Revised Laws of Mauritius

T22 – 1 [Issue 1]

TRUSTS ACT Act 14 of 2001 – 1 December 2001

ARRANGEMENT OF SECTIONS

SECTION PART I – PRELIMINARY

1. Short title 2. Interpretation 3. Existence of trust 4. Recognition of trust 5. Application of Act

PART II – NATURE OF TRUSTS 6. Trust instrument 7. Transfer on trust 8. The settlor 9. Duration of trust

10. Accumulation of income 11. Avoidance of trust 12. Validity of trust 13. Effect of invalidity on property

PART III – OBJECTS OF TRUST 14. Beneficiaries of a trust 15. Class interests 16. Disclaimer of beneficial interest 17. Nature of beneficial interest 18. Protective or spendthrift trust 19. Purpose trust 20. Charitable trust 21. Enforcers 22. Immovable property in Mauritius

PART IV – TRUSTEES AND PROTECTORS

23. Appointment of trustees 24. Protector of trust 25. Custodian trustee 26. Managing trustee 27. Letters or memoranda of wishes 28. Number of trustees 29. New or additional trustees 30. Acceptance by trustee 31. Resignation or removal of trustee 32. Nature of trustee’s interest 33. Disclosure by trustee

34. Corporate trustee 35. Notice of other trusts 36. Dealings with third parties

PART V – DUTIES OF TRUSTEES 37. Fiduciary duties 38. Duty relating to trust property 39. Duty to act together 40. Duty to act impartially

PART VI – GENERAL POWERS OF TRUSTEES

41. Powers of trustees 42. Consultation by trustees 43. Delegation by trustees 44. Remuneration of trustees 45. Power to appropriate 46. Accumulation and advancement 47. Power of appointment 48. Power of revocation 49. Permitted investments

PART VII – BREACH OF TRUST 50. Liability for breach of trust 51. Relief by beneficiary 52. Relief by Court

PART VIII – CONSTRUCTIVE TRUST AND TRACING

53. Constructive trust 54. Tracing

PART IX – FAILURE, LAPSE AND TERMINATION OF TRUST

55. Failure or lapse of interest 56. Termination of trust 57. Termination by beneficiaries 58. Termination by Court 59. Termination or variation of a

charitable trust PART X – APPLICATION TO FOREIGN TRUST

60. Enforceability of foreign trust 61. Proper law

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SECTION PART XI – POWERS OF COURT

62. Application to Court 63. General powers of Court 64. Powers of Court in case of default 65. Payment of costs 66. Variation of trust 67. Approval of transactions

PART XII – MISCELLANEOUS 68. Limitation of actions 69. Rules of Court 70. Regulations 71. Transitional provisions 72. – 74. —

TRUSTS ACT

EDITORIAL NOTE: The words “Financial Services Development Act 2001” have been deleted and replaced by the words “Financial Services Act” wherever they occur, by

section 97 (13) of Act 14 of 2007 w.e.f. 28 September 2007.

PART I – PRELIMINARY

1. Short title

This Act may be cited as the Trusts Act.

2. Interpretation

In this Act—

“beneficiary” means a person, whether natural or corporate, entitled to benefit under a trust, or in whose favour a power to distribute trust prop- erty may be exercised;

“body corporate” means a company, société or association wherever incorporated;

“breach of trust” means a breach of any duty imposed on a trustee by this Act or by the terms of the trust;

“charitable trust” means a trust referred to in section 20;

“Code” means the Code Civil Mauricien;

“Commission” means the Financial Services Commission established under the Financial Services Act;

“constructive trust” means a trust referred to in section 53;

“corporate trustee” means a body corporate appointed or acting as trustee;

“Court” means the Supreme Court;

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“custodian trustee” means a trustee referred to in section 25;

“enforcer” means a person referred to as such in section 21;

“foreign trust” means a trust, the proper law of which is a law other than the law of Mauritius;

“functions” includes rights, powers, discretions, obligations, liabilities and duties;

“immovable property” includes—

(a) rights and interests in any immovable property;

(b) securities of a body corporate (wherever incorporated), if the majority by value of the property of the body corporate (whether held directly, indirectly or through the interposition of other body corporate, firm, partnership or person) is immovable property or interests in immovable property; and

(c) interests (however described) in a collective investment scheme or similar scheme (whether operated in Mauritius or not), if the majority by value of the property of the scheme (whether held directly, indirectly or through the interposition of other body cor- porate, firm, partnership or person) is immovable property or in- terests in immovable property;

“interest”, in relation to a beneficiary, means his interest under a trust;

“management company” has the same meaning as in the Financial Services Act;

“managing trustee” means a trustee referred to in section 26;

“Minister” means the Minister to whom responsibility for the subject of financial services is assigned;

“minor” means a person who has not attained the age of 18;

“non-charitable purpose trust” means a trust having a purpose other than a charitable purpose;

“non-citizen” has the same meaning as in the Non-citizens (Property Restriction) Act;

“person” means a natural person or a body corporate;

“person having an interest”, in relation to a power to apply to the Court, means the Attorney-General, a trustee, a settlor, an enforcer, a protector, a beneficiary of the relevant trust, any person empowered by the terms of the trust to make such application, or any other person with leave of the Court;

“personal representative”, in relation to a deceased person, means the executor or administrator of his estate;

“profit” includes gain or advantage;

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“property” includes movable and immovable property, wherever situ- ated, and rights and interests in the property whether vested, contingent, defeasible or future;

“protective or spendthrift trust” means a trust referred to in sec- tion 18;

“purpose trust” means a trust referred to in section 19 and includes a charitable trust;

“qualified trustee” means a management company or such other per- son resident in Mauritius as may be authorised by the Commission to pro- vide trusteeship services;

“settlor” means a person who provides trust property or makes a tes- tamentary disposition on trust or to a trust;

“trust” means a trust referred to in section 3 and includes—

(a) the trust property; and

(b) the functions, interest and relationships under the trust;

“trust property” means property held on trust. [S. 2 amended by s. 156 (5) of Act 22 of 2005 w.e.f. 28 September 2007.]

3. Existence of trust

(1) For the purposes of this Act, a trust exists where a person (known as “trustee”) holds or has vested in him, or is deemed to hold or have vested in him, property of which he is not the owner in his own right, with a fiduciary obligation to hold, use, deal or dispose of it—

(a) for the benefit of any person (“beneficiary”), whether or not al- ready ascertained or in existence;

(b) for any purpose, including a charitable purpose, which is not for the benefit only of the trustee; or

(c) for such benefit as is referred to in paragraph (a) as well as for any such purpose as is referred to in paragraph (b).

