rangement of Provisions
PART 1
PRELIMINARY
1. Short title and commencement
2. Interpretation
3. Application of the Act
PART 2
CREATION AND
NATURE OF TRUSTS
4. The nature and existence of a
trust
5. The requirements for the
creation of a trust
6. The form which a trust may
take
7. Property which may be held in
trust
8. The proper law and the power
to change the proper law
9. Matters determined by the Law
10. Validity and enforceability of a
trust
11. Jurisdiction of the Court
12. Fraudulent trust or disposition
13. Unenforceable foreign claim or
judgment
PART 3
DURATION AND
ACCUMULATION
14. Duration of a trust
15. Power of accumulation of
income and of advancement
PART 4
PARTIES TO A TRUST
16. Who may be beneficiaries and
the identification of them
17. Powers to add to and remove
from the beneficiaries and to
create excluded persons
18. Disclaimer
19. Class interest
20. Interest of a beneficiary and
dealing with such interest
21. Protector
22. Enforcer
PART 5
TRUSTEES
23. Number of trustees
24. Appointment of trustees
25. Acceptance of trusteeship
2 Trusts 2014, No. 8
26. Vacancy in trusteeship
27. Resignation or removal of
trustees
28. The position of the outgoing
trustee
29. Duties of trustees
30. Duty to exercise care and skill
31 Power of investment
32. Agents
33. Nominees and custodians
34. Terms of appointment of
nominees and custodians
35. Review of agents, nominees
and custodians and liability for
the appointment of them
36. Effect of trustees exceeding
their powers
37. Sole trustees
38. Restriction or exclusion of the
powers conferred by sections
32 to 36 and by sections 40 to
42
39. Existing trusts
40. Trustees’ remuneration and
expenses
41. Remuneration and expenses of
agents, nominees and
custodians
42. Insurance
43. Letters or memorandum of
wishes
44. Corporate trustee may act by
resolution
PART 6
RESERVED POWERS
45. Reserved powers to a settlor
46. Reserved powers to a protector
47. Prescribed directions
48. Samoan International Special
Trust Arrangement
49. Interpretation
50. Primary purpose of section 51
51. Designated shares
52. Trustee’s duties in relation to
designated shares
53. Restrictions on trustee’s
powers
54. Provisions relating to directors
55. Intervention by trustee in
management in prescribed
circumstances
56. Power to dispose of designated
shares
57. Enforcement
58. Power of Court to order
disposal
59. Beneficiaries not entitled
60. Disqualification of trustee as a
director
61. Ascertaining wishes of settlor
62. Limitation of trustee’s duties
63. Combination of a trust with a
limited partnership
PART 7
SPECIAL TYPES OF TRUST
64. Protective trust
65. Charitable trust
66. Purpose trust
PART 8
LIABILITIES AND REMEDIES
67. Trustees
68. Limitation on trustee’s liability
- exculpation
69. Beneficiary’s consent, release
or ratification
70. Prevention of breach of trust
71. Remedies for breach of trust
72. Damages in absence of breach
of trust
73. Protector
74. Enforcer
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PART 9
VARIATION, REVOCATION,
FAILURE, TERMINATION,
MIGRATION
75. Variation and revocation
76. Failure or lapse of interest
77. Termination
78. Migration
PART 10
FOREIGN TRUSTS
79. Foreign trusts
PART 11
TRUST INFORMATION
80. Confidentiality and providing
information
PART 12
POWERS OF THE COURT
81. Application to and powers of
the Court
82. Payment of cost
83. Nature of a trustee’s interest
84. Following trust property
85. Bankruptcy of trustees
86. Protection for persons dealing
with trustee
87. Limitation and prescription
88. Constructive trusts
PART 13
MISCELLANEOUS
89. Regulations
90. Consequential amendments
91. Repeal, transitional and saving
Schedule
__________
2014, No. 8
AN ACT to regulate trusts, trustees, trust property and
beneficiaries and for related purposes. [7th
April 2014]
BE IT ENACTED by the Legislative Assembly of Samoa in
Parliament assembled as follows:
PART 1
PRELIMINARY
1. Short title and commencement-(1) This Act may be cited
as the Trusts Act 2014.
(2) This Act commences on the date of assent.
4 Trusts 2014, No. 8
2. Interpretation - In this Act, unless the context otherwise
requires:
“asset management functions of trustees”, for section 32(12) to
(14), means:
(a) the investment of assets being or forming part of the
trust property; and
(b) the acquisition of property being or forming part of the
trust property; and
(c) managing and disposing of trust property and creating
or disposing of any interest in trust property.
“charitable trust” means a trust complying with section 65;
“class interest” means a trust or interest under a trust, which is
in favour of a class of persons;
“country” does not include Samoa;
“Court” means the Supreme Court of Samoa;
“custodian” for trust property, means a person who:
(a) is appointed in writing to undertake the safe custody of
all or part of the trust property or of any documents
or records concerning trust property; and
(b) satisfies the conditions set out in section 33(6).
“domicile” means the permanent home of a natural person
initially determined by reference to the permanent home of
his or her father (or if his or her father is unknown or
unidentifiable by reference to the permanent home of his or
her mother) at the date of birth of that natural person which
may be changed thereafter when that natural person has
attained the age of 21 by the intention of that natural person
determined by evidence beyond reasonable doubt relating
to the lifestyle of that natural person;
“duty of care” means the duty of a trustee under section 30;
“estoppel” means the equitable right of the Court to prevent an
action of any person;
“excluded person” means a person who can never benefit
directly or indirectly from a Samoan trust;
“foreign benefitting trust” means a trust of which the proper
law is the Law and of which a trust corporation is trustee
and which is neither created by a citizen of or a tax resident
of Samoa and which has no Samoan citizens or Samoan tax
residents as beneficiaries;
2014, No. 8 Trusts 5
“foreign court” means the court of another country than
Samoa;
“foreign law” means the law of another country than Samoa or
of another jurisdiction than Samoa, whether within that
other country or not;
“foreign trust” means a trust of which the proper law is foreign
law;
“general power of investment” means the trustee’s power of
investment under section 31;
“instrument in writing”:
(a) means an executed document; and
(b) includes -
(i) a document executed under hand and not
under seal;
(ii) a deed; and
(iii) a will and a codicil.
“interested person” for a trust, means a settlor, trustee,
beneficiary, protector, enforcer or any other person given
leave by the Court;
“Law” means the law of Samoa;
“policy statement”, for section 32(13), means a memorandum
in writing prepared by the trustees of a Samoan trust, or
prepared for them and approved by them, giving guidance
to an agent to be appointed by them with regard to the
exercise of their asset management functions;
“proper advice”, for section 31, means the advice of a person
who is reasonably believed by the trustee to be qualified to
give the trustee investment advice because of the person’s
ability in and practical experience of financial and other
matters relating to a proposed investment for the trust of
which the trustee is trustee;
“proper law” means the law of a jurisdiction which is the
governing law of a trust;
“property” means any moveable or immovable property
wherever situated and includes rights and interests, whether
present or future and whether vested or contingent;
6 Trusts 2014, No. 8
“purpose trust” means a trust for a non-charitable purpose or
for non-charitable purposes whether together with a
charitable purpose or charitable purposes and a person or
persons or not;
“real property” means land and buildings and other
immoveable property built upon or permanently secured to
land;
“reasonable remuneration”, for services provided by a trustee,
means any remuneration as is reasonable in the
circumstances for providing the services to or on behalf of
that trust by that trustee;
“rules of a company” means the rules of a company set out in
the Companies Act 2001, and includes an article of
association or memorandum of association of a company;
“Samoan company” means a company incorporated under the
Law;
“Samoan trust” means a trust the proper law of which is or
becomes the Law;
“settlor” means a person who provides trust property or makes
a testamentary disposition upon trust or to a trust;
“standard investment criteria”, for a Samoan trust, means:
(a) the suitability to the trust of investments of the same
kind as any particular investment proposed to be
made or retained and of that particular investment
as an investment of that kind; and
(b) the need for diversification of investments of the trust in
so far as is appropriate to the circumstances of the
trust.
“trust corporation” means a company registered or licensed to
carry on business as a trustee company under the Law;
“trust property” means property for the time being held by a
trustee subject to a trust.
3. Application of the Act - Except as provided in this Act, the
Act applies to trusts created before or after the commencement of
this Act.
2014, No. 8 Trusts 7
PART 2
CREATION AND NATURE OF TRUSTS
4. The nature and existence of a trust - A trust exists if a
person (“trustee”) holds or has vested in the trustee, or is deemed
to have vested in the trustee, property, of which the trustee is not
the owner in the trustee’s own right:
(a) for the benefit of any other person than the trustee
(“beneficiary”) whether or not yet ascertained or in
existence; or
(b) for any purpose which is not for the benefit only of the
trustee; or
(c) both for the benefit mentioned in paragraph (a) and (b).
5. The requirements for the creation of a trust - A trust is
properly created if all the following requirements are met:
(a) the settlor has the capacity to create the trust;
(b) the settlor indicates an intention not made under duress
to create the trust;
(c) the trust either -
(i) has a beneficiary ascertainable now or in
the future; or
(ii) is a charitable trust; or
(iii) is a purpose trust; or
(iv) is for the benefit of such a beneficiary
and also for a purpose, whether charitable or
not;
(d) the trustee has ascertainable property accepted by the
trustee at the absolute discretion of the trustee and
vested in the trustee for the benefit of a beneficiary
or for a charitable or a non-charitable purpose or for
all or any of them.
6. The form which a trust may take-(1) Subject to
subsections (2) to (4), a trust may be created by any of the
following methods:
(a) oral declaration;
(b) instrument in writing;
(c) conduct;
8 Trusts 2014, No. 8
(d) in any other manner whatsoever.
(2) A unit trust may only be created by an instrument in
writing.
(3) Technical expressions or words are not needed for the
creation of a trust.
