majority 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.
PART 3-TERMINATION OR FAILURE OF
INTERNATIONAL TRUSTS
10. (1) Subject to the terms of the international trust and to Failure or lapse
any order of the Court, where - of interest.
(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 heldby 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) Sub-section (1) shall not apply to an international trust
established for a charitable purpose to which section 1 1 applies.
11. (1) Where international trust property is held for a Failure of
charitable purpose and - charitable trusts.
(a) the purpose has been, as far as may be, fulfilled;
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(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 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
ceased to be suitable or to be practicable in
administering the gift;
(e) the purpose has been adequately provided for by
other means;
(f) the purpose has ceased to be charitable (by being
useless or harmful to the community or otherwise);
(g) 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; 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 trustee, may declare to be consistent
with the original intention of the settlor.
(2) Where international trust property is held for a
charitable purpose, the Court, on the application s f 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 bhe'original intention of the
settlor.
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(3) The Court shall not make a declaration under sub-section
(1) above or approve an arrangement under sub-section (2)
unless satisfied that any person with a material interest in the
trust has had an opportunity of being heard.
12. (1) On the termination of an international trust the trust Termination of
property shall, subject to sub-section (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 a
reasonable provision for liabilities (existing, future, contingent
or other).
13. (1) Without prejudice to any power of the Court and Termination by
notwithstanding the terms of the international trust, where all beneficiaries.
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 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 sub-section (1).
PART 4-BREACHOFTRUST
14. (1) Subject to the provisions of this Act and to the t e r n Liability for
of the trust, a trustee who commits or concurs in a breach of breach of trust.
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 co-tmstee unless -
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(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 breach.
(4) Where the 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 wilfbl
misconduct.
15. (1) A person who derives a profit from a breach of trust,
shall be deemed to be a trustee of the profit or property, unless
constructive he derives or obtains it in good faith and without actual,
trusts. constructive or implied notice of the breach of trust.
(2) A person who becomes a trustee by virtue of sub-section
(1) shall deliver up the profit or property to the person properly
entitled to it.
(3) This section does not exclude any other circumstance in
which a constructive trust may arise.
Tracing trust 16. Without prejudice to the personal liability of a trustee,
property. 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.
Beneficiary may 17. (1) A beneficiary may relieve a trustee of liability to him
relieve or for a breach of trust or indemnify a trustee against liability for a
indemnify
trustee. breach of trust.
(2) Sub-section (1) docs not apply if the beneficiary -
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(a) is a minor or a person under legal disability;
(b) does not have I l l knowledge of all material facts; or
(c) is improperly induced by the trustee to act under
subsection (1).
18. The Court may relieve a trustee wholly or partly of liability Power to relieve
for a breach of trust where it appears to the Court that the trustee personal tru tee
has acted honestly and reasonably and ought fairly to be excused liability.
for the breach of trust or for omitting to obtain the directions of
the Court in the matter in which the breach arose.
19. Where a trustee commits a breach of trust at the Power to make
instigation, at the request or with the concurrence of a beneficiary, peneficiaries
the Court (whether or not the beneficiary is a minor or a person ~ndemnify.
under legal disability) may impound all or part of his interest by
way of indemnity to the trustee or any person claiming through
him
PART 5-POWERS OF THE COURT
20. The Court has jurisdiction in respect of any matters Jurisdiction of
concerning an international trust where -. the Court.
(a) the proper law of the trust is the law of Antigua and
Barbuda;
(b) a trustee of the trust is resident in Antigua and
Barbuda;
(c) any part of the administration of the trust is carried
on in Antigua and Barbuda.
21. (1) On the application of a trustee, a beneficiary, a settlor General powers
or his personal representatives, a protector, or with the leave of the
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
of any power by a trustee, the appointment,
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remuneration or conduct of a trustee, the
keeping or submission of account, and the
making of payment, 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 of 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
Act, 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 thlnks 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 Act 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,
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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.