(2) Notwithstanding articles 893, 896, 931 and 1130 of the Code, prop- erty and rights may be transferred to or vested upon trust in accordance with this Act.

4. Recognition of trust

Subject to this Act, a trust shall be recognised as valid and enforceable under the laws of Mauritius.

5. Application of Act

This Act shall apply to trusts arising voluntarily, or resulting by operation of law, or by judicial decision.

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PART II – NATURE OF TRUSTS

6. Trust instrument

(1) Notwithstanding article 931 of the Code, a trust other than a unit trust, a constructive or a resulting trust or any trust arising by operation of law or by judicial decision— (a) may be created by a disposition of property inter vivos or by

will, or by holding property on trust; and (b) shall be of no effect unless created by an instrument in writing.

(2) An instrument creating a trust shall be void unless it states— (a) the name of the trustee; (b) the intention of the settlor to create a trust, or the declaration of

the trustee that he holds property on trust; (c) the object of the trust and the beneficiaries or class of benefici-

aries, as the case may be; (d) the property transferred or held on trust; and (e) the duration of the trust.

(3) A trust instrument shall be admissible in evidence notwithstanding the absence of the formalities prescribed by articles 1325 and 1326 of the Code.

7. Transfer on trust

(1) Subject to the other provisions of this Act, any property may be held by or vested in a trustee on trust.

(2) Notwithstanding subsection (1), no transfer or disposal to a trust shall be valid in respect of— (a) property which is inalienable under the law of Mauritius; (b) a leasehold interest the unexpired term of which is less than 18

years; (c) any immovable property in Mauritius where the trust is a non-

charitable purpose trust.

(3) Subject to the terms of the trust, a trustee may accept from any person property to be added to the trust property.

(4) Where a settlor declares a trust respecting a property which he does not own at the time of the declaration— (a) the trust is incompletely constituted at the time of the declara-

tion and no rights or duties arise under the trust instrument; (b) unless earlier revoked, the trust shall be deemed to come into

existence at the time the settlor becomes legally entitled to the property which was the subject of the declaration.

(5) Article 931 of the Code shall not apply to any transfer of property on trust.

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(6) The transfer or disposition on trust of property situated outside Mauri- tius, which if it had taken place in Mauritius would constitute a valid transfer or disposition of the property under this Act, shall not be declared void or invalid merely by reason that it contravenes the applicable law of the transfer or disposition, or the law of the transferor’s domicile or nationality.

(7) The trustee shall not acquire a better title to the trust property than the one which the settlor or transferor had immediately before the transfer or dis- position.

(8) Where property in Mauritius is transferred upon trust under the laws of Mauritius, the deed of transfer shall mention expressly the transferee in his capacity as trustee.

(9) No transfer of property to a trustee on trust shall be valid otherwise than in accordance with the formalities prescribed for such transfer.

8. The settlor

(1) Subject to the other provisions of this section, any person who has the legal capacity to contract may create a trust.

(2) A settlor may also be a trustee, a beneficiary, a protector or an enforcer, but shall not be the sole beneficiary of a trust of which he is a settlor.

(3) A settlor, who is a non-citizen and who transfers or disposes of assets to a trust, shall be deemed to have had the capacity to do so, where at the time of the transfer or disposal, he is of full age and of sound mind under—

(a) the laws of Mauritius;

(b) the laws of his domicile or of his nationality; or

(c) the proper law of the transfer or disposition.

(4) Notwithstanding any enactment, where a non-citizen transfers or disposes of property on trust, the transfer or disposition shall not be set aside, avoided, or otherwise declared invalid or ineffective by virtue of any rule or law of his domicile or nationality relating to inheritance or succession or any rule or law of a similar nature, or any rule or law restricting the right of a person to dispose of his property during his lifetime so as to preserve such property for distribution at his death, or any rule or law having similar effect.

9. Duration of trust

(1) The duration of a trust other than a purpose trust shall not exceed 99 years from the date of its coming into existence, unless it is earlier terminated.

(2) Notwithstanding article 900-1 of the Code or any other enactment, a purpose trust, whether charitable or not, may be of perpetual duration.

(3) — [S. 9 amended by s. 31 of Act 20 of 2011 w.e.f. 16 July 2011.]

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10. Accumulation of income

(1) Subject to subsection (2), 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 ex- ceeding the maximum duration of the trust.

(2) Where the trust property includes an immovable property situated in Mauritius, the accumulation period shall not exceed 25 years.

(3) Subject to any power of maintenance or advancement or other terms of the trust, income which is not accumulated shall be distributed.

11. Avoidance of trust

(1) Unless a trust contains an express power of revocation, it shall be deemed to be irrevocable by the settlor and his legal representative.

(2) Notwithstanding—

(a) article 1167 of the Code, any provision of the Bankruptcy Act, or any other law of Mauritius or any rule of law of any other jurisdiction;

(b) the fact that the trust is voluntary, and is effected without con- sideration, or is made on or for the benefit of the settlor, the spouse or children of the settlor, or any of them,

a trust shall not be void or voidable or otherwise invalidated in the event of or by reason of the settlor’s bankruptcy or liquidation of his property or in any action or proceedings against the settlor at the suit of his creditors.

(3) Notwithstanding subsection (2), the Court may declare a trust void, where it is established that the trust was made with the intent to defraud persons who were creditors of the settlor at the time when the trust prop- erty was vested in the trustee.

(4) No action under subsection (3) shall lie against the trustee of a trust after more than 2 years from the date of the transfer or disposal of the as- sets to the trust.

(5) Notwithstanding any rule of law relating to enforcement of judgments given by the Court of another jurisdiction, where the law of Mauritius is the proper law of a trust, 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 dissolution of marriage;

(b) succession rights (whether testate or intestate) including the fixed shares of spouses, ascendants and descendants or rela- tives; or

(c) the claim of creditors in an insolvency.

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(6) For the purposes of subsections (2), (3) and (4), “trust” does not in- clude a trust set up by a Mauritian national or a person domiciled in Mauritius.

12. Validity of trust

(1) Subject to this Act, a trust shall be valid and enforceable in accor- dance with its terms.

(2) A trust shall not be valid and enforceable where— (a) it purports to do anything contrary to the law of Mauritius; (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 Mauritius;

(c) it has no identifiable or ascertainable beneficiary , unless it is a purpose trust;

(d) the Court declares that— (i) it was established by duress, fraud, mistake, influence,

misrepresentation or in breach of fiduciary duty; (ii) it is immoral; (iii) its terms are so uncertain that its performance is rendered

impossible; or (iv) the settlor had, at the time of its creation, no legal capacity

to create such a trust.