(4) A trust may be created and be valid in law if created in any
language but, if that language is not English, an English translation
of the original document constituting the trust must:
(a) be made and certified by a notary public; and
(b) retained by the trustee.
7. Property which may be held in trust - Subject to section
10:
(a) property may be held by or vested in a trustee upon
trust; and
(b) a trustee may, at the absolute discretion of the trustee,
accept any property from any person to be added to
the trust property.
8. The proper law and the power to change the proper law-
(1) The proper law is to be selected in the following order of
priority:
(a) subject to paragraph (d), the law of the jurisdiction
selected by the settlor and expressed by the
provisions of the trust to be the proper law; or
(b) subject to paragraph (d), the law of the jurisdiction to be
implied from the provisions of the trust; or
(c) the law of the jurisdiction with which the trust had the
closest connection at the time of its creation; and
(d) if the law of a jurisdiction is expressed to be or is
implied to be the proper law but that law does not
provide for trusts or for the category of trust
concerned, paragraph (c) applies.
(2) If it is necessary to determine the law of the jurisdiction
with which a trust had the closest connection at the time of its
creation, reference is to be had in particular to the following
factors:
(a) the place of administration of the trust designated by the
settlor;
2014, No. 8 Trusts 9
(b) the location of the assets of the trust;
(c) the place of residence or business of the trustee; and
(d) the objects of the trust and the places where they are to
be fulfilled.
(3) The following provisions apply to a change of proper law:
(a) if a trust so provides, the proper law may be changed to
or from the Law, under the trust, if -
(i) for a change to the Law, the change is
recognised by the proper law previously in
effect; or
(ii) for a change from the Law, the new
proper law would recognise the validity of the
trust and the trusts, powers and provisions of the
trust remain enforceable and capable of being
exercised;
(b) a change in the proper law does not affect the legality or
validity of, or render any person liable for, anything
done before the change.
9. Matters determined by the Law-(1) Subject to the
provisions of the trust, all questions arising in relation to a Samoan
trust or any disposition of property to or upon such a trust,
including (without limitation) questions as to:
(a) the capacity of the settler;
(b) the validity, interpretation or effect of the trust or
disposition or any variation or termination of the
trust;
(c) the administration of the trust, whether it is conducted
in Samoa or elsewhere, including (without
limitation) questions as to the functions,
appointment and removal of trustees, protectors and
enforcers;
(d) the existence and extent of any functions in respect of
the trust, including (without limitation) powers of
variation, revocation and appointment, and the
validity of the exercise of any such function; and
(e) the distribution of the trust property,
are to be determined according to the Law, without reference to
any foreign law.
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(2) Subsection (1):
(a) does not validate any disposition of property which is
neither owned by the settlor nor is the subject of a
power of disposition vested in the settlor;
(b) does not affect the recognition of any foreign law in
determining whether the settlor is the owner of any
property or the holder of any such power;
(c) is subject to any express provision to the contrary in the
trust or disposition;
(d) does not, in determining the capacity of a corporation,
affect the recognition of the law of its place of
incorporation;
(e) does not affect the recognition of any foreign law
prescribing the formalities for the disposition of
property;
(f) subject to subsection (3), does not validate any trust or
disposition of real property situated in a jurisdiction
other than Samoa, which is invalid under the law of
that jurisdiction; and
(g) subject to subsection (3), does not validate any
testamentary disposition which is invalid under the
law of the testator’s domicile at the time of his
death.
(3) No Samoan trust, and no disposition of property to or upon
such a trust, is void, voidable, liable to be set aside, invalid or
subject to any implied condition, nor is the capacity of any settlor,
trustee, protector, enforcer or beneficiary to be questioned, nor is
any settlor, trustee, protector, enforcer, beneficiary or any other
person to be subjected to any obligation or liability or deprived of
any right, claim or interest, by reason that:
(a) any foreign law prohibits or does not recognise the
concept of a trust; or
(b) the trust or disposition avoids or defeats or potentially
avoids or defeats rights, claims, interests,
obligations or liabilities conferred or imposed by a
foreign law on any person -
(i) by reason of a personal relationship to a
settlor or any beneficiary; or
(ii) by way of foreign heirship rights; or
2014, No. 8 Trusts 11
(c) contravenes or potentially contravenes foreign law,
judgment, order or action under any foreign law
intended to recognise, protect, enforce or give effect
to any such rights, claims, interests, obligations or
liabilities.
(4) Despite any current foreign law on the recognition or
enforcement of judgments, a judgment or order made under the
foreign law must not be recognised or enforced or give rise to any
right, obligation or liability or raise any estoppel if:
(a) it is inconsistent with this Act; or
(b) ordered by the Court, for the purposes of protecting the
interests of the beneficiaries or in the interests of the
proper administration of the trust.
(5) Despite any other provision of this Act, this section applies
whenever the trust or disposition arose or was made.
10. Validity and enforceability of a trust-(1) Subject to
subsections (2) and (3), a trust is valid and enforceable under its
provisions.
(2) A trust is invalid and unenforceable if:
(a) it purports to do anything contrary to the Law; or
(b) it confers or imposes any right or function the exercise
or discharge of which would be contrary to the law;
or
(c) it has no beneficiary identifiable or ascertainable under
section 16, unless -
(i) it is for a charitable purpose; or
(ii) it is for a non-charitable purpose in
relation to which it is valid and enforceable by
virtue of section 66; or
(d) the Court declares that -
(i) it was established by duress,
fraud, mistake, undue influence or
misrepresentation or in breach of fiduciary duty;
(ii) it is immoral or contrary to public
policy;
(iii) its provisions are so uncertain that its
performance is rendered impossible; or
12 Trusts 2014, No. 8
(iv) the settlor was, at the time of its
creation, incapable of creating such a trust.
(3) If some of the provisions of a trust are invalid but others are
not:
(a) if the provisions cannot be separated, the trust is invalid;
and
(b) if the provisions can be separated, the Court may
declare that the trust is valid as to the provisions
which are valid.
(4) If a trust is partially invalid, the Court may declare what
property is and what property is not to be held subject to the trust.
(5) Property as to which a trust is invalid must, subject to any
order of the Court, be held by the trustees on trust for the settlor
absolutely or, if the settlor is dead, for the settlor’s personal
representative.
(6) An application to the Court under this section may be made
by any interested person.
11. Jurisdiction of the Court-(1) The Court has jurisdiction if:
(a) the trust is a Samoan trust; or
(b) a trustee of a foreign trust is resident in Samoa; or
(c) any trust property of a foreign trust is situated in Samoa;
or
(d) the administration of any trust property of a foreign
trust is carried on in Samoa.
(2) The Court may intervene in the administration of a trust if
its jurisdiction is invoked by an interested person or as provided by
the law.
(3) A trust is not subject to continuing judicial supervision by
the Court unless so ordered by the Court.
(4) A judicial proceeding before the Court concerning or
involving a trust may relate to any matter regarding the
administration of that trust, including a request for instructions, an
application for an order for directions and an action to declare
rights.
(5) A trustee may apply to the Court for direction, opinion or
advice concerning the manner in which the trustee may or should
act in connection with any matter concerning the trust and the
Court may make any order it thinks fit.
2014, No. 8 Trusts 13
(6) The Court may:
(a) make an order concerning -
(i) the execution or the administration of any
trust;
(ii) the trustee of any trust, including an
order relating to the exercise of any power,
discretion or duty of the trustee, the appointment
or removal of a trustee, the remuneration of a
trustee, the submission of accounts, the conduct
of the trustee and payments, whether payments
into the Court or otherwise;
(iii) the vesting of trust property;
(iv) a beneficiary or any person having a
connection with the trust as the Court may
determine; or
(v) the appointment or removal of an
enforcer;
(b) make a declaration as to the validity or the
enforceability of a trust; or
(c) rescind or vary any order or declaration made under the
Law, or make any new or further order or
declaration.
(7) The costs and expenses of and incidental to an application
to the Court under this Act are to be paid out of the trust property
or be borne and paid in any other manner and by any other person
as the Court may order.
12. Fraudulent trust or disposition-(1) If it is proved beyond
reasonable doubt, by a claiming creditor, that a Samoan trust, or
property disposed of to a Samoan trust:
(a) was created or disposed of by or on behalf of the settlor
with principal intent to defraud that creditor of the
settlor; and
(b) did, at the time such creation or disposition took place,
render the settlor, insolvent or without property by
which that creditor’s claim, if successful, could
have been satisfied,
14 Trusts 2014, No. 8
the creation or disposition is not void or voidable but the trust
property is to be available to satisfy that creditor’s claim to the
extent which, but for such creation or disposition, it would have
been available to satisfy that creditor’s claim immediately prior to
the creation or disposition.
(2) In determining under subsection (1) whether the creation of
a Samoan trust or a disposition to a Samoan trust has rendered the
settlor insolvent or without property by which a creditor’s claim, if
successful, may be satisfied:
(a) the fair market value of the settlor’s property (not being
trust property of that trust) must be taken into
account, at the time immediately after the creation
or disposition; and
(b) if the fair market value of the property exceeded the
value of the creditor’s claim, at that time, then the
Samoan trust so created or the disposition to it, is,
for the purposes of this Act, taken not to have been
so created, or made, with principal intent to defraud
the creditor.
(3) The creation of a Samoan trust and a disposition of property
to the Samoan trust are not fraudulent as against a creditor of a
settlor:
(a) if its creation or the disposition takes place after the
expiration of two (2) years from the date that
creditor’s cause of action accrued; or
(b) if its creation or the disposition takes place before the
expiration of two (2) years from the date that
creditor’s cause of action accrued and that creditor
fails to commence that action before the expiration
of one (1) year from the date of the creation or
disposition.
(4) The creation of a Samoan trust and a disposition of property
to that Samoan trust is not fraudulent as against a creditor of a
settlor if the creation or the disposition of property took place
before that creditor’s cause of action against the settlor accrued or
had arisen.