22. (1) The Court may declare an international trust to be Courts
invalid if - determination
of validity.
(a) the trust was established by duress, mistake, undue
influence or misrepresentation; or
(b) the trust is immoral or contrary to the public policy
of Antigua and Barbuda; or
(c) 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
(d) the settlor was, at the time of its creation, incapable
under the law in force in Antigua and Barbuda of
creating such a trust.
(2) Where an international trust is created for two or more
purposes of which some are lawful and others are not or where
some of the terms of the trust are lawful 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 h a y declare that the trust is
valid as to the terms which are valid and the purposes
which are lawful.
(3) Where an international trust is partially invalid the Court
may declare what property is to be held subject to the trust.
(4) 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 death.
(5) In determining the existence and validity of an international
trust registered under this Act the Court shall apply -
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(a) the provisions of this Act;
(b) any other law of Antigua and Barbuda; and
(c) any other law which may be applied;
if to do so would validate the trust.
Avoidance of 23. (1) Where it is proven beyond reasonable doubt by a
fraud. creditor that a trust settled or established or property disposed
to a trust -
(a) was so settled established or disposed by or on
behalf of the settlor with principal intent to defraud
that creditor of the settlor; and
(b) did at the time such settlement, establishment or
disposition took place render the settlor insolvent
or without property by which that creditor's claim (if
successful) could have been satisfied,
then such settlement, establishment or disposition shall not be
void or voidable and the international trust shall be liable to
satisfy the creditor's claim and such liability shall only be to the
extent of the interest that the settlor had in the property prior to
settlement, establishment or disposition and any other
accumulation to the property (if any) subsequent thereto.
(2) In determining whether a trust, settled or established or a
disposition, has rendered the settlor insolvent or without
property by which a creditor's claim (if successful) may be
satisfied, regard shall be had to the fair market value of the
settlor's property, (not being property of or relating to the trust)
at the time immediately after the settlement, establishment or the
disposition referred to in sub-section (l)(b) and in the event
that the fair market value of such property exceeded the value of
the creditor's claim, at that time, after the settlement,
establishment or disposition, then the trust so settled or
established or the disposition shall for the purposesofthis Act
be deemed not to have been so settled or established or the
property disposed of with intent to defraud the creditor.
(3) A trust settled or established and a disposition to such
trust shall not be fraudulent as against a creditor of a settlor -
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(a) if settled, established or the disposition takes place
after the expiration of two years from the date that
such creditor's cause of action accrued; or
(b) where settled, established or the disposition takes
place before the expiration of two years from the
date that the creditor's cause of action accrued, that
creditor fails to commence such action before the
expiration of one year from the date such settlement
establishment or disposition took place.
(4) A trust settled or established and a disposition of property
to such trust shall not be fraudulent as against a creditor of a
settlor if the settlement, establishment or disposition of property
took place before that creditor's cause of action against the
settlor accrued or had arisen.
(5) A settlor shall not have imputed to him an intent to defraud
a creditor, solely by reason that the settlor -
(a) has settled or established a trust or has disposed of
property to such trust within two years from the
date of that creditor's cause of action accruing;
(b) has retained, possesses or acquires any of the
powers or benefits referred to in paragraphs (a) to
fl of section 46;
(c) is a beneficiary.
(6) Where a trust is liable to satisfy a creditor's claim in the
manner provided for in sub-section (I), that creditor's rights to
recovery shall be limited to the property referred to in subsection
(I), or to the proceeds of that property, to the exclusion of any
claim, right or action against any trustee or any other property
of the trust.
(7) For the purpose of this section the onus of proof of the
settler's intent to defraud the creditor lies on the creditor.
(8) For the purpose of this section -
(a) the date of the cause of action accruing shall be, the
date of that act or omission which shall be relied
ANTIGUA 20 The International Trust Act, 2004. No. 22 of 2004.