(3) Where some of the terms of a trust are invalid but others are not— (a) in case the terms or purposes cannot be separated, the trust

shall be invalid; (b) in case the terms can be separated, the Court may declare that

the trust is valid as to the terms which are valid.

(4) Where a trust is created for 2 or more purposes of which some are lawful and others are not— (a) where the purposes cannot be separated, the trust shall be

invalid; (b) where the purposes can be separated, the Court may declare that

the trust is valid with regard to the purposes which are lawful.

(5) Where a trust is partially invalid, the Court may declare what property is to be held subject to the trust and what property is not.

(6) An application to the Court under this section may be made by any person having an interest in the trust.

13. Effect of invalidity on property

Any property as to which a trust is invalid shall, subject to any order of the Court made under section 12 (6), be held by the trustees in trust for the settlor absolutely or, if he is dead, for his heirs and successors as if it had formed part of his estate at his death.

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PART III – OBJECTS OF TRUST

14. Beneficiaries of a trust

(1) A beneficiary shall be—

(a) identifiable by name; or

(b) ascertainable by reference to— (i) a class; or (ii) a relationship to another person, whether or not living at

the time of the creation of the trust or at the time by refer- ence to which, under the terms of the trust, members of a class are to be determined.

(2) The terms of a trust may—

(a) provide for the addition of a person as beneficiary, or for the ex- clusion from benefit of a beneficiary; or

(b) impose an obligation upon a beneficiary as a condition of benefit.

15. Class interests

Where a trust is in favour of a class of persons, subject to the terms of the trust—

(a) the class shall be deemed to close when it is no longer possible for any other person to become a member of that class;

(b) a woman over the age of 55 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 mem- ber of the class exists, the income shall be accumulated and re- tained until a member of the class comes into being or the class closes.

16. Disclaimer of beneficial interest

(1) Subject to the terms of the trust, a beneficiary may disclaim his inter- est or any part of it, whether or not he has received any benefit from it.

(2) A disclaimer shall be in writing and, subject to the terms of the trust, may—

(a) be temporary; and

(b) where the disclaimer so provides, be revoked in the manner and circumstances specified in the disclaimer.

(3) A disclaimer shall not be effective until received by a trustee.

17. Nature of beneficial interest

(1) The interest of a beneficiary is movable property and, subject to the terms of the trust, freely transmissible.

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(2) Subject to the terms of the trust, the interest of a beneficiary may be sold, pledged, charged, transferred or otherwise dealt with.

18. Protective or spendthrift trust

(1) The terms of a trust may make the interest of a beneficiary subject to—

(a) termination;

(b) restriction on alienation of or dealing in that interest or any part of that interest;

(c) diminution, suspension or termination,

in the event of the beneficiary becoming insolvent or any of his property be- coming liable to seizure or sequestration for the benefit of his creditors and such trust shall be known for the purposes of this Act 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 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 deter- mining event occurs; and

(b) if a determining event occurs, and while the interest of the bene- ficiary continues, in trust to pay the income to any of the follow- ing as the trustee shall in his absolute discretion appoint—

(i) the beneficiary and any spouse or child of the beneficiary;

(ii) if there is no such spouse or child, the beneficiary and the persons who would be entitled to the estate of the benefi- ciary if he had at the time of the payment died intestate and domiciled in Mauritius.

(3) For the purpose of subsection (2), “determining event” means the oc- currence 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.

19. Purpose trust

(1) A trust may be created for a purpose, notwithstanding the absence of any beneficiary.

(2) A purpose trust shall not be valid and enforceable except where—

(a) the purpose, whether charitable or not, for which the trust is created is—

(i) specific, reasonable and capable of fulfilment;

(ii) not immoral, unlawful or contrary to public policy;

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(b) the terms of the trust provide for the appointment of an enforcer who is capable of enforcing the trust and for the appointment of a successor to an enforcer;

(c) at least one trustee is a qualified trustee; (d) the instrument creating the trust provides for the disposition of

surplus assets of the trust upon its termination whether by ex- piry on a specified date or on the occurrence of a specified event, or for any other cause.

(3) The transfer to or vesting in a non-charitable purpose trust of immov- able property situated in Mauritius shall be void and of no effect.

(4) Where a qualified trustee has reason to believe that a person who is appointed to enforce a purpose trust is dead, is unwilling, refuses or is unfit to act or is incapable of acting, he shall as soon as practicable inform the Attorney-General in writing of the fact.

(5) On being satisfied of the inability of the enforcer in terms of subsec- tion (4), the Attorney-General shall within 90 days appoint the successor to the enforcer under the terms of the trust as enforcer, or in his absence or his refusal or inability for any reason, a fit and proper person to be enforcer of the purpose trust.

(6) A purpose trust created by a Mauritian national shall be void except where the appointment of the enforcer and his designated successor is ap- proved by the Commission.

20. Charitable trust

(1) For the purposes of this Act, a trust shall be deemed to be charitable where the trust has as its exclusive purpose or object one or more of the following— (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 purpose beneficial to the public in general.

(2) A trust established for one or more of the objects or purposes re- ferred to in subsection (1) shall be deemed to be charitable notwithstanding that— (a) the object or purpose may not be of a public nature or for the

benefit of the public, but may benefit a section of the public, or members of the public, or that it may also benefit privately one or more persons or objects within a class of persons not resident in Mauritius;

(b) the trust is liable to be modified or terminated whether by the exercise of a power of appointment or disposition of assets;

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(c) the trustee has the power to defer the distribution of the bene- fits to any charity or other beneficiary of the trust for a period not exceeding the duration of the trust;

(d) the trust may be discretionary; or

(e) the charitable objects are pursued in Mauritius or elsewhere and are beneficial to the community in Mauritius or elsewhere.

(3) Articles 910 and 911 of the Code shall not apply to a charitable trust.

21. Enforcers

(1) There shall be appointed under the terms of a purpose trust an en- forcer whose duty shall be to enforce the trust in accordance with its terms and purposes.

(2) No person shall at any time act as both trustee and enforcer of the same trust.

(3) An appointment as enforcer shall be of no effect unless the appoint- ment has been accepted by the enforcer, and in the case of a purpose trust created by a Mauritian national, the appointment has been approved by the Commission.

(4) An enforcer shall not—

(a) place himself in a position which may conflict with his duties to enforce the purposes of the trust;

(b) derive directly or indirectly any profit by reason of his appoint- ment other than any reasonable fee for his service and for any reasonable expenses which he may have incurred in the dis- charge of his duties;

(c) enter on his own account into any dealing with the trustee of the purpose trust or in relation to the trust property of the pur- pose trust of which he is an enforcer.