(5) A settlor must not be imputed with intent to defraud a
creditor if the settlor:
2014, No. 8 Trusts 15
(a) has created a Samoan trust or has disposed of property
to that Samoan trust within two (2) years from the
date of that creditor’s cause of action accruing; or
(b) is a beneficiary.
(6) If the trust property of a Samoan trust is liable to satisfy a
creditor’s claim in the manner provided for in subsection (1) but
cannot be so used because the property has been disposed of, other
than to a bona fide purchaser for value, the disposition is void.
(7) In this section:
“creditor” includes a person who alleges a cause of action;
“date when the cause of a creditor’s action accrued” means:
(a) the date of that act or omission which is to be relied
upon by either partly to wholly establish the cause
of action and, if there is more than one (1) act or the
omission is a continuing one, the date of the first act
or the date on which the omission first occurred;
and
(b) for a judgment, the date of that act or omission giving
rise to the judgment, or if there is more than one (1)
act or the omission is a continuing one, the date of
the first act or the date on which the omission first
occurred, as the case may be, which gave rise to the
judgment.
13. Unenforceable foreign claim or judgment-(1) If a
Samoan trust is validly created under this Act, the Court must not
vary it or set it aside or recognise the validity of any claim against
the trust property pursuant to any foreign law or the order of any
foreign court for:
(a) the personal and proprietary consequences of marriage
or the termination of marriage;
(b) the succession rights, whether testate or intestate
including the fixed shares or interests of spouses or
relatives;
(c) any claims or orders made by a foreign court with
regard to matters referred to in paragraph (a) or (b)
concerning foreign law relating to the settlor or any
beneficiary;
16 Trusts 2014, No. 8
(d) the claims of creditors in an insolvency subject to
section 12;
(e) any claims with regard to the validity of any transfer or
disposition of property into the Samoan trust;
(f) any claims with regard to the capacity of the settlor; or
(g) any claims by reason that any foreign law prohibits or
does not recognise the concept of a trust.
(2) For the avoidance of doubt, it is hereby declared that in the
event of any inconsistency between the proper law of a trust and
any foreign law relating to the settlor or any beneficiary, the
former shall prevail.
PART 3
DURATION AND ACCUMULATION
14. Duration of a trust-(1) A Samoan trust may be expressed
to continue for a fixed period or until the happening of a specified
event.
(2) If a Samoan trust is not expressed to continue for a fixed
period or until the happening of a specified event, then, subject to
other provisions of this section and this Act, the trust continues
indefinitely.
(3) Despite subsections (1) and (2) and the trust and subject to
subsection (4), the trustee may by deed:
(a) declare that a trust which continues indefinitely
terminates at the end of a fixed period or upon the
happening of a specified event; and
(b) declare that a trust which terminates at the end of a
fixed period or upon the happening of a specified
event continues indefinitely; and
(c) alter the provisions of a trust by limiting or extending a
fixed period during which it continues or changing
or declaring the specified event upon the happening
of which it will terminate.
(4) The trust may contain any of the provisions under
subsection (3) and, unless the trust provides otherwise, the trustee
may by deed alter or vary the trust to permit any of the matters
under subsection (3); and in that case the trust takes precedence
over subsection (3).
2014, No. 8 Trusts 17
15. Power of accumulation of income and of advancement-
(1) A trust may direct or permit, at the trustee’s discretion,
accumulation of all or any part of the income of the trust for any
period or until the happening of any specified event.
(2) If a trust does not contain provisions similar to those in
subsection (1), the income of the trust may be accumulated in
whole or part at the discretion of the trustee throughout the
continuation of the trust.
(3) Subject to subsection (4), income of the trust which is not
accumulated under subsections (1) and (2) must be distributed.
(4) Subject to the trust and to any prior interests or charges
affecting the trust property, if a beneficiary is a minor and whether
or not the beneficiary’s interest:
(a) is a vested interest; or
(b) is an interest which will become vested -
(i) on attaining the age of majority;
(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 beneficiary pending the
attainment of the date of majority or the
later age or the happening of the event;
or
(B) apply the income or part of it to or for the
maintenance, education or other benefit
of the beneficiary; or
(C) advance or appropriate to or for the benefit
of the beneficiary the interest or part of
the interest.
(5) The receipt of a parent or the lawful guardian of a
beneficiary who is a minor is sufficient discharge to the trustee for
a payment made under subsection (4).
(6) Subject to subsection (8), the trust and any prior interests or
charges affecting the trust property, the trustee may advance or
apply the trust property for the benefit of the beneficiary.
(7) The trust property advanced or applied under subsection (6)
is to be brought into account when determining the share of the
beneficiary in the trust property.
18 Trusts 2014, No. 8
(8) Any part of the trust property advanced or applied under
subsection (6) must not exceed the presumptive, contingent or
vested share of the beneficiary in the trust property.
PART 4
PARTIES TO A TRUST
16. Who may be beneficiaries and the identification of
them-(1) A beneficiary must 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 reference to which, under
the provisions of the trust, members of a class
are to be determined.
(2) A settlor or trustee or protector or enforcer of a trust may
also be a beneficiary of the trust.
17. Powers to add to and remove from the beneficiaries and
to create excluded persons-(1) A Samoan trust may provide for
powers exercisable by the settlor or the protector or the trustee or
any other person or persons whether alone or jointly or in
succession and in order of priority by deed revocable or
irrevocable:
(a) to add to the beneficiaries;
(b) to remove from the beneficiaries; and
(c) to create excluded persons.
(2) If an existing beneficiary of a Samoan trust is created as an
excluded person, the action does not invalidate any prior
distribution made to or benefit given to that beneficiary from the
trust.
18. Disclaimer-(1) Despite the provisions of a Samoan trust, a
beneficiary of a Samoan trust may disclaim, either permanently or
for any period specified by the beneficiary, the whole or any part
of that beneficiary’s interest under that Samoan trust whether or
not that beneficiary has received any benefit from the interest.
2014, No. 8 Trusts 19
(2) A disclaimer made under subsection (1):
(a) must be made in writing;
(b) may, subject to the Samoan trust, be revocable and it is
exercisable in the manner and under the
circumstances so expressed; and
(c) does not affect the rights and interests of the beneficiary
prior to the disclaimer.
19. Class interest - Subject to the provisions of a Samoan
trust, the following apply if a trust, or an interest under a trust, is in
favour of a class of persons:
(a) a class closes when it is no longer possible for any other
person to become a member of the class;
(b) a woman who is over 50 years is taken to be no longer
capable of bearing a child;
(c) if a class interest relates to income and for any period
there is no member of the class in existence, the
income is to be -
(i) accumulated; and
(ii) subject to section 15, retained until there
is a member of the class in existence or the class
closes.
20. Interest of a beneficiary and dealing with such interest -
The interest of a beneficiary:
(a) is personal property; and
(b) subject to the provisions of the trust, may be transferred,
assigned, charged or otherwise dealt with.
21. Protector-(1) A Samoan trust may provide for the
appointment of a protector revocably or irrevocably by deed.
(2) Subject to the trust, a natural person of full age and of
sound mind or body corporate or any firm or partnership or group
or body of persons, whether incorporated or unincorporated, other
than the trustee or enforcer of the trust, may be appointed
protector, including the settlor and any beneficiary.
20 Trusts 2014, No. 8
(3) The trust or a separate deed, to which the settlor (if named
in the deed constituting the trust), the trustee and the protector are
to be parties, may provide for matters concerning the office and
role of protector, including but not limited to:
(a) the acceptance by the protector of the office of protector
and confirming, if appropriate, that person is willing
and capable of being appointed and has been
independently advised on the role and powers of the
protector, or does not require that independent
advice, and accepts the appointment;
(b) the appointment of joint protectors revocably or
irrevocably;
(c) the appointment of successor protectors revocably or
irrevocably, which may be in succession to one
another;
(d) the appointment of a protector if there is no protector;
(e) the information to be given to a protector; and
(f) any other matters subsequently referred to in this
section.
(4) A protector must be reimbursed all proper and reasonable
expenses for the performance of the office of protector and, subject
to the trust, a protector may charge reasonable remuneration for the
performance of services as protector of the trust.
(5) A protector may, by the trust or a separate deed, be granted
any proactive power or that the exercise of any power by the
trustee requires the prior written consent of the protector.
(6) Subject to the trust, a protector has the following proactive
powers:
(a) to remove and to appoint new or additional trustees;
(b) to add any person as a beneficiary of the trust;
(c) to remove any person as beneficiary of the trust;
(d) to create any excluded person;
(e) to change the proper law of the trust; and
(f) to change the forum of administration of the trust.
(7) If there are joint protectors of the trust, subject to contrary
provisions in the trust, any functions or powers conferred on the
protectors may be exercised by them by majority of protectors.
2014, No. 8 Trusts 21
(8) A protector who dissents from a decision of the majority of
the protectors may require his or her dissent to be recorded in
writing.
(9) A protector exercising any one (1) or more of the powers
conferred by the trust or by a separate deed is taken not, by virtue
of that exercise of powers, to be a trustee.
(10) If:
(a) the consent of the protector is required to the exercise of
a power by the trustee, the consent is properly
given and the trustee acts in good faith; or
(b) the trustee acts under a direction of the settlor or the
protector properly given under the trust or any
separate deed and the trustee acts in good faith,
the trustee is not liable for any loss directly or indirectly arising
from any resulting act or omission.
(11) A protector may by deed release or extinguish all or any of
the powers given to the protector.
22. Enforcer-(1) A purpose trust created under section 66 must
provide for the appointment of:
(a) an enforcer; and
(b) a new enforcer at any time when there is no enforcer,
and it is not invalid to that extent.
(2) Except as provided in subsection (3), a trustee of a purpose
trust or a person who has a conflict of interest in acting as enforcer
of the purpose trust must not be appointed or remain as enforcer of
the purpose trust.