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upon to either partly or wholly establish the cause
of action, and if there is more than one act or the
omission shall be a continuing one, the date of the
first act or that date that the omission shall have
first occurred, as the case may be, shall be the,date
that the cause of action shall have accrued;
(b) the term "cause of action" means the earliest cause
of action capable of assertion by a creditor against
the settlor of a trust or, as the case may be, against
the settlor of property upon a trust by which that
creditor has established (or may establish) an
enforceable claim against that settlor;
(c) the entry of judgment in any proceeding shall not
constitute a separate cause of action.
(9) The provisions of this section shall apply to all actions
and proceedings brought in any court, however described,
against any person (whether a party to the proceedings or not)
with regard to the settlement or establishment of an international
trust or the disposition of property to such a trust, or receipt of
property by or for such a trust and the remedy conferred by sub-
section (1) shall be the sole remedy available in such an action
or proceeding to the exclusion of any other relief or remedy
against any party to the action or proceeding.
(10) Failure by a creditor to present all claims arising out of
any controversy and join all parties with a material interest shall
prevent that creditor from presenting such claims and bringing
an action against such parties in a subsequent proceeding.
(1 1) For the purposes of this section the term "creditor" means
a creditor of the settlor, including a judgment creditor and an
assignee fiom such creditor of any claim and includes any person
who alleges a cause or action against a settlor.
Saving of certain 24. In the event that a trust shall be declared invalid pursuant
rights. to this Act, if the Court is satisfied that the beneficiary has not
acted in bad faith -
(a) the beneficiary shall have a first and paramount
charge over the trust property of an mount equal
to the entire costs properly incurred by him in the
No. 22 of 2004. The International Trust Act, 2004. 21 ANTIGUA
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defense of the action or proceedings (and not merely
such costs as might otherwise be allowed by the
Court); and
(b) the trust shall be declared invalid subject to the
proper fees, costs, pre-existing rights, claims and
interests of the beneficiary.
25. An international trust shall be declared invalid only to Extent of
the extent necessary to satisfy the obligation of a creditor at invalidity.
whose instance the trust was declared invalid together with
such costs as the Court may allow.
26. (1) Nothing in this Act shall validate any disposition of No validation of
property which is neither owned by tl~e settlor nor the subject of property
a power in that behalf vested in the settlor. vested in settlor.
(2) This Act shall not affect the recognition of any foreign
laws in determining whether the settlor is the owner of such
property or the holder of such power referred to in sub-section
(1) of this section.
27. ~o twi ths tanding the provisions of any treaty or Foreign
convention; the provisions of any statute; any rule of law, or Judgment not
equity, to the contrary, no proceedings for or i r ~ relation to the enforceable.
enforcement or recognition of a judgment obtained in a
jurisdiction other than Antigua and Barbuda against -
(a) an international trust;
(b) a settlor of an international trust;
(c) a trustee of an international trust;
(d) a protector of an international trust;
(e) a beneficiary of an international trust;
fl a person appointed or instructed in accordance with
the express or implied provisions of an instrument
or disposition to exercise a function or undertake
any act, matter or thing in connection with an
international trust; or
ANTIGUA 22 The International Trust Act, 2004. No. 22 of 2004.
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(g) property of either an international trust or of a trustee
or a beneficiary thereof;
shall be entertained by any Court in Antigua and Barbuda if -
(i) that judgment is based upoil the application
of any law inconsistent with the provisions of
this Act; or
(ii) that judgment relates to a matter or particular
aspect that is governed by the laws of Antigua
and Barbuda.
Exclusion of 28. No international trust governed by this Act and no
foreign laws. disposition of property to be held upon the trust shall be
declared 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 recognize the concept of a trust either in part or
in whole; or
(b) the international trust or disposition avoids or
defeats rights, claims or interests conferred by the
law of a foreign jurisdiction upon any person or,
contravenes any rules, law, judicial or administrative
order or action intended to recognize, protect,
enforce or give effect to any such rights, claims or
interest; or
(c) the laws of Antigua and Barbuda or the provisions
of this Act are inconsistent with any foreign law.