(5) An enforcer may resign his office and his resignation shall take effect on the delivery of notice in writing to the trustee of the purpose trust.

(6) An enforcer shall be provided, in addition with any documents, ac- counts or other information to which he may be entitled under the terms of the purpose trust, with—

(a) annual accounts of the trust; (b) copies of the trust instrument setting up the purpose trust and

any deed or documents referred to in the instrument; and

(c) legal opinions and advice received by the trustees.

(7) The resignation of an enforcer shall not release the enforcer from any liability in relation to the trust arising before his resignation.

(8) An enforcer shall cease to act as enforcer of the trust— (a) as from the effective date of his resignation;

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(b) by virtue of any term in the trust which has as effect the termi- nation of his appointment as enforcer;

(c) upon his removal by the Court; or (d) as from the date on which he takes appointment as trustee of

the same trust.

22. Immovable property in Mauritius

(1) Unless approved by the Prime Minister under the Non-Citizens (Prop- erty Restriction) Act— (a) any transfer or vesting of an immovable property situated in

Mauritius to, or in, a trust of which a beneficial interest is held by a non-citizen;

(b) the appointment of a non-citizen as beneficiary of a trust the trust property of which includes immovable property situated in Mauritius,

shall be void and of no effect.

(2) Notwithstanding any term of the trust, a trustee, except with the ap- proval of the Prime Minister, shall not make any distribution or any payment from the trust, whether of income or capital, whether by way of maintenance, advancement or otherwise, to a beneficiary who is a non-citizen where the trust property includes an immovable property situated in Mauritius.

(3) Where a qualified trustee becomes aware of a breach of any provi- sions of this section, it shall forthwith report the matter to the Attorney- General who may apply to the Judge in Chambers for an order vesting the immovable property situated in Mauritius in the Curator of Vacant Estates, or for such other order as he thinks fit.

PART IV – TRUSTEES AND PROTECTORS

23. Appointment of trustees

(1) No person shall be appointed as trustee of a trust other than—

(a) a person of full age who has the legal capacity to contract;

(b) a body corporate permitted under its statute to act as trustee.

(2) A trustee shall not hold a beneficial interest under the trust of which he is a trustee except where he is not—

(a) the sole trustee of the trust; or

(b) the sole beneficiary under the trust.

24. Protector of trust

(1) The terms of a trust may provide—

(a) for the office of protector of the trust, whose functions shall be to advise the trustee of the trust, and who shall have such pow- ers as may be conferred;

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(b) that the exercise by the trustees of any of their powers and dis- cretions shall be subject to the prior consent of the protector.

(2) The trust instrument may appoint as protector, any person of full age and of sound mind, including the settlor, or any body corporate, firm, part- nership or group of persons, whether incorporate or unincorporate.

(3) Unless otherwise provided in the terms of the trust, the protector shall have the power to—

(a) remove a trustee and appoint a new or additional trustee;

(b) determine the law of the jurisdiction which shall be the proper law of the trust;

(c) change the forum of administration of the trust;

(d) withhold consent to specified actions of the trustees either con- ditionally or unconditionally.

(4) A person exercising any of the powers referred to in subsection (3) shall not by reason only of the exercise of the power be deemed to be a trus- tee, and unless otherwise provided under the terms of the trust, shall not be liable to the beneficiaries or the trustees for the bona fide exercise of the power.

(5) The protector of a trust may also be a settlor, trustee or beneficiary of the trust.

(6) Where there is more than one protector of a trust, any functions con- ferred on the protectors may be exercised, subject to the terms of the trust, by a majority of the number of protectors.

(7) A protector who dissents from a decision of the majority of protec- tors may require his dissent to be recorded in writing.

25. Custodian trustee

(1) The terms of a trust may provide for the appointment of a custodian trustee which shall be a firm, partnership or body corporate.

(2) Subject to the terms of the trust—

(a) the trust property shall be vested in the custodian trustee as if the custodian trustee were the sole trustee;

(b) notwithstanding the vesting of the trust property in the custo- dian trustee, the management of the trust property and the ex- ercise of all powers and discretions exercisable by the trustee under the trust shall remain vested in the managing trustee;

(c) the sole function of the custodian trustee shall be to hold the trust property, invest its funds and dispose of the assets as the managing trustee may direct, for which purpose the custodian trustee shall execute all such documents and perform all such acts as are necessary;

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(d) where there is more than one managing trustee, a direction given by the majority of them shall be valid as if given by all of the managing trustees.

(3) The custodian trustee shall not be liable for acting on the direction given by the managing trustee except where the custodian trustee had rea- son to believe that the direction so given—

(a) is in contravention of any law, rule or regulation; (b) is contrary to the terms of the trust; (c) is contrary to sound commercial practice; or (d) is otherwise objectionable.

(4) Where the custodian trustee is of opinion that the direction of the managing trustee cannot be complied with for any reason referred to in sub- section (3), it may apply to the Court as a person having an interest in the trust for a direction and the Court shall make such order as it thinks proper.

(5) The custodian trustee shall not be liable for any act or default com- mitted by the managing trustee.

(6) All actions and proceedings relating to the trust property shall be brought or defended in the name of the custodian trustee at the instruction of the managing trustee, and the custodian trustee shall recover any costs and expenses from the trust property.

(7) No person dealing with the custodian trustee shall be concerned to inquire as to the concurrence or otherwise of the managing trustee or be af- fected by notice of the fact that the managing trustee has not concurred in any decision or direction.

26. Managing trustee

(1) The terms of a trust may provide for the appointment of a managing trustee having the role and functions to manage the trust without being vested with the trust property which is vested in a custodian trustee.

(2) Where the terms of a trust reserve the exercise of any of the trus- tees’ powers to the managing trustee, no other trustee shall be liable for any of the decisions, acts or transactions of the managing trustee to the extent that they amount to exercise of powers so reserved.

27. Letters or memoranda of wishes

(1) The settlor of a trust may give to the trustees a letter of his wishes or the trustees may prepare a memorandum of the wishes of the settlor with regard to the exercise of any functions conferred on the trustees by the terms of the trust.

(2) A beneficiary of a trust may give to the trustees a letter of his wishes or the trustees may prepare a memorandum of the wishes of the beneficiary with regard to the exercise of any functions conferred on the trustees by the terms of the trust.

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(3) Where a trust is in favour of a class of persons, any member of that class may give to the trustees a letter of his wishes or the trustees may pre- pare a memorandum of the wishes of that member with regard to the exer- cise of any functions conferred on the trustees by the terms of the trust.