(3) The settlor, the personal representatives of the settlor, a
corporation or any other person, may be appointed enforcer of a
purpose trust.
(4) The duty of the enforcer is to enforce the non-charitable
purposes of a purpose trust.
(5) Except as permitted by this Act or expressly provided by
the trust, or with the approval of the Court, an enforcer must not:
(a) directly or indirectly profit from his or her appointment;
(b) cause or permit any other person to profit directly or
indirectly from such appointment; or
22 Trusts 2014, No. 8
(c) on his own account enter into any transaction with the
trustees or relating to the trust property which may
result in profit to him or the trustee.
(6) Subject to subsection (7):
(a) an enforcer may resign from office by written notice
delivered to the trustee, effective upon delivery of
notice; and
(b) the resignation does not release the enforcer from any
liability concerning the purpose trust of which he or
she was enforcer arising before the resignation took
effect.
(7) A resignation given in order to facilitate a breach of trust
has no effect.
(8) An enforcer ceases to be an enforcer of the trust in relation
to its non-charitable purposes immediately upon:
(a) the enforcer’s removal from office by the Court;
(b) the enforcer’s resignation becoming effective;
(c) the coming into effect of a provision in a trust under
which the enforcer is removed from office or
otherwise ceases to hold office; or
(d) the enforcer’s appointment as a trustee of the trust.
(9) When there is no enforcer of a purpose trust, the trustee of
the purpose trust must take necessary steps to secure the
appointment of a new enforcer.
(10) If the trustee of a purpose trust has reason to believe that
the enforcer is unwilling or refuses to act, or is unfit to act or
incapable of acting, the trustee must apply to the Court for removal
of the enforcer and the appointment of a replacement.
(11) An enforcer must be provided with:
(a) the accounts, including the annual accounts of the
purpose trust;
(b) copies of the trust instrument setting up the purpose
trust and any deed or documents referred to in the
instrument or ancillary to it;
(c) any legal opinions and advice received by the trustees;
and
(d) any other documents or information to which he may be
entitled under the provisions of the purpose trust.
2014, No. 8 Trusts 23
(12) An enforcer has:
(a) the same rights as a person with a beneficial interest
under an ordinary trust to take administrative
actions and other actions, including making an
application to the Court for its direction, for the
good of the trust;
(b) the rights of a trustee of an ordinary trust to protection,
indemnity and payment of expenses out of trust
property, and to make applications to the Court
under section 81; and
(c) on behalf of the trust, the same personal and proprietary
remedies for breach of trust against a trustee and
against third parties as a beneficiary of an ordinary
trust.
PART 5
TRUSTEES
23. Number of trustees-(1) The number of trustees of a trust
must be at least two (2), unless:
(a) only one (1) trustee was originally appointed;
(b) a trust corporation is appointed;
(c) the Public Trustee is acting; or
(d) the trust provides otherwise.
(2) A trust does not fail on the ground that there is no trustee or
less than the number required by subsection (1).
(3) If the number of trustees falls below the minimum number
required by subsection (1) or, if greater by the trust, the required
number of new trustees must be appointed as soon as practicable.
(4) While there are fewer trustees than are required by the trust,
the existing trustees may only act for the purpose of preserving the
trust property.
24. Appointment of trustees-(1) If the following occur a new
or additional trustee may be appointed under subsection (2):
(a) a Samoan trust contains no provision for the
appointment of a new or additional trustee;
(b) the provision has lapsed or failed; or
24 Trusts 2014, No. 8
(c) the person with power to make the appointment is not
capable of exercising the power.
(2) A new or additional trustee may be appointed by the
following persons in the following order of priority:
(a) the existing trustee;
(b) the last remaining trustee;
(c) the personal representative or liquidator of the last
remaining trustee; or
(d) the Court.
(3) Subject to the trust, a trustee appointed under this section
has the same functions, and may act in all respects, as if the trustee
had been originally appointed a trustee.
(4) The Court may remove a trustee with power to appoint a
new or additional trustee who fails to exercise that power.
(5) On the appointment of a new or additional trustee, anything
necessary to vest the trust property in the trustee jointly with any of
his co-trustees must be done.
25. Acceptance of trusteeship-(1) Subject to subsection (3), a
person appointed as trustee need not accept the appointment but
the person is taken to have done so if the person knowingly takes
part in or interferes with the trust or its affairs.
(2) A person appointed as trustee may, before acceptance
(actual or deemed):
(a) disclaim the appointment by notice in writing to the
settlor or to the other trustees; or
(b) if the settlor is dead or cannot be found, and there are no
other trustees, apply to the Court for relief from the
appointment, whereupon the Court may make any
order as it thinks fit.
(3) If the person appointed as a trustee does not act under
subsection (2) within a reasonable time of becoming aware of the
appointment, the person is taken to have accepted it.
(4) A person designated as trustee, without accepting the
trusteeship, may without liability for loss:
(a) act to preserve the trust property if, within a reasonable
time after acting, the person sends a written
rejection of the trusteeship to the settlor or, if the
2014, No. 8 Trusts 25
settlor is dead or lacks capacity, to a named
beneficiary;
(b) inspect or investigate trust property to determine
potential liability under the proper law or any
foreign law or for any other purposes; or
(c) apply to the Court for directions or advice.
26. Vacancy in trusteeship-(1) A vacancy in a trusteeship
occurs if:
(a) a person designated as trustee rejects the trusteeship;
(b) a person designated as trustee cannot be identified or
does not exist;
(c) a trustee resigns;
(d) a trustee is removed;
(e) a trustee dies; or
(f) a guardian is appointed for an individual serving as
trustee.
(2) Section 24(1) and (2) applies, if a trust does not provide for
the appointment of a new trustee.
(3) Subject to the trust, a trustee appointed under this section
has the same powers, discretions and duties and may act as if the
trustee had been originally appointed a trustee.
(4) The Court may:
(a) remove a trustee empowered to appoint a new trustee
who fails to exercise that power; and
(b) appoint a new trustee.
(5) If one (1) or more co-trustees remain in office, a vacancy in
a trusteeship need not be filled.
(6) A vacancy in trusteeship must be filled if the trust has no
remaining trustee.
(7) A trust does not fail if there is no trustee.
27. Resignation or removal of trustees-(1) A trustee, other
than a sole trustee, may resign from office by delivering a written
notice of resignation to his or her co-trustees.
(2) Subject to subsection (3) and the trust, a resignation takes
effect:
(a) on delivery of the notice; or
26 Trusts 2014, No. 8
(b) on any later date or on the happening of any later event
specified in the notice.
(3) A resignation has no effect if:
(a) it is given to facilitate a breach of trust; or
(b) it would result in there being no trustee or less than the
number required by section 23.
(4) The Court may, on its own initiative or on application of a
settlor, a protector, an enforcer, a co-trustee, or a beneficiary,
remove a trustee if:
(a) the trustee has committed a breach of trust;
(b) lack of cooperation among co-trustees substantially
impairs the administration of the trust;
(c) because of unfitness, unwillingness, or persistent failure
of the trustee to administer the trust, the Court
determines that removal of the trustee best serves
the interests of the beneficiaries; or
(d) there has been a substantial change of circumstances or
removal is requested by all of the beneficiaries, and
the Court finds that removal of the trustee best
serves the interests of all the beneficiaries and is not
inconsistent with a material purpose of the trust, and
a suitable co-trustee or successor trustee is
available.
(5) Pending a final decision on a request to remove a trustee, or
in lieu of or in addition to removing a trustee, the Court may order
an appropriate relief under section 81.
28. The position of the outgoing trustee-(1) Subject to
subsection (3), a trustee who resigns or is removed must proceed
expeditiously to deliver the trust property within the trustee’s
possession to the co-trustee, successor trustee or other person
entitled to it.
(2) Unless a co-trustee remains in office or the Court otherwise
orders, and until the trust property is delivered to a successor
trustee or other person entitled to it, a trustee who has resigned or
been removed has the duties of a trustee and the powers necessary
to protect the property.
2014, No. 8 Trusts 27
(3) A trustee who resigns or is removed may require to be
provided with reasonable security for liabilities, whether existing
future contingent or otherwise, before transferring or surrendering
trust property.
(4) A trustee who resigns or is removed and has complied with
subsection (1) is released from liability to any beneficiary, trustee
or person interested under the trust for any act or omission in
relation to the trust property or the trustee’s duty as a trustee except
liability:
(a) arising from any breach of trust to which the trustee was
a party or to which the trustee was privy; or
(b) for actions to recover from the trustee trust property or
the proceeds of trust property in the possession of
the trustee.
29. Duties of trustees-(1) The duties of the trustees are:
(a) matters referred to in subsections (2) and (3), which
override the provisions of a Samoan trust; and
(b) matters referred to in subsections (4) to (9), which are
subject to the provisions of a Samoan trust.
(2) A trustee:
(a) may make an application to the Court for direction,
opinion or advice concerning the manner in which
he may or should act in connection with any matter
concerning the trust and the Court may make such
order, if any, as it thinks fit; and
(b) subject to this Act, must carry out and administer the
trust in accordance with its provisions.
(3) The compulsory duties of a trustee include the following:
(a) a trustee must keep accurate accounts and records of the
trustee’s trusteeship;
(b) a trustee must keep trust property separate from his or
her personal property and separately identifiable
from any other property of which he or she is a
trustee;
(c) a trustee of a purpose trust must comply with section
22(9) and (10).
28 Trusts 2014, No. 8
(4) Subject to the trust, a trustee must:
(a) so far as is reasonable, preserve the value of the trust
property; and
(b) so far as is reasonable, enhance the value of the trust
property.
(5) Except with the approval of the Court, or as permitted by
this Act or expressly provided by the provisions of the trust, a
trustee must not:
(a) directly or indirectly profit from the trustee’s
trusteeship;
(b) cause or permit any other person to profit directly or
indirectly from the trustee’s trusteeship; or
(c) on the trustee’s own account enter into any transaction
with the trustees or relating to the trust property
which may result in a profit.