Applications for 29. A trustee may apply to the Court for directions as to how
directions. he should or might act in any of the affairs of the trust, and the
Court may make such order as it thinks fit.
Payment of 30. The Court may order the cost and expenses of and
costs. incidental to an application to the Court under this Act to be
paid from the trust property or in such manner and by such
persons as it thinks fit.
No. 22 of 2004. The International Trust Act, 2004. 23 ANTIGUA
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PART 6 -TRUSTEES, PROTECTORS AND
BENEFICIARIES
31. (1) A beneficiary shall be - Beneficiaries of
trusts.
(a) identifiable by name; or
(b) ascertainable by reference to -
(i) a class; or
(ii) a relationship to some person whether or not
living at the time of thk creation of the trust or
at the time which under the terms of the trust
is the time by reference to which members of a
class are to be determined.
(2) The terms of a trust may provide for the addition of a
person as a beneficiary or the exclusion of a beneficiary from
benefit.
(3) The terms of a trust may impose upon a beneficiary an
obligation as a condition for benefit.
(4) A settlor or trustee of a trust may also be a beneficiary of
the trust.
32. (1) Subject to the terms of the trust, a beneficiary may Disclaimer of
disclaim his interest or any pas of it, whether or not he has peneficial
~nterest. received any benefit from it.
(2) A disclaimer shall be in writing and subject to the terms of
the trust, may be temporary and may, if the disclaimer so provides
be revoked in the manner and circumstances described or referred
to therein.
(3) A disclaimer is not effective until received by a trustee.
33. (1) Unless the terms of the trust provide for a greater Number of
number, the minimum number of trustees shall be one. trustees.
(2) A trust shall not cease to be valid by reason only that
there is no trustee or fewer than the number of trustees required
by the terms of the trust.
ANTIGUA 24 The International Trust Act, 2004. No. 22 of 2004.
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(3) Where there is no trustee or fewer than the number of
trustees required by the terms'6f 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.
Appointment of 34. (1) Where the terms of a trust contain no provision for the
new or appointment of a new or additional trustee, then -
additional
trustees.
(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 successor); or
(c) the last remaining trustee; or
(d) the personal representative or the 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 hnctions and may act as if he
had been originally appointed a trustee.
(3) A trustee having power to appoint a new trustee who fails
to exercise such power may be removed from office by the Court.
(4) On the appointment of a new or additional trustee anythmg
requisite for vesting the trust property in the trustees for the
time being of the trust shall be done.
No. 22 of 2004. The International Trust Act, 2004. 25 ANTIGUA
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35. A corporate trustee may - Corporate
trustees.
(a) act in connection with a trust by 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.
PART 7-REGISTRATION OF INTJCRNATIONAL
TRUSTS
36. (1) The registrar shall maintain a register of international Registration of
trusts. trusts.
(2) Where a trust provides for the law of Antigua and Barbuda
to be the governing law of all or any aspects of that trust an
application for entry on the register as an international trust
shall be made to the registrar within 45 days of the date on which
the trust is created, settled or established.
(3) Where a trust provides for the law of a jurisdiction other
than Antigua and Barbuda to be the governing law of all aspects
of that trust and the governing law of all or any aspects of the
trust is changed to the law of Antigua and Barbuda, an
application for entry on the register as an kternational trust
shall be made to the registrar within 45 days of the date on which
the governing law is changed.
(4) An application for entry on the register of international
trusts shall be made in the manner and form prescribed by the
registrar.
(5) An application under sub-section (4) shall be accompanied
by -
(a) the prescribed fee;
(b) notice of the name and registered office of the trust;
(c) a certificate from a trustee company, a barrister, a
solicitor or an attorney at law certifying -
ANTIGUA 26 The International Trust Act, 2004. No. 22 of 2004.
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(i) that the trust upon registration will be an
international trust;
(ii) the date on which the trust was created, settled
or established; and
(iii) in the case of a foreign trust, the law under
which the trust was settled and the date on
which the trust was amended to provide for
the law of Antigua and Barbuda to be the
governing law of all or any aspects of that
trust.