(4) Where a letter of wishes or a memorandum of wishes is given to or prepared by the trustees of a trust, the trustees—

(a) may have regard to that letter or memorandum in exercising any functions conferred upon them by the terms of the trust; but

(b) shall not be accountable in any way for their 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.

28. Number of trustees

(1) The number of trustees of a trust shall not exceed 4 of whom, at any one time, at least one shall be a qualified trustee.

(2) A trust shall not terminate or the number of trustees is be invalid on the ground that—

(a) there is no trustee or the number of trustees is less than the number required by subsection (1) or by the terms of the trust;

(b) there is no qualified trustee in relation to the trust.

(3) Where the number of trustees is less than the number required by the terms of the trust, the necessary number of additional trustees shall be appointed.

(4) Where at any time there is no qualified trustee of a trust, any person having an interest in the trust may apply to the Judge in Chambers for the appointment of a qualified trustee nominated in the application.

(5) The Judge—

(a) on being satisfied that notice of the application has been served on the existing trustees;

(b) having ascertained that the person nominated is qualified and willing to act; and

(c) after hearing the Commission or its representative,

may appoint that person as a trustee.

(6) Until the required number is reached, or a qualified trustee is ap- pointed, the existing trustee shall act only for the purpose of preserving the trust property.

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29. New or additional trustees

(1) Where the terms of a trust contain no provision for the appointment of an additional trustee, or in the absence of a protector or a power by the protector to make the appointment, such a trustee may be appointed by the persons in the following order—

(a) the remaining trustees;

(b) the last remaining trustee;

(c) the personal representative or liquidator of the last remaining trustee; or

(d) in the absence of any of the persons referred to in paragraphs (a) to (c), by the Judge in Chambers, on application by the person having an interest.

(2) Subject to the terms of the trust, a trustee appointed under this sec- tion has the same functions, and may act in all respects, as if he had been originally appointed a trustee.

(3) A trustee with power to appoint a new or additional trustee who re- fuses or fails to exercise the power may be removed from office by the Judge in Chambers, on application by a person having an interest.

(4) On the appointment of a new or additional trustee, the trust property shall be deemed to vest in him jointly with his co-trustee, if any, without any conveyance or assignment.

(5) No vesting of trust property in a trustee on the death, retirement or removal of a trustee shall be construed as a transfer of property or shall give rise to the levying of any tax or duty under any enactment.

30. Acceptance by trustee

(1) A person appointed as trustee may refuse the appointment, but where he knowingly intermeddles with the trust or its affairs, he shall be deemed to have accepted it.

(2) A person appointed as trustee may, within 3 months of being in- formed of the appointment—

(a) disclaim the appointment by notice in writing to the settlor or to the other trustees; or

(b) where the settlor is dead or cannot be found, and there are no other trustees, apply to the Court for relief from the appoint- ment, whereupon the Court may make such order as it thinks fit.

(3) Any person who fails to disclaim appointment or to apply for relief within the period prescribed under subsection (2) shall be deemed to have accepted the appointment.

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31. Resignation or removal of trustee

(1) A trustee other than a sole trustee may resign his office by delivering a written notice of resignation to his co-trustees.

(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) the coming into effect of, or the exercise of a power under, the terms of the trust under or by which he is removed from or oth- erwise ceases to hold his office.

(3) A person who ceases to be a trustee under this section shall do every- thing 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 prop- erty held by or vested in him or otherwise under his control;

(b) where so permitted by the terms of the trust, he may require that he be provided with reasonable security for liability (exist- ing, future, contingent or otherwise) before surrendering the trust property.

(5) A trustee who complies with subsection (4) (a) shall be relieved of li- ability to any beneficiary, trustee 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 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;

(b) in respect of any action to recover from the trustee (or, in the case of a corporate trustee, any of its officers or employees) trust property or the proceeds thereof in his possession.

32. Nature of trustee’s interest

(1) Subject to subsection (2)—

(a) the interest of a trustee or protector in the trust property is lim- ited to that which is necessary for the proper performance of the trust; and

(b) the trust property does not form part of the estate of the trustee or of the protector.

(2) Where a trustee or a protector of a trust is also a beneficiary of the trust, subsection (1) does not apply to his interest as a beneficiary.

(3) Where a trustee or a protector becomes bankrupt, or upon his prop- erty becoming liable to arrest, seizure, forfeiture, expropriation or similar

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process of law, his creditors shall have no recourse against the trust property except to the extent that the trustee or the protector himself has a claim against it or a beneficial interest in it.

33. Disclosure by trustee

(1) Subject to the other provisions of this section, a trustee shall, on re- ceipt of a request, provide accurate information as to the state and amount of the trust property and the conduct of the trust administration—

(a) to the Court;

(b) to the settlor, enforcer, or protector of the trust, unless the trus- tee has reason to believe that such person is making the request under duress;

(c) where the terms of the trust so authorise— (i) to any beneficiary of the trust of full age who has legal ca-

pacity and having a vested interest in the trust; (ii) to any charity for the benefit of which the trust was

established.

(2) Except where ordered by the Court or a Judge in Chambers for a rea- son specified in subsection (3), a trustee shall keep as confidential and shall not be required to disclose to any person not legally entitled to it under sub- section (1), or be required to produce or divulge to any Court, tribunal, com- mittee of enquiry or other authority in Mauritius or elsewhere, any informa- tion or document in his possession or under his control relating to—

(a) the state and amount or any other details of the trust property;

(b) the conduct of the trust administration;

(c) the trustee’s deliberations as to the manner in which a power or discretion was exercised, or a duty conferred or imposed by the law or by the terms of the trust was performed;

(d) the reason for any particular exercise of such power or discretion or performance of duty or the material upon which such reason will be or might have been based; or

(e) the exercise or proposed exercise of such power or discretion or the performance or proposed performance of such duty.

(3) Notwithstanding any other enactment, the Court or the Judge in Chambers shall not make an order for disclosure or production of any confi- dential information referred to in subsection (2) except on the application of the Director of Public Prosecutions and on proof beyond reasonable doubt that the confidential information is bona fide required for the purpose of any enquiry or trial into or relative to—

(a) the trafficking of narcotics and dangerous drugs and to the pro- ceeds of such trafficking, contrary to the Dangerous Drugs Act or money laundering under the Financial Intelligence and Anti-Money Laundering Act;

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(b) any act done otherwise than in Mauritius which, if done in Mau- ritius, would have constituted an offence of trafficking or money laundering under the Financial Intelligence and Anti-Money Laun- dering Act.