(6) Subject to the trust, if there is more than one (1) trustee, all
the trustees must join in performing the trust.
(7) Subject to subsection (8), if there is more than one (1)
trustee, a power or discretion given to the trustees must not be
exercised unless all the trustees agree on its exercise.
(8) A trust may empower trustees to act by a majority but a
trustee who dissents from a decision of the majority of the trustees
may require the trustee’s dissent to be recorded in writing.
(9) Subject to the trust, if there is more than one (1)
beneficiary, or more than one (1) purpose, or at least one (1)
beneficiary and at least one (1) purpose, a trustee must be impartial
and must not execute the trust for the advantage of one (1) at the
expense of another.
30. Duty to exercise care and skill-(1) Subject to subsection
(2), when a duty under this section and sections 31 to 42 applies to
a trustee, the trustee must exercise such care and skill as is
reasonable in the circumstances, having regard in particular:
(a) to any special knowledge or experience that the trustee
has or holds himself or herself out as having; and
(b) if the trustee acts as trustee in the course of a business
or profession, to any special knowledge or
experience that it is reasonable to expect of a person
2014, No. 8 Trusts 29
acting in the course of that kind of business or
profession.
(2) The duty referred to in subsection (1) applies to the extent
specified in the Schedule and particularly to paragraph 4 of the
Schedule.
31. Power of investment-(1) Subject to subsection (5), a
trustee may make any kind of investment that the trustee could
make if the trustee were absolutely entitled to the trust property.
(2) Subsection (1) does not permit a trustee to make
investments in land other than in loans secured on land.
(3) A person invests in a loan secured on land if the person has
rights under any contract under which:
(a) one (1) person provides another with credit; and
(b) the obligation of the borrower to repay is secured on
land.
(4) In this section:
“credit” includes any cash loan or other financial
accommodation;
“cash” includes money in any form.
(5) In exercising any power of investment, whether arising
under this section or otherwise, a trustee must have regard to the
standard investment criteria.
(6) A trustee must, from time to time, review the investments
of the trust and consider whether, having regard to the standard
investment criteria, the investments should be varied.
(7) Subject to subsection (9), before exercising any power of
investment, whether arising under this section or otherwise, a
trustee must obtain and consider proper advice about the way in
which, having regard to the standard investment criteria, the power
should be exercised.
(8) Subject to subsection (9), when reviewing the investments
of the trust, a trustee must obtain and consider proper advice about
whether, having regard to the standard investment criteria, the
investments should be varied.
(9) A trustee is not required to obtain advice under subsection
(7) or (8) if the trustee reasonably concludes that in all the
circumstances it is unnecessary or inappropriate to do so.
30 Trusts 2014, No. 8
(10) The general power of investment is:
(a) in addition to powers conferred on trustees otherwise
than by this Act; but
(b) subject to any restriction or exclusion imposed by the
trust instrument.
(11) Subsection (1) applies in relation to trusts whether created
before or after the commencement of this Act.
32. Agents-(1) Subject to other provisions of this section, the
trustees of a trust may authorise a person to exercise any or all of
their delegable functions as their agent.
(2) For a trust, other than a charitable trust, the trustees’
delegable functions consist of any function other than:
(a) a function relating to whether or in what way any assets
of the trust should be distributed; or
(b) a power to decide whether any fees or other payment
due to be made out of the trust funds should be
made out of income or capital; or
(c) a power to appoint a person to be a trustee of the trust;
or
(d) a power conferred by any other enactment or the trust
instrument which permits the trustees to delegate
any of their functions or to appoint a person to act
as a nominee or custodian.
(3) For a charitable trust, the trustees’ delegable functions are:
(a) any function consisting of carrying out a decision that
the trustees have taken;
(b) any function relating to the investment of assets subject
to the trust (including, in the case of land held as an
investment, managing the land and creating or
disposing of an interest in the land);
(c) any function relating to the raising of funds for the trust
otherwise than by means of profits of a trade which
is an integral part of carrying out the trust’s
charitable purpose;
(d) any other prescribed function.
2014, No. 8 Trusts 31
(4) In subsection (3)(c), a trade is an integral part of carrying
out the charitable purpose of a charitable trust if, whether carried
on in Samoa or elsewhere, the profits are applied solely to the
purposes of the trust and either:
(a) the trade is exercised in the course of the actual carrying
out of a primary purpose of the trust; or
(b) the work in connection with the trade is mainly carried
out by beneficiaries of the trust.
(5) Subject to subsections (6) and (7), the persons whom the
trustees may under this section authorise to exercise functions as
their agent include one (1) or more of their number.
(6) The trustees:
(a) may not authorise two (2) or more persons to exercise
the same function unless they are to exercise the
function jointly; and
(b) may not, under this section, authorise a beneficiary to
exercise any function as their agent (even if the
beneficiary is also a trustee); and
(c) may, under this section, authorise a person to exercise
functions as their agent even though the person is
also appointed to act as their nominee or custodian
(whether under section 33 or any other power).
(7) Subject to subsection (8), a person who is authorised under
this section to exercise a function is (whatever the provisions of the
agency) subject to any specific duties or restrictions attached to the
function.
(8) A person who is authorised under this section to exercise a
power which is subject to a requirement to obtain advice is not
subject to the requirement if the person is the kind of person from
whom it would have been proper for the trustees, in compliance
with the requirement, to obtain advice.
(9) Subject to other provisions of this section, the trustees may
authorise a person to exercise functions as their agent on such
provisions as to remuneration and other matters as they may
determine.
(10) The trustees may not authorise a person to exercise
functions as their agent on any of the provisions mentioned in
subsection (11) unless it is reasonably necessary for them to do so.
32 Trusts 2014, No. 8
(11) Other provisions referred to in subsection (9) are:
(a) a provision permitting the agent to appoint a substitute;
(b) a provision restricting the liability of the agent or his
substitute to the trustees or any beneficiary;
(c) a provision permitting the agent to act in circumstances
capable of giving rise to a conflict of interest.
(12) The trustees may not authorise a person to exercise any of
their asset management functions as their agent except by an
agreement which is in or evidenced in writing.
(13) The trustees may not authorise a person to exercise any of
their asset management functions as their agent unless:
(a) they have prepared a policy statement; and
(b) the agreement under which the agent is to act includes a
term to the effect that he or she will secure
compliance with the policy statement, or, if the
policy statement is revised or replaced under section
35, the revised or replacement policy statement.
(14) The trustees must formulate any guidance given in the
policy statement with a view to ensuring that their asset
management functions will be exercised in the best interests of the
trust.
33. Nominees and custodians-(1) Subject to sections 32 to 39,
the trustees of a Samoan trust may:
(a) in writing, appoint a person to act as their nominee for
all or part of the trust property as they determine;
and
(b) take any necessary steps to secure that those assets are
vested in a person so appointed.
(2) This section does not apply to any trust having a custodian
trustee or in relation to any assets vested in the Public Trustee.
(3) Subject to sections 30 and 31, the trustees of a trust may
appoint a person to act as custodian in relation to all or part of the
trust property as they may determine.
(4) The appointment of a custodian under this section does not
apply to any trust having a custodian trustee or in relation to any
assets vested in the Public Trustee.
2014, No. 8 Trusts 33
(5) Subject to the trust, if the trustees retain or invest in
securities payable to bearer they must appoint a person to act as a
custodian of the securities.
(6) A person must not be appointed as a nominee or a custodian
under this section unless the person satisfies one of the following
conditions:
(a) the person carries on a business which consists of or
includes acting as a nominee or custodian; or
(b) the person is a body corporate which is controlled by
the trustees.
(7) Subject to subsection (6), the person whom the trustees may
appoint as a nominee or custodian includes:
(a) one (1) of their number, if that one (1) is a trust
corporation; or
(b) two (2) (or more) of their number, if they are to act as
joint nominees or joint custodians.
(8) The trustees may under this section appoint a person to act
as their:
(a) nominee even though the person is also -
(i) appointed to act as their custodian; or
(ii) authorised to exercise functions as their
agent; or
(b) custodian even though the person is also -
(i) appointed to act as their nominee; or
(ii) authorised to exercise functions as their
agent.
34. Terms of appointment of nominees and custodians-
(1) Subject to subsection (2) and section 40, the trustees may under
section 33 appoint a person to act as a nominee or custodian on
terms, including remuneration and other matters as the trustees
may determine.
(2) The trustees may not, under section 33(1), (2), (3) and (8),
appoint a person to act as a nominee or custodian on any of the
following terms unless it is reasonably necessary for them to do so:
(a) to permit the nominee or custodian to appoint a
substitute;
34 Trusts 2014, No. 8
(b) to restrict the liability of the nominee or custodian or his
or her substitute to the trustees or to any
beneficiary;
(c) to permit the nominee or custodian to act in
circumstances capable of giving rise to a conflict of
interest.
35. Review of agents, nominees and custodians and liability
for the appointment of them-(1) Subsections (4) to (9) apply if
the trustees have, under section 32 or 33:
(a) authorised a person to exercise functions as their agent;
or
(b) appointed a person to act as a nominee or custodian.
(2) Subject to subsection (3), subsections (4) to (9) also apply if
the trustees have, under any power conferred on them by the trust
instrument or by any enactment:
(a) authorised a person to exercise functions as their agent;
or
(b) appointed a person to act as a nominee or custodian.
(3) Subsections (4) to (9) do not apply if they are inconsistent
with the trust instrument or any other enactment.
(4) While the agent, nominee or custodian continues to act for
the trust, the trustees:
(a) must keep under review the arrangements under which
the agent, nominee or custodian acts and how those
arrangements are being put into effect; and
(b) if circumstances make it appropriate to do so, must
consider whether there is a need to exercise any
power of intervention that they have; and
(c) if they consider that there is a need to exercise such a
power, must do so.