(6) On the application of a trustee company, a barrister, a
solicitor or an attorney at law, the registrar may, if satisfied that
there is good reason for any delay in registration, extend the
period of 45 days mentioned in sub-section (2) or (3) of this
section.
(7) The registrar shall, on receipt of the prescribed fee, the
notice and certificate required under sub-section (5) -
(a) enter on the appropriate register the name of the
trust, the date of creation, settlement or
establishment of the trust and the address of the
registered office of the trust and in the case of a
foreign trust, the date on which the trust was
amended to provide for the law of Antigua and
Barbuda to be the governing law of all or any aspects
of that trust;
(b) issue a certificate of registration in the prescribed
f o m
(8) A certificate of registration under the hand and seal of the
registrar shall be conclusive evidence that all the requirements
of this Act in respect of registration have been complied with.
Annual 37. (1) A Cerfificate of registration issued in accordance with
certificate of section 36 shall be valid and effective for a period of one year
registration. from the date of registration specified in that certificate.
(2) An application for renewal of registration shall be made
by -
No. 22 of 2004. The International Trust Act, 2004. 27 ANTIGUA
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(a) filing with the Registrar an application for renewal
in the prescribed form; and
(b) payment of the prescribed fee.
(3) An application for renewal of registration shall be made
not later than 90 days after the date of expiry of the last certificate
of registration and no application for renewal of registration
shall be granted unless such application is in accordance with
sub-section (2) hereof.
(4) On the application of a trustee company, a barrister, solicitor
or attorney at law, the registrar may, if satisfied that there is good
reason for any delay in renewal, extend the period of 90 days
mentioned in sub-section (3) of this section.
(5) Every renewal of registration shall take effect from the
date of expiry of the last certificate of registration.
(6) Every renewal of registration shall be for a period of one
year from the date of expiry of the last certificate of registration.
(7) The provisions of this Act shall cease to apply to any
trust that fails to renew its registration in accortlance with this
section.
38. Where an international trust which has been registered Notification of
terminates, the trustee shall notify the Registrar and return
the certificate of registration a,nd the Registrar shall then
cancel the entry on the register and cancel the certificate of
registration.
39. The register shall not be open for inspection except that Inspection of
a trustee of a trust may in writing authorise a person to inspect register.
the entry of that trust on the register.
40. The Minister may, on the recommendation by the Board, Minister may
by Order published in the Gazette, vary the fees payable under vav fees.
this Act.
41. (1) The registered office of an international trust shall be Registered
the office of the trust company or corporation which is a trustee. office.
(2) The address for service of any documents upon an intern-
tional trust shall be the registered office of that trust.
ANTIGUA 28 The International Trust Act, 2004. No. 22 of 2004.
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PART 8-EXEMPTION FROM TAXES
Exemption from 42. Notwithstanding any provision to the contrary in any
taxes and duties. enactment, a trust registered under this Act shall be exempt
from -
(a) all income tax;
(b) all estate, inheritance, succession and gift tax
payable with respect to the trust property by reason
of any death;
(c) stamp duty with respect to all instruments relating
to the trust property or to transactions carried out
by the trustee on behalf of the trust;
(d) all exchange controls.
PART 9 -MISCELLANEOUS
Commencement 43. (1) No action or proceeding whether pursuant to this Act
of proceedings. or at common law or in equity -
(a) to set aside the settlement of an international trust;
(b) to set aside any disposition to any international
trust; or
(c) against a trustee or trustees for breach of trust
shall be commenced, unless such action or proceeding is com-
menced in the Court before the expiration of two years from -
(d) the date of the settlement of the international trust
that is sought to be set aside;
(e) the disposition to the international trust that is
sought to be set aside; or
the breach of trust by the trustee or trustees;
as the case may be.