(4) This section shall be without prejudice to—

(a) the obligations of Mauritius under any international treaty, con- vention or agreement, and to the obligations of any public sector agency under any international arrangement or concordat;

(b) such disclosure as is necessary for the purpose of administering this Act and the Financial Services Act, or of discharging a func- tion under these enactments.

(5) Where on application by a person having an interest in the trust, the Court is satisfied that the disclosure is bona fide required for the purpose of any civil proceedings, the Court may order the disclosure of information or document or part of it, subject to such conditions as it thinks fit to impose for the purpose of protecting the information or document so obtained from abuse.

34. Corporate trustee

A body corporate may as trustee—

(a) act in connection with a trust by a resolution of its board of di- rectors or other governing body; or

(b) by such a resolution, appoint an officer or employee to act on its behalf in connection with the trust.

35. Notice of other trusts

(1) A trustee shall not, in the absence of fraud, be affected by notice of any instrument, matter, fact or thing in relation to a trust if he obtained no- tice of it by reason of his acting or having acted for the purposes of another trust.

(2) A trustee of a trust shall disclose to his co-trustees any interest which he has as trustee of another trust if any transaction in relation to the former trust is to be entered into with the trustees of the other trust.

36. Dealings with third parties

(1) Notwithstanding any enactment, where, in a transaction or matter af- fecting 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 trus- tee, he shall—

(a) incur personal liability to the third party in respect of the transac- tion or matter; and

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(b) have a right of indemnity against the trust property in respect of his personal liability, unless he acted in breach of trust.

(3) 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 of the property; and

(b) is not affected by the trusts on which the property is held.

(4) A third party paying or advancing money to a trustee is not con- cerned to see that—

(a) the money is needed in the proper exercise of the trust functions;

(b) no more than is needed is raised; or

(c) the transaction or application of the money is proper.

(5) In this section “third party" means a person other than a settlor, enforcer, protector, trustee or beneficiary of the trust.

PART V – DUTIES OF TRUSTEES

37. Fiduciary duties

(1) A trustee shall, in the exercise of his functions, observe the utmost good faith and act—

(a) with due diligence;

(b) with care and prudence; and

(c) to the best of his ability and skill.

(2) Subject to this Act, a trustee shall execute and administer the trust, and exercise his functions—

(a) in accordance with the terms of the trust;

(b) only in the interest of the beneficiaries or in fulfilment of the purpose of the trust.

(3) A trustee shall not use or deal with trust property for his own profit or for any purpose not connected with the trust.

(4) A trustee shall not—

(a) derive, directly or indirectly, any profit from his trusteeship;

(b) cause or permit any other person to derive such profit; or

(c) on his own account, enter into any transaction with his co-trustees, or relating to the trust property, which may result in any such profit except—

(i) with the approval of the Court; (ii) as permitted by this Act; or (iii) as expressly provided by the terms of the trust.

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38. Duty relating to trust property

(1) Subject to this Act and to the terms of the trust, a trustee shall pre- serve and enhance, so far as is reasonable, the value of the trust property.

(2) A trustee shall take all such steps as may be reasonably required with due regard to the nature and amount or value of the property, for the pos- session of all outstanding trust property and for the preservation of the trust property and the assertion or protection of the title to it.

(3) (a) A trustee shall keep—

(i) up-to-date and accurate accounts and records of his trusteeship; and

(ii) a register of the names, in alphabetical order, and the last known address of each beneficiary and settlor of the trust, including a non-resident foreign trust administered by him.

(b) The records to be kept under paragraph (a) (i) shall include proper books, registers, accounts, records such as receipts, invoices and vouchers and documents such as contracts and agreements representing a full and true record of all transactions and other acts engaged in by the trust and shall be kept for a period of not less than 5 years after the completion of the transactions to which they relate.

(4) A trustee shall keep trust property separate from his own property and separately identifiable from any other property of which he is the trustee.

[S. 38 amended by s. 28 of Act 27 of 2012 w.e.f. 22 December 2012.]

39. Duty to act together

(1) Subject to the terms of the trust, where there is more than one trus- tee, all the trustees shall join in performing the trust.

(2) Subject to subsections (3) and (4), where there is more than one trustee, no functions given to the trustees shall be exercised unless all the trustees agree on its exercise.

(3) 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.

(4) A trustee who dissents from a decision of the majority may require his dissent to be recorded in writing.

40. Duty to act impartially

(1) Where a trust has more than one beneficiary, or more than one pur- pose, the trustees, subject to the terms of the trust and to subsection (2), shall be impartial and shall not execute the trust for the advantage of one at the expense of another.

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(2) Subsection (1) does not prejudice the exercise of a discretion con- ferred upon a trustee by the terms of the trust.

PART VI – GENERAL POWERS OF TRUSTEES

41. Powers of trustees

(1) Subject to his duties under this Act and to the terms of the trust, a trustee has, in relation to the trust property, all the powers of a beneficial owner.

(2) A trustee shall exercise his powers only in the interests of the benefi- ciaries or of the purpose for which the trust is established and in accordance with the terms of the trust.

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(3) A trustee may sue and be sued as trustee.

42. Consultation by trustees

(1) A trustee may consult professional persons in relation to the affairs of the trust.

(2) The terms of the trust may require a trustee to consult or obtain the consent of another person before exercising any function.

(3) A person shall not, by virtue of being so consulted or giving or refus- ing such consent, be deemed to be a trustee.

43. Delegation by trustees

(1) A trustee shall not delegate his functions unless permitted to do so by this Act or by the terms of the trust.

(2) Unless otherwise provided by the terms of the trust, a trustee may—

(a) delegate the management of trust property to, and appoint, in- vestment managers whom the trustee reasonably considers to be competent and qualified to manage the investment of the trust property;

(b) appoint accountants, lawyers, bankers, brokers, custodians, in- vestment advisers, nominees, property agents and other profes- sionals to act in relation to any of the affairs of the trust or to hold any of the trust property; or

(c) authorise any of the persons referred to in paragraphs (a) and (b) to retain or to receive any commission or other payment usually payable for such services rendered.

(3) A trustee shall not be liable for any loss to the trust arising from a delegation or appointment under subsection (2) or from the default of any such delegate or appointee where the trustee exercised the standard of care of a reasonable and prudent man of business in—

(a) the selection of the delegate or appointee;

(b) the supervision of the activities of the delegate or appointee.

44. Remuneration of trustees

(1) Subject to—

(a) the terms of the trust;

(b) an order of the Court,

a trustee shall be entitled to remuneration for his services.