(5) If the agent has been authorised to exercise asset
management functions, the duty under subsection (4) includes, in
particular:
(a) a duty to consider whether there is any need to revise or
replace the policy statement made for the purposes
of section 32(13); and
(b) if they consider that there is a need to revise or replace
the policy statement, a duty to do so; and
2014, No. 8 Trusts 35
(c) a duty to assess whether the policy statement (as it has
effect for the time being) is being complied with.
(6) Section 32(13) applies to the revision or replacement of a
policy statement under this section as it applies to the making of a
policy statement under that section.
(7) In this section, “power of intervention” includes:
(a) a power to give directions to the agent, nominee or
custodian; and
(b) a power to revoke the authorisation or appointment.
(8) A trustee is not liable for any act or default of the agent,
nominee or custodian unless the trustee has failed to comply with
the duty of care applicable to the trustee:
(a) when entering into the arrangements under which the
person acts as agent, nominee or custodian; or
(b) when carrying out the trustee’s duties under subsections
(4) to (7).
(9) If a trustee has agreed to a term under which the agent,
nominee or custodian is permitted to appoint a substitute, the
trustee is not liable for any act or default of the substitute unless
the trustee has failed to comply with the duty of care applicable to
him or her, under paragraph 2 of the Schedule:
(a) when agreeing to that term; or
(b) when carrying out the trustee’s duties under subsections
(4) to (7) in so far as those duties relate to the use of
a substitute.
36. Effect of trustees exceeding their powers - A failure by
the trustees to act within the limits of the powers conferred by
sections 32 to 39:
(a) in authorising a person to exercise a trustee’s function
as an agent; or
(b) in appointing a person to act as a nominee or custodian,
does not invalidate the authorisation or appointment.
37. Sole trustees-(1) Subject to subsection (2), sections 32 to
39 apply to a trust having a sole trustee as they apply to other trusts
(and references in sections 32 to 39 to trustees (except in sections
32(5), 32(6)(b) and 33(7)) are to be read accordingly).
36 Trusts 2014, No. 8
(2) Section 33(5) does not impose a duty on a sole trustee if
that trustee is a trust corporation.
38. Restriction or exclusion of the powers conferred by
sections 32 to 36 and by sections 40 to 42 - The powers conferred
by sections 32 to 36 and by sections 40 to 42 are:
(a) in addition to powers conferred on trustees otherwise
than by this Act; but
(b) subject to any restriction or exclusion imposed by the
trust instrument or any other enactment.
39. Existing trusts - Sections 32 to 42 apply to trusts whether
created before or after its commencement.
40. Trustees’ remuneration and expenses-(1) Except to the
extent (if any) to which the trust instrument makes inconsistent
provision, subsections (2) to (4) apply to a trustee if:
(a) there is a provision in the trust instrument entitling the
trustee to receive payment out of trust funds in
respect of services provided by him or her to or on
behalf of the trust; and
(b) the trustee is a trust corporation or is acting in a
professional capacity.
(2) The trustee is to be treated as entitled under the trust
instrument to receive payment for services even if they are services
which are capable of being provided by a lay trustee.
(3) Subsection (1)(b) applies to a trustee of a charitable trust
who is not a trust corporation only:
(a) if the trustee is not a sole trustee; and
(b) to the extent that a majority of the other trustees have
agreed that it should apply to that trustee.
(4) For this section, a trustee acts in a professional capacity if
the trustee acts in the course of a profession or business which
consists of or includes the provision of services in connection with:
(a) the management or administration of trusts generally or
a particular kind of trust; or
(b) any particular aspect of the management or
administration of trusts generally or a particular
kind of trust,
2014, No. 8 Trusts 37
and the services the trustee provides to or on behalf of the trust fall
within that description.
(5) For this section, a person acts as a lay trustee if the trustee:
(a) is not a trust corporation; and
(b) does not act in a professional capacity.
(6) Subject to subsection (9), a trustee of a trust corporation,
other than a trustee of a charitable trust, is entitled to reasonable
remuneration out of the trust funds for any services that the trust
corporation provides to or on behalf of the trust.
(7) A trustee, other than a trust corporation, a trustee of a
charitable trust or a sole trustee, who acts in a professional capacity
is entitled to receive reasonable remuneration out of the trust funds
for any services that the trustee provides to or on behalf of the trust
if each of the other trustees has agreed in writing that the trustee be
remunerated for the services.
(8) A trustee is entitled to remuneration under this section even
if the services in question are capable of being provided by a lay
trustee.
(9) A trustee is not entitled to remuneration under this section
if any provision about the trustee’s entitlement to remuneration has
been made under the trust instrument or any other enactment.
(10) This section applies to a trustee authorised under sections
32 to 39 or the trust instrument:
(a) to exercise functions as an agent of the trustees; or
(b) to act as a nominee or custodian,
as it applies to any other trustee.
(11) A trustee:
(a) is entitled to be reimbursed from the trust funds; or
(b) may pay out of the trust funds,
expenses properly incurred by the trustee when acting on behalf of
the trust.
41. Remuneration and expenses of agents, nominees and
custodians-(1) This section applies, if under sections 32 to 39, any
other enactment or the trust instrument, a person, other than a
trustee has been:
(a) authorised to exercise functions as an agent of the
trustees; or
(b) appointed to act as a nominee or custodian.
38 Trusts 2014, No. 8
(2) The trustees may remunerate the agent, nominee or
custodian out of the trust funds for services if:
(a) he or she is engaged on provisions entitling him or her
to be remunerated for those services; and
(b) the amount does not exceed any remuneration as is
reasonable in the circumstances for the services
provided to or on behalf of that trust.
(3) The trustees may reimburse the agent, nominee or custodian
out of the trust funds for any expenses properly incurred by him or
her in exercising functions as an agent, nominee or custodian.
(4) Remuneration and expenses of agents, nominees and
custodians applies to services provided to or on behalf of trusts
whenever created and to expenses incurred on or after the
commencement of trusts whenever created.
42. Insurance-(1) A trustee may:
(a) insure any property which is subject to the trust against
risks of loss or damage due to any event; and
(b) pay the premiums out of the trust funds.
(2) For property held on a bare trust, the power to insure is
subject to any direction given by the beneficiary or each of the
beneficiaries:
(a) that any property specified in the direction is not to be
insured; or
(b) that any property specified in the direction is not to be
insured except on any specified conditions.
(3) Property is held on a bare trust if it is held on trust for:
(a) a beneficiary who is of full age and capacity and
absolutely entitled to the property subject to the
trust; or
(b) beneficiaries each of whom is of full age and capacity
and who (taken together) are absolutely entitled to
the property subject to the trust.
(4) If a direction under subsection (2) is given, the power to
insure, so far as it is subject to the direction, ceases to be a
delegable function for the purposes of section 32(1) to (4).
(5) In this section, “trust funds” means any income or capital
funds of the trust.
2014, No. 8 Trusts 39
43. Letters or memorandum of wishes-(1) The settlor, a
beneficiary, whether for himself or herself or acting for a class of
persons of which he or she is a member, and a protector, for all or
any one (1) or more of the beneficiaries, may alone or separately
give to the trustee a letter of his or her wishes or the trustee may
prepare a memorandum of the wishes of any of them with regard to
the exercise of any functions or powers conferred on the trustee by
the trust.
(2) If:
(a) a letter of wishes is given to the trustee of a trust; or
(b) a memorandum of wishes is given to or prepared by the
trustee of a trust,
the trustee may have regard to that letter or memorandum in
exercising any functions or powers conferred on the trustee by the
trust, but is not be accountable in any way for his or her failure or
refusal to have regard to that letter or memorandum.
(3) A fiduciary duty or obligation is not imposed on a trustee
merely by the giving to the trustee of a letter or memorandum of
wishes or the preparation by the trustee of a memorandum of
wishes.
44. Corporate trustee may act by resolution - A corporate
trustee may:
(a) act in connection with a trust by a resolution of the
corporate trustee or of its board of directors or other
governing body; or
(b) by such a resolution appoint an officer or employee, or
a committee of officers or employees or both, to act
on its behalf in connection with the trust.
PART 6
RESERVED POWERS
45. Reserved powers to a settlor-(1) The validity of a trust is
not affected by the matters set out in this section provided that:
(a) the trust is not a sham; or
(b) there is such an excessive reserve of powers to the
settlor that the role of the trustee and the nature of
the trust is compromised.
40 Trusts 2014, No. 8
(2) The settlor may reserve to himself or herself at the time of
the creation of the trust any beneficial interest in or rights over the
property which is to become trust property.
(3) Subject to subsection (1), the settlor may reserve to himself
or herself all or any of the following powers:
(a) to revoke, vary or amend the trust or powers arising
wholly or partly under it;
(b) to advance, appoint, pay or apply income or capital of
the trust property or to give directions for the
making of any advancement, appointment, payment
or application;
(c) to act as, or give binding directions as to the
appointment or removal of, a director or officer of
any corporation wholly or partly owned by the trust;
(d) to give binding directions to the trustee in connection
with the purchase, retention, sale, management,
lending, pledging or charging of the trust property
or the exercise of any powers or rights arising from
such property;
(e) to appoint or remove any trustee, enforcer, protector or
beneficiary;
(f) to appoint or remove an investment manager or
investment adviser;
(g) to change the proper law of the trust;
(h) to restrict the exercise of any powers or discretions of a
trustee by requiring that the powers or discretions
be exercisable only with the consent of the settlor or
any other person specified in the trust.
(4) Subject to subsection (1), if a power mentioned in
subsection (3) has been reserved or granted by the settlor, a trustee
who exercises the power is not acting in breach of trust and is not
liable for the consequences of so acting.
46. Reserved powers to a protector - A protector has the
powers of the protector under section 21.