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(2) No action or proceeding whether pursuant to this Act
or at common law or in equity shall be commenced by any
person -
(a) claiming to have had an interest in property before
that property was settled upon or disposed to an
international trust; and
(b) seeking to derive a legal or equitable interest in that
property;
unless such action or proceeding is commenced in the Court
before the expiration of two years from the date that the property
referred to in paragraphs (a) and (b) was settled upon or disposed
to an international trust.
(3) No action or proceeding to which sub-sections (1) or (2)
of this section or to which section 23 shall apply, v:hetfier sub-
stantive or interlocutory in nature, shall be determined and no
order shall be made, or granted by the Court (including any
injunction that shall have the effect of preventing the exercise
of, or restoring to a person any rights, duties, obligations or
power or preserving, granting custody of, detaining or inspect-
ing any property) unless, the applicant shall first satisfy the
Court by affidavit, that -
(a) the action or proceeding has been commenced in
accordance with sub-sections (1) or (2) of this
section;
(b) where the action or proceeding shall allege fraud or
be founded upon some other action or proceeding
alleging fraud, the determination or order sought
would not be contrary to the provisions of section
23; and
(c) that the requirements of section 52 have been
W e d .
(4) Every affidavit required to be filed pursuant to sub:section
(3) shall be made by the person on whose behalf the action or
proceeding is brought or, in the case of a body corporate, an
officer thereof, and every such person or officer as the case may
be, shall depose as to -
ANTIGUA 30 The International Trust Act, 2004. No. 22 of 2004.
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(a) the circumstances of the cause of action in respect
of which the action or proceedings are brought;
(b) the date upon which the cause of action shall have
accrued;
(c) the date upon which the property, in respect of which
the action or proceeding is brought, was settled on
or disposed to the international trust;
(d) whether an action or proceeding have been
commenced in respect of the cause of action and if
so, the date upon which that action or those
proceedings were commenced.
(5) The provisions of this section shall apply to every trust
expressed to be governed by the law of Antigua and Barbuda
and, in the event that a foreign trust shall change the law by
which it is governed to that of Antigua and Barbuda, then every
proceeding after the change in registration -
(a) by a person claiming to be interested in or to be
prejudiced by the settlement of property upon such
a trust; or
(b) concerning any disposition of property to such a
trust;
shall be commenced subject to sub-sections (1) and (2) and
every determination and order shall be made subject to sub-
section (3) as if upon the date that such settlement or disposition
was made the trust was registered as an international trust
governed by the law of Antigua and Barbuda.
Investments. 44. (1) A trustee shall not invest any of the trust funds other
than in securities, assets, or property authorised expressly or by
necessary implication for the investment of the trust funds by
and under the instrument by which the trust is established or
created.
(2) Where the instrument by which the trust is created or
established authorises expressly or by necessary implication
the investment of the trust funds in any investments authorised
by the laws of Antigua and Barbuda for the investment of trust
No. 22 of 2004. The International Trust Act, 2004. 3 1 ANTIGUA
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funds the instrument shall be deemed to authorise investment
as expressed in the Schedule to this Act.
45. Notwithstanding any provision of the law of the settlor's Bankruptcy.
domicile or place of ordinary residence of the settlor's current
place of incorporation and notwithstanding further that an
international trust is voluntary and without valuable
consideration being given for the same or is made for the benefit
of the settlor's spouse or cliildren, an international trust shall
not be void or voidable in the event of the settlor's bankruptcy,
insolvency of liquidation (other than in the case of an
international company registered pursuant to the Antigua and
Barbuda Business Corporations Act, or other Act replacing the Cap. 222.
same, that is in liquidation) or in any action or proceeding at the
suit of creditors of the settlor, but shall remain valid qnd subsisting
and take effect according to its tenor subject to sections 22 and
23 of this Act.
46. An international trust shall not be declared invalid or be Retention of
affected in any way if the settlor, and if more than one, any of control by
them either - settlor.