(2) A trustee shall be entitled to be reimbursed out of the trust property for all expenses and liabilities properly incurred by him in connection with the trust.

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45. 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 valua- tion as he thinks fit.

46. Accumulation and advancement

(1) Subject to the terms of the trust and subject to any prior interests or charges affecting the trust property, where a beneficiary is a minor and his interest— (a) is a vested interest; or (b) is an interest which will become vested— (i) on attaining the age of majority; or (ii) at any later age; or (iii) upon the happening of any event, the trustee may— (A) accumulate the income attributable to the interest of such bene-

ficiary pending the attainment of the age of majority or such later age or the happening of such event;

(B) apply such income or part of it to or for the maintenance, educa- tion or other benefit of such beneficiary;

(C) advance or appropriate to or for the benefit of any such benefi- ciary such interest or part of such interest.

(2) The receipt of a parent or the lawful guardian of a beneficiary who is a minor shall be a sufficient discharge to the trustee for a payment made un- der subsection (1).

(3) Subject to the terms of the trust and subject to any prior interests or charges affecting the trust property, the trustee may advance or apply for the benefit of a beneficiary part of the trust property prior to the date of the event upon the happening of which the beneficiary becomes entitled abso- lutely to the property.

(4) Any part of the trust property advanced or applied under para- graph (3) shall be brought into account in determining from time to time the share of the beneficiary in the trust property.

(5) No part of the trust property advanced or applied under paragraph (3) shall exceed the presumptive, contingent or vested share of the beneficiary in the trust property.

47. Power of appointment

The terms of a trust may confer on the settlor, trustees or any other per- son power to appoint all or any part of the trust property or any interest in it, to or for the benefit of, any person (whether or not a beneficiary of the trust immediately prior to the appointment or assignment).

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48. Power of revocation

(1) A trust and any exercise of a power under the trust may be ex- pressed to be capable of—

(a) revocation, in whole or in part; or

(b) variation.

(2) No 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, where the trust is revoked in whole or in part, the trustees shall hold the trust property, or part of the trust prop- erty which is subject of the revocation, as the case may be, in trust for the settlor absolutely or, if he is dead, for his heirs and succession as if it had formed part of his estate at the time of his death.

49. Permitted investments

(1) Subject to subsection (2), the terms of a trust may authorise the trus- tees to invest trust property in securities and investments with or without conditions or restrictions.

(2) The powers of investment conferred by the terms of a trust do not derogate from the duties imposed on trustees under this Act.

PART VII – BREACH OF TRUST

50. Liability for breach of trust

(1) Subject to this Act and to the terms of the trust, a trustee who com- mits or concurs in a breach of trust shall be 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 shall not be liable for a breach of trust committed by an- other person prior to his appointment or for a breach of trust committed by his co-trustee unless—

(a) he becomes or ought to 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 trustees commit a breach of trust, they shall be liable jointly and severally.

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(5) A trustee who becomes aware of a breach of trust shall take all rea- sonable 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, wilful misconduct or gross negligence.

51. Relief by beneficiary

(1) Subject to subsection (2), a beneficiary may— (a) relieve a trustee of liability to him for a breach of trust; (b) indemnify a trustee against liability for a breach of trust.

(2) Subsection (1) shall 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).

52. Relief by Court

(1) 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— (a) has acted honestly and reasonably; and (b) ought fairly to be excused— (i) for the breach of trust; (ii) for omitting to obtain the directions of the Court in the

matter in which the breach arose. (2) Where a trustee commits a breach of trust at the instigation, at the

request or with the concurrence of a beneficiary, the Court may, whether or not the beneficiary is a minor or a person under legal disability, order— (a) the defaulting beneficiary to indemnify the trustee in respect of

the consequences of the breach of trust; and (b) the trustee to appropriate any part of the interest accruing to the

beneficiary for that purpose.

PART VIII – CONSTRUCTIVE TRUST AND TRACING

53. Constructive trust

(1) A person holding any fiduciary obligations who— (a) derives a profit from a breach of his fiduciary duties; or (b) obtains property as a result of such a breach, shall be deemed to be a trustee of the profit or property for the person to whom the duties are owed.

(2) A trustee who— (a) derives a profit from a breach of trust; or

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(b) obtains property as a result of such a breach, shall be deemed to be a trustee of the profit or property for the beneficiary of the trust.

(3) Without prejudice to any other remedy provided by law, the person referred to in subsection (1) to whom fiduciary duty is owed, or the benefici- ary referred to in subsection (2), may apply to the Court for an order that the profit or property obtained from the breach of fiduciary duties or of trust be traced and recovered to him.

(4) A person shall not be liable for breach of trust or of fiduciary duty under this section where he established that the profit or property was ob- tained in good faith.

(5) This section does not exclude any other circumstances in which a constructive trust may arise.

[S. 53 repealed and replaced by s. 88 (3) of Act 5 of 2002 w.e.f. 1 April 2002.]

54. Tracing

Without prejudice to the personal liability of a trustee, or a person in breach of his fiduciary duty, trust property which has been charged or dealt with in breach of trust or fiduciary duty, or the property into which it has been converted, may be followed and recovered unless— (a) it is no longer identifiable; (b) it is in the hands of a bona fide purchaser for value without no-

tice of the breach of trust, or of any other defect in the title; (c) it has been charged in favour of a person who bona fide acquired

his rights therein for value and without notice of the breach of trust or any other defect in the title;

(d) a person, other than the trustee, derived his title through a bona fide purchaser or charge holder for value without notice of the breach of trust or defect.

[S. 54 repealed and replaced by s. 88 (3) of Act 5 of 2002 w.e.f. 1 April 2002.]

PART IX – FAILURE, LAPSE AND TERMINATION OF TRUST

55. Failure or lapse of interest

Subject to the terms of the trust and to any order of the Court, where— (a) an interest lapses; (b) a trust terminates; (c) there is no beneficiary and no person who can become a benefi-

ciary in accordance with the terms of the trust; or (d) property is vested in a person otherwise than for his sole benefit,

but the trust upon which he is to hold the property is not de- clared or communicated to him,

the interest or property concerned shall be held by the trustees in trust for the settlor absolutely or, if he is dead, for his heirs and successors as if it formed part of his estate at the time of his death.

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56. Termination of trust

(1) On the termination of a trust, the trust property shall, subject to sub- section (2), be distributed by the trustees within a reasonable time in accor- dance with the terms of the trust to the persons entitled to it.

(2) The trustees may retain sufficient assets to make reasonable provi- sion for liabilities (existing, future, contingent or otherwise).