47. Prescribed directions-(1) The power to give prescribed
directions may be reserved in a trust:
(a) to the settlor under section 45(3); or
2014, No. 8 Trusts 41
(b) to the protector; or
(c) to any person or persons (including the settlor and the
protector) whether exercisable alone, personally,
jointly by majority of persons or by reference to a
casting vote or to persons in order of priority.
(2) If a trust provides for the giving of prescribed directions,
the trustee is not:
(a) under any duty to preserve or enhance the value of the
trust property; or
(b) under any duty to diversify the investments of the trust
if prescribed directions provide otherwise; or
(c) liable to any loss in value to the trust property arising
directly or indirectly as a result of the giving of
prescribed directions.
48. Samoan International Special Trust Arrangement -
Sections 49 to 62 apply only if the trust expressly provides and
declares the trust as a Samoan International Special Trust
Arrangement (SISTA).
49. Interpretation-(1) In this Part, unless the context
otherwise requires:
“appointed enquirer”, for a trust, means a person who is
appointed by the trust to make intervention calls;
“business”, for a company, includes the holding of shares or
other assets and non-commercial activities;
“business risk”, for a company, includes:
(a) any risk attached to any business of the company, or any
connected company, when conducted in the manner
in which it has in fact been conducted; or
(b) any risk which can be expected to be attached to any
projected business of the company.
“company”, for designated shares, means a Samoan company
that has issued the designated shares;
“designated shares” means shares in a Samoan company for
which a valid direction has been given under section 51(1)
and is in effect;
42 Trusts 2014, No. 8
“designated trustee” means:
(a) a trust corporation;
(b) a private trust company exempt from requiring a licence
to carry on business as a trustee company under the
Law.
“disposal”, for designated shares, includes:
(a) the exercise of voting powers leading, or capable of
leading, to the liquidation of the company or the
cancellation of the shares or of any rights attached
to the shares; and
(b) the creation of any legal or equitable interest in the
shares.
“interested person”, for a trust, means:
(a) a beneficiary of the trust;
(b) an object of a discretionary trust over any of the capital
or income of the trust;
(c) a parent or legal guardian of any minor falling within
paragraph (a) or (b);
(d) an enforcer;
(e) a protector, unless the trust provides otherwise;
(f) an appointed enquirer;
(g) where any of the purposes of the trust are exclusively
charitable, the Attorney General; and
(h) any beneficiary or other person so designated under the
provisions of the trust.
“intervention call” means a call by an interested person under
section 55(1);
“legal guardian”, for a minor, means a person legally
recognised as the guardian in any jurisdiction with which
the minor has a substantial connection;
“rules of the office of director” means the current rules referred
to in section 54;
“trust”, for designated shares, means the trust on which the
designated shares are held;
“trust fund”, for a trust, means property for the time being
subject to the trust.
2014, No. 8 Trusts 43
(2) In this section:
(a) a reference to voting powers for shares includes a
reference to powers to direct the voting of shares
held by a nominee;
(b) for a trust, a reference to a protector includes a person
or a committee whose consent is required for the
exercise of any powers;
(c) a company is taken to be connected with another
corporation if -
(i) that other corporation holds, directly or
through a nominee, shares in that other
corporation; or
(ii) it is controlled directly or indirectly by
that other corporation; or
(iii) it is connected with a corporation which
is itself connected with that other corporation;
(d) a ground for complaint concerning the conduct of a
company’s affairs is permitted if it is specified as
such in the trust instrument, and the expression
“permitted ground for complaint” is to be construed
accordingly.
50. Primary purpose of section 51 - The primary purpose of
section 51 is to enable a trust of company shares to be established
under which:
(a) the shares may be retained indefinitely; and
(b) the management of the company may be carried out by
its directors without any power of intervention
being exercised by the trustee.
51. Designated shares-(1) If a trust fulfils the conditions in
subsection (7), the trust may direct that this section applies:
(a) to all shares comprised in the trust fund; or
(b) to any shares comprised in the trust fund as may be
specified in the direction.
(2) In subsection (1), “shares comprised in the trust fund”,
includes shares:
44 Trusts 2014, No. 8
(a) becoming so comprised at any time after the creation of
the trust, whether added to the trust fund by way of
additional settlement by the original settlor or any
other person;
(b) acquired on a new issue by the company or in the
course of management or administration of the trust
fund; or
(c) acquired in any other manner.
(3) A direction under subsection (1):
(a) must not be made for shares added to the trust fund by a
trustee of another trust in the exercise of a power in
that other trust unless the power expressly permits
this or the other trust is a Samoan trust and the
trustee of the other trust, or one of the trustees of the
other trust, is a designated trustee; and
(b) may -
(i) identify the shares to which the direction
relates either specifically or by any general
description;
(ii) specify a date or event upon the
occurrence of, or circumstances in, which the
direction will take, or will cease to have effect.
(4) The event referred to in subsection (3)(b)(ii) may include
the service on the trustee of the trust, or on any of the trustees of
the trust, if more than one (1), of a written direction (“a trigger
direction”) made by such person or committee as is specified in the
trust to the effect that the direction under subsection (1) is
immediately to take effect or is immediately to cease to have
effect, as the case may be.
(5) The person or committee referred to in subsection (4) may
not be or include the trustee of the trust, or any trustee of the trust
if more than one (1).
(6) The provisions of the trust shall determine whether or not
the decision to make, or refrain from making, the trigger direction
is fiduciary and, in a case where the terms of the trust do not
expressly state otherwise, there shall be a presumption that the
decision is fiduciary.
2014, No. 8 Trusts 45
(7) The conditions referred to in subsection (1) are as follows:
(a) the trust is created by or on a written testamentary or
inter vivos instrument;
(b) at least one (1) trustee of the trust is a designated trustee
at the time at which the direction under subsection
(1) takes effect;
(c) the provisions of the trust require that, for so long as the
direction under subsection (1) has effect, at least
one (1) trustee of the trust is a designated trustee;
and
(d) the trust is not created in the exercise of a power
conferred by another trust unless the power
expressly permits this or at the time the power is
exercised, the other trust is a Samoan trust and the
trustee of the other trust, or one (1) of the trustees of
the other trust is a designated trustee.
(8) Subject to subsection (9), if a person is a settlor of a trust of
designated shares and additional property is settled on the trust by
another person, the former person must be considered for the
purposes of this section as the settlor for the trust of the additional
property.
(9) If the trust instrument provides that subsection (8) does not
apply, then, for a trust comprising property which has been
provided by more than one (1) person, this Act applies as if each
person had created a separate trust for the property which he or she
has provided.
52. Trustee’s duties in relation to designated shares-(1)
Subject to section 56, designated shares must be held by the trustee
on trust to retain the designated shares.
(2) The trustee’s duty to retain designated shares has
precedence over any duty to preserve or enhance the value of the
trust fund.
(3) Without affecting subsection (2), the trustee is not
accountable for losses arising directly or indirectly from holding
designated shares, including losses arising from any of the
following circumstances:
46 Trusts 2014, No. 8
(a) the absence or inadequacy of financial return from any
designated shares;
(b) a decrease in value of any designated shares;
(c) any act or omission of the directors of the company,
regardless of whether it is made or carried out in
good faith;
(d) liquidation or receivership of the company;
(e) share market fluctuation;
(f) the loss of opportunity to make gains from reinvestment
of the proceeds of designated shares; or
(g) the liabilities and expenses of the company, including
directors’ remuneration and expenses.
(4) In subsection (3), “company” includes a corporation
connected to it.
53. Restrictions on trustee’s powers-(1) Subject to the trust
and sections 54 and 55, subsections (2) and (3) apply to a trustee of
designated shares.
(2) The power of voting or other powers for designated shares
must not be exercised by the trustee so as to interfere in the
management or conduct of any business of the company, and in
particular, the trustee:
(a) must leave the conduct of the business, and all decisions
as to the payment or non-payment of dividends, to
the directors of the company; and
(b) must not require the declaration or payment of any
dividend by the company or exercise any power the
trustee may have of compelling any declaration or
payment.
(3) A trustee of designated shares must not:
(a) instigate or support any action by the company against
any of its directors for breach of duty to the
company;
(b) procure the appointment or removal of any of the
directors;
(c) subject to section 56, wind-up the company; and
2014, No. 8 Trusts 47
(d) subject to subsections (1) and (2), apply to the Court for
any form of relief or remedy for the company.
(4) This section shall not apply to limit or restrict the exercise
by a trustee of that trustee’s rights, powers or entitlements under:
(a) the Law; or
(b) any of the provisions of the articles of association of a
company which enables shareholders of that
company to inspect, make copies of or take extracts
from accounts and records of the company or any
connected company.
54. Provisions relating to directors-(1) The trust instrument
may:
(a) contain rules for determining the manner in which the
power of voting and other powers attributable to
designated shares may be exercised concerning the
company by the trustee in relation to -
(i) the appointment of directors;
(ii) the removal of directors;
(iii) the remuneration of directors; or
(iv) any of the matters referred to in
subsection (2); and
(b) provide provisions to amend the rules.
(2) The rules for the office of director may:
(a) require the trustee to ensure that a particular person
holds or retains office as a director;
(b) require any person to be appointed to the office of
director at a future date or upon the happening of a
future event;
(c) require the removal of a director in specified
circumstances;
(d) subject to the requirements of the rules the company
and any written law applicable to the company,
prescribe the minimum and maximum number of
directors to hold office at any time;
48 Trusts 2014, No. 8
(e) require the trustee, for the appointment and removal of
directors, to act generally or in any specified
circumstances on the decision of a third person or a
committee;
(f) provide for the conferral of fiduciary duties on a person
or a committee referred to in paragraph (e);
(g) provide for the establishment, continuance, and
procedures of a committee referred to in paragraph
(e); or
(h) provide for the remuneration of the person or committee
referred to in paragraph (e) to be paid from the trust
fund of the trust.