(a) retains, possesses or acquires power to revoke the
trust;
(b) retains, possesses or acquires power to amend the
trust;
(c) retains, possesses or acquires any benefit, interest
or property from the trust;
(d) retains, possesses or acquires the power to remove
or appoint a trustee or protector;
(e) retains, possesses or acquires the power to direct a
trustee or protector on any matter;
Cr) is the beneficiary of the trust solely or together with
others.
47. No international trust or any aspect of such trust governed Personal
by this Act and no disposition of property to be held upon the Or
heirship rights.
trusts thereof shall be declared void, voidable or defective in
any manner nor is the capacity of any settlor to be questioned
ANTIGUA 32 The International Trust Act, 2004. No. 22 of 2004.
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by reason that such trust may avoid or defeat the right, claim or
interest of a person held by reason of a personal relationship to
the settlor, including relatives or by way of heirship rights.
Translations. 48. (1) Every document filed with the Registrar and not in
English shall be accompanied by a certified translation.
(2) A document not in the English language and not
accompanied by a certified translation at the time of filing shall
not be accepted for registration by the Registrar.
(3) For the purpose of this section a certified translation is a
translation in the English language, certified as a correct
translation, be a translator to the satisfaction of the Registrar.
Immunity from 49. No action shall be against the Government of Antigua
suit. and Barbuda, any statutory body or authority or a public or
judicial officer in respect of any act or failure to act in accordance
with the provisions of this Act.
Prohibition by 50. (1) The Board may -
the Board.
(a) prohibit the registration of an international trust;
(b) direct any international trust to cease carrying on
its business or any part of its business immediately
or within such time as may be specified by the Board;
(c) direct the Registrar to remove a trust from any
register.
(2) A decision made under this section may be revoked or
varied at any time by the Board.
Advisory bodies. 51. (1) The Board may advise the Minister on matters affect-
ing the offshore financial sector in Antigua and Barbuda either
Cap. 222. by virtue of this Act or the International Business Corporation
Act.
(2) It shall be the duty of the Board to advise the Minister on
any matter which is referred to it by the Minister.
No. Q of 2004. The International Trust Act, 2004. 33 ANTIGUA
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Payment to Court registry
52. Every creditor before bringing any action or proceeding Payment to
against any trust property governed by this Act shall first deposit Regis@ar the
with the Registrar of the COW the sum of $25,000.00, for secur- Court.
ing the payment of all costs as may become payable by the
creditor in the event of his not succeeding in such action or
proceeding against the trust property.
53. (1) Where a husband and wife transfer property to an Community
international trust or a trust that subsequently becomes an Property.
international trust and, immediately before being transferred,
such property or any part of any accumulation thereto is,
pursuant to the law of its location or the law either of the
transferors' domicile or residence, determined to be community
property, then notwithstanding such transfer and except where
the provisions of the trust deed may provide to the contrary,
that property and any accumulation thereto shall, for the purpose
of giving effect to that law, be deemed to be community property
and be dealt with in a manner consistent with that law but in
every other respect shall be dealt with in accordance with the
trust deed and the governing law of that deed.
(2) Notwithstanding anything to the contrary herein
contained, nothing herein shall be construed so as to cause the
trust, the trust fund, the trustees or any of them, to be liable or
obligated for any debt or responsibility of the settlor merely by
reason of this section.
54. (1) Except where the provisions of this Act require, and Confidentiality.
subject to this section, or pursuant to an order of a court of
competent jurisdiction in Antigua and Barbuda, it shall be an
offence under this Act for a person to divulge or communicate
to any other person information relating to the establishment,
constitution, business undertaking or affairs of an international
trust.
(2) All judicial proceedings other than criminal proceedings
relating to an international trust shall, unless ordered
otherwise be heard in camera and no details of the
proceedings shall be published by any person except in
accordance with subsection (3).
ANTIGUA 34 The International Trust Act, 2004. No. 22 of 2004.