57. Termination by beneficiaries

(1) Notwithstanding anything in the terms of the trust, a trust shall ter- minate where the beneficiaries who all—

(a) are in existence and have been ascertained;

(b) are persons of full age with no legal disability or incapacity; and

(c) are in unanimous agreement so to do,

require by notice the trustee to terminate the trust.

(2) Where a trust is terminated under subsection (1), the trustee shall distribute the trust property as the beneficiaries may direct.

58. Termination by Court

On the application of any person having an interest in the trust, the Court may—

(a) direct the trustees to distribute, or not to distribute, the trust property; or

(b) make such other order in respect of the termination of the trust and the distribution of the property as it thinks fit.

59. Termination or variation of a 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;

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(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 Attorney-General, the trustee or the enforcer, 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 Attorney-General, the trustee or the enforcer, may ap- prove 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.

PART X – APPLICATION TO FOREIGN TRUST

60. Enforceability of foreign trust

(1) Subject to subsection (2), a foreign trust is governed by, and shall be interpreted in accordance with, the terms of the trust and its proper law.

(2) A foreign trust shall not be enforceable in Mauritius to the extent that—

(a) it purports to do anything which under the law of Mauritius is an offence;

(b) it confers or imposes any right or function, the exercise or dis- charge of which under the law of Mauritius is an offence;

(c) it is immoral or contrary to public policy; or

(d) it purports to apply directly to immovable property situated in Mauritius.

61. Proper law

(1) Subject to subsection (2), the proper law of a trust shall be—

(a) the law expressed by the terms of the trust or intended by the settlor to be the proper law;

(b) where no such law is expressed or intended, the law with which the trust has its closest connection at the time of its creation; or

(c) where the law expressed by the terms of the trust or intended by the settlor to be the proper law, or the law with which the trust has its closest connection at the time of its creation does not provide for trusts or the category of trusts involved, the proper law of the trust shall be the law of Mauritius.

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(2) In ascertaining the law with which a 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 situs 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

fulfilled.

PART XI – POWERS OF COURT

62. Application to Court

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.

63. General powers of Court

(1) On the application of any person having an interest in the trust, 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 func-

tions of the trustee, the appointment or the removal of a trustee, the remuneration or conduct of a trustee, the keep- ing and submission of accounts, and the making of pay- ments whether into Court or otherwise;

(iii) a beneficiary, or any other person connected with a trust; or

(iv) 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; or (c) 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 thinks fit,

including requirements and conditions as to the vesting of trust property;

(b) subject to the Court’s order, a trustee appointed by the Court shall have the same functions, and may act in all respects, as if he had been originally appointed a trustee.

64. Powers of Court in case of default

Where a person does not comply with an order of the Court or the Judge in Chambers under this Act requiring him to do any thing, the Court may,

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without prejudice to any action for contempt of Court, order on such terms and conditions as it thinks fit, that the thing be done by another person, nominated for the purpose by the Court or the Judge, at the expense of the person in default (or otherwise, as the Court directs), and a thing so done shall have effect in all respects as if done by the person in default.

65. Payment of costs

The Court may order the costs and expenses of, and incidental to, an ap- plication to the Court under this Act to be paid from the trust property or in such other manner and by such persons as it thinks fit.

66. Variation of trust

(1) The Court, on the application of any person having an interest in the trust on behalf of—

(a) a minor or a person under legal disability having, directly or indi- rectly, an interest, vested or contingent, under a trust;

(b) any person unborn;

(c) any person, ascertained or not, who may become entitled, di- rectly or indirectly, to an interest under a trust, as being (at a fu- ture 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 existing interest,

may, subject to subsection (2), approve any arrangement which varies or re- vokes the terms of a trust or enlarges or modifies the powers of management or administration of any trustees, whether or not there is another person with a beneficial interest who is capable of assenting to the arrangement.

(2) The Court shall not approve an arrangement on behalf of a person mentioned in subsection (1) (a), (b) or (c) unless the arrangement appears to be for his benefit.

67. Approval of transactions

Where, in the management or administration of a trust, a transaction is, in the opinion of the Court, expedient, but cannot be effected because the nec- essary power is not vested in the trustees by the terms of the trust or by law, the Court may, on the application of any person having an interest in the trust—

(a) confer upon the trustees, generally or in any particular circum- stances, the necessary power, on such terms and subject to such conditions as the Court thinks fit; and

(b) direct the manner in which, and the property from which, any monies authorised to be expended, and the costs of any transac- tion, are to be paid or borne.

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PART XII – MISCELLANEOUS

68. Limitation of actions

(1) Notwithstanding any other enactment, a period of limitation and pre- scription of 30 years shall apply to an action brought by a person having an interest 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) Notwithstanding subsection (1), the period within which an action founded on breach of trust may be brought against a trustee by a beneficiary is— (a) 2 years from delivery of the final accounts of the trust to the

beneficiary; or (b) 2 years from the date on which the beneficiary first has knowl-

edge of the breach of trust, whichever period first begins to run.

(3) Where the beneficiary 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.

69. Rules of Court

The Chief Justice may, after consultation with the Rules Committee and the Judges, make such rules as he thinks fit— (a) with respect to proceedings, practice and procedures of the Su-

preme Court in connection with any matter, cause and applica- tion under this Act;

(b) generally with respect to applications for directions under this Act.

70. Regulations

(1) The Minister may make such regulations as he thinks fit for the pur- poses of this Act.

(2) Regulations under subsection (1) may provide for the taking of fees and levying of charges.

71. Transitional provisions

(1) Subject to the other provisions of this section, a trust which immedi- ately before 1 December 2001 is valid, in existence and registered under a

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repealed enactment, shall continue to be valid and shall be governed by the applicable enactment as if it has not been repealed.

(2) Any act made, any authorisation given or any registration effected in connection with a trust under a repealed enactment, shall be deemed, where required under this Act to have been made, given or effected under this Act.

(3) Any register kept under any provision of a repealed enactment shall be deemed to be part of the register kept under the corresponding provision of this Act.

(4) Any person having an interest in a trust to which a repealed enact- ment is applicable immediately before 1 December 2001, may apply to the Court for any variation of the terms of the trust rendered necessary as a re- sult of the coming into force of this Act, and the Court shall make such order as it thinks just.

(5) Where by the effect of a choice of law provided in a trust instrument made before 1 December 2001, a trust is to be governed by the laws of Mauritius, the trust shall be governed by this Act.

(6) In this section, “repealed enactment” means— (a) the Trusts Act 1989; (b) the Trust Companies Act 1989; or (c) the Offshore Trusts Act 1992.

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