(3) Subject to subsection (9) and section 55, the trustee must, at
all times, use its power of voting and other powers, so far as those
powers allow, to ensure:
(a) that the company has at least the minimum number of
directors to meet the requirements of its rules and of
the Companies Act 2001; and
(b) that, except in an exempted case, the identity of the
directors of the company conforms with the office
of director rules, if any, for the time being
applicable.
(4) A person becoming or remaining a director of the company,
whether in consequence of the rules of the office of director or
otherwise, does not, in the capacity of director:
(a) owe fiduciary or other obligations under the trust; or
(b) have any fiduciary or other obligations to the trustee,
but nothing in this section affects any duty which that person owes,
as director, to the company.
(5) A person for whose appointment the rules of the office of
director may provide includes:
(a) a settlor or protector of the trust; and
(b) both ascertained and ascertainable persons.
(6) A trustee is not liable for securing, sanctioning or not
opposing the appointment of a director if that appointment
complies with the rules of the office of director.
2014, No. 8 Trusts 49
(7) If there are no rules of the office of director, and in an
exempted case, a trustee is not liable for securing, sanctioning, or
not opposing, the appointment of a director of the trustee’s own
selection, if:
(a) the trustee concludes in good faith that the appointment
in question is consistent with the wishes of the
settlor; and
(b) the selection is not motivated by a desire on the part of
the trustee to reduce business risk, except to the
extent, if at all, that the trustee in good faith
concludes that a reduction would be consistent with
the wishes of the settlor.
(8) In subsection (7), an exempted case is a case in which
either:
(a) the rules of the office of director make no provision in
that case; or
(b) the rules make provision but the trustee concludes in
good faith that it would be impossible, unlawful,
impracticable, or plainly inconsistent with the
wishes of the settlor, to ensure compliance with the
rules in that case.
(9) Subject to any express provision to the contrary in the
provisions of the trust, a trustee has no duty to:
(a) act under subsection (3) unless it receives actual notice
that circumstances requiring the action have arisen;
or
(b) enquire as to whether circumstances requiring action
under subsection (3) exist.
(10) If, on any question concerning the appointment or removal
of a director, a trustee makes an application to the Court under
section 81, the Court, in giving its directions, must not seek to
reduce business risk, except to the extent, if at all, that the Court
concludes that a reduction would be consistent with the wishes of
the settlor.
55. Intervention by trustee in management in prescribed
circumstances-(1) For a trust of designated shares, if an interested
person has a complaint concerning the conduct of the company’s
affairs, and the ground for that complaint is permitted, the
50 Trusts 2014, No. 8
person may, in writing, call upon the trustee to intervene in the
affairs of the company to deal with the complaint.
(2) A trust instrument may specify one (1) or more permitted
grounds for complaint.
(3) When an intervention call is received, the trustee must, if
satisfied that the complaint is substantiated, take such action, if
any, as the trustee considers appropriate to deal with the complaint
in the interests of the trust and such actions may include the
following:
(a) making or procuring changes in the directorship of the
company under its rules and the Companies Act
2001, but otherwise on any provisions as the trustee
thinks fit, but in making, procuring or maintaining
any change, the trustee may disregard section
54(3)(b) if and in so far as, in the opinion of the
trustee, it is expedient to do so for the purposes of
dealing with the complaint; or
(b) procuring action by the company to recover any losses
caused by the conduct giving rise to the complaint;
or
(c) seeking such advice on the complaint and the manner of
addressing it as the trustee considers appropriate.
(4) In considering and taking action under subsection (3), the
trustee must:
(a) have regard to -
(i) any wishes of the settlor; and
(ii) the efficient functioning of the company;
and
(b) disregard business risk, if -
(i) the ground for complaint consists of or
arises from any disagreement among the
directors as to business risk; or
(ii) any wishes of the settlor require business
risk to be considered.
(5) After acting under subsection (3), or after deciding not to
act, the trustee’s obligation to intervene ends unless another
intervention call is made.
(6) It is a ground for declining to act on an intervention call if,
apart from any other reason for declining:
2014, No. 8 Trusts 51
(a) the call is made on substantially similar ground that has
been made previously; and
(b) there appears to the trustee to be no reason to alter, or
act further on, the decision previously taken by it.
(7) If a trust instrument specifies one (1) or more permitted
grounds for complaint, the following provisions apply:
(a) an interested person may require the trustee to provide
any information concerning the affairs of the
company and any connected company as is
reasonably required for that person to consider
whether an intervention call is necessary, and the
trustee must use all reasonable endeavours to
provide the information and may, if considered
necessary for this purpose, procure the replacement
of any of the directors with the trustee’s own
representative;
(b) if there is an appointed enquirer, the enquirer has a duty
to -
(i) make reasonable enquiries as to whether
there is a permitted ground for complaint as
often as appears appropriate in the
circumstances and not less than once in 12
months; and
(ii) make an intervention call under this
section, and provide the trustee with evidence of
the relevant ground for complaint, whenever it
appears to the enquirer to be appropriate;
(c) if there is no appointed enquirer, the trustee must use all
reasonable endeavours to ensure that at all times at
least one (1) interested person of full capacity is
given the following documents and information
concerning the trust, but without affecting any right
of the interested person to documents and
information apart from this paragraph -
(i) a copy of the trust instrument and other
trust documents;
(ii) the name and address of the trustee;
(iii) the name, registered office and principal
place of business of the company;
52 Trusts 2014, No. 8
(iv) the names and addresses of all directors
of the company; and
(v) the nature of the current activities of the
company.
(8) Where there is an appointed enquirer, the trustee shall use
all reasonable endeavours to ensure that at all times the appointed
enquirer is given the documents and information concerning the
trust which are referred to in subsection (7)(c)(i) to (v).
(9) If practicable, a person to whom information is given under
subsection (7)(c) must be a person who, in the reasonable opinion
of the trustee, has acquired, or is likely to acquire, by appointment
or otherwise, a substantial equitable interest in some or all of the
designated shares or their proceeds or is the parent or legal
guardian of such a person or who is, in the case of a purpose trust,
the enforcer.
(10) All expenses incurred in dealing with an intervention call
or considering the complaint on which it is based, including trustee
remuneration if applicable and the cost of any advice:
(a) are payable out of the trust fund and its income in such
proportions as the trustee decides; and
(b) if there is any deficiency in liquid funds, the trustee
may -
(i) take such steps as are available to the
trustee under the rules of the company and the
Companies Act 2001, to make up the shortfall
out of dividends from the company; and
(ii) if considered necessary for this purpose,
procure the replacement of any of the directors
with the trustee’s own representative.
(11) The trustee must, if practicable, procure the removal from
office of a director:
(a) appointed for the purpose under subsection (7)(a) or
(10)(b)(ii) when the purpose for which the director
was appointed is achieved; or
(b) if removal is appropriate for the purpose of any action
decided upon by the trustee pursuant to subsection
(3), or subject to that action, for the purpose of
complying with the rules of the office of director.
2014, No. 8 Trusts 53
(12) The provisions of the trust may provide for the
remuneration of the appointed enquirer to be paid from the trust
fund of the trust.
56. Power to dispose of designated shares-(1) Subject to
subsection (2) and to the trust instrument, the trustee may, in the
management or administration of the trust fund, sell or otherwise
dispose of designated shares, but the existence of this power:
(a) does not carry an implied duty to exercise the power for
the purpose of preserving or enhancing the value of
the property of the trust or to consider its exercise
for that purpose; and
(b) does not render the trustee liable, for losses arising in
consequence of not exercising the power in section
55(3).
(2) Subject to section 58, the trustee must not, unless the trust
instrument otherwise provides, sell or dispose of the designated
shares in the management or administration of the trust fund
without:
(a) the consent of the directors of the company or of a
majority of them if more than one (1); and
(b) such consents, if any, are made requisite by the trust
instrument.
(3) The power to sell or dispose of the designated shares under
subsection (1) must be made in any manner, and upon any terms
and conditions, as the trustee, acting in its fiduciary capacity,
thinks fit.
(4) Section 81 does not apply to the trust to the extent that the
section permits the Court to confer upon the trustee any power of
sale or other disposal.
57. Enforcement-(1) If, for a trust of designated shares, there
is a breach of duty or obligation by a trustee, a person may, subject
to the trust, apply to the Court for relief.
(2) If the Court is satisfied that the application under subsection
(1) is well founded, it may grant relief by:
(a) making any order it considers appropriate to attain, as
nearly as may be, the outcome that the Court
considers would have been, or would most likely
54 Trusts 2014, No. 8
have been, attained for the trust, the company, its
directors and generally if the breach had not
occurred; and
(b) making such, if any, supplementary or incidental order
as the Court considers, in the circumstances of the
case, reasonably required having regard to the
primary purpose of section 51 set out in section 50,
but no order is to be made under this section to affect any interest
in property, which was acquired from the trustee in good faith, for
value and without actual or constructive notice of the trust, or from
the company in good faith and for full consideration, or to affect
any interest deriving from that interest.
(3) In subsection (1), “person” means:
(a) an interested person;
(b) a director of the company; or
(c) a person who, under the applicable office of director
rules, would be a director if the trustee had
complied with its obligations under section 54.
(4) Without limiting subsections (1) to (3), but subject to
subsection (5), if, for a trust, there is a breach of a duty
or obligation imposed by this Act on its trustee, the breach is,
actionable in civil proceedings as, a breach of the trust, which
includes references to a prospective breach.
(5) If civil proceedings are instituted for a breach of a duty or
obligation, the Court must, in granting any remedy, take into
account any relief granted or available for the breach on an
application under subsection (1).
(6) Subject to the trust and sections 54 and 55, if designated
shares are held on trust, the act or omission of a director of the
company is not a ground for a person to seek intervention by the
Court in the affairs of the trust.
58. Power of Court to order disposal-(1) If it appears to the
Court that the retention of the designated shares is no longer
compatible with the wishes of the settlor, the Court may, on the
application of any interested person, order