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(3) Every decision of the Court in respect of any
proceedings concerning the application or interpretation of
this Act shall be published or reported for the purposes of
affording a record of this proceedings, provided that in every
case -
(a) the written decision of the Court shall be edited to
such extent as shall be necessary to preserve secrecy
in respect of the identity of the trust, or every
interested party and of the subject matter of the
proceedings; and
(b) no such decision shall be reported or published
unless or until a judge of the Court shall have
ascertained the views of the parties to the
proceedings as to the adequacy of any editing
undertaken, and certified in writing to the Registrar
of the Court that the decision as edited may be
released for publication or reporting.
(4) Unless excluded by the terms of a trust instrument, a
trustee or an officer or employee of a trustee or trustee company
may divulge or make available information relating to the
establishment, constitution, business undertakings or affairs of
an international trust -
(a) to any person or class of persons as that trustee,
officer or employee considers necessary from time
to time, in its complete discretion, for carrying out
the management and administration of the trust
assets in the ordinary course of business; or
(b) to a legal practitioner -
(i) for the purpose of obtaining legal advice
relating to establishment, constitution,
business undertakings or affairs of an
international trust; or
(ii) for the purpose of prosecuting or defending
any litigation relating to the establishment,
constitution, business undertakings or affairs
of an international trust.
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55. The enactment titled 13 Elizabeth 1 Ch 5 (1571) shall have statute of
no application to any international trust that is governed by this 'Iizabeth.
Act nor any provision thereof nor to any transfer into such
trust.
56. Notwithstanding any rule of law or equity to the contrary Execution of
and except where there is express provision to the contrary Trust
contained in the trust instrument, a trust instrument and any I
nstrument.
counterpart thereof (whether an original or copy including a
facsimile copy) may be executed by the settlor, trustee and any
other parties thereto at different times and in different places
whether within or outside of Antigua and Barbuda and a trust
instrument so executed and a trust thereby created established
or settled whether registered before or after the coming into
force of this Act shall be as valid as if the trust instrument were
executed by the settlor and those parties simultaneously at the
time the trust instrument was executed by the settlor, and at a
place within Antigua and Barbuda.
57. (1) The Minister may, upon the recommendation of the Regulations.
Board -
(a) make regulations for the better canying out of the
provisions of this Act;
(b) prescribe all fees under this Act; and
(c) prescribe anythmg else necessary for carrying out
the provisions of this Act.
SECTION 44
1. The following shall be regarded as authorised investments -
(a) securities issued by, or the payment of interest on which is guaranteed
by the govenunent of Antigua and Barbuda;
(b) s d t i c s issued by, or the payment of interest on which is guaranteed
by, any of the following -
ANTIGUA 36 The International Trust Act, 2004. No. 22 of 2004.
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(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 Caribbean Development Bank, the Eastern Caribbean Central
Bank, the European Economic Community, the European Invest-
ment 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 (No. 18
of 1995) that is a licensed financial institution within the meaning of
Antigua and Barbuda's Banking Act.
(d) debentures issued by a quoted company;
(e) quoted shares.
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 Hang Seng Index, the Nikkei Average, the Eastern Caribbean
Stock Exchange or any other stock exchange approved by the Minister;
"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 orchary shares in which are quoted
on an approved stock exchange;
"quoted shares" means shares quoted on an approved stock exchange;
"securities" includes shares, debentures, treasury bills and tax reserve
certificates;
"shares" include stock.
No. 22 of 2004. The International Trust Act, 2004. 37 ANTIGUA
AND
BARBUDA
Passed the House of Representatives this Passed the Senate this 28th
27th day of October, 2004. day of October, 2004.
D. Giselle Isaac-Arrindell,
Speaker.
Dr. Edmond A. Mansoor,
President.
Y. Henry, Y.Henry,
Clerk to the House of Representatives. Clerk to the Senate.
Printed at the Government Printing Office, Antigua and Barbuda
by Walter A. Massiah, Government Printer
-By Authority, 2004.
800-12.04 [Price $14.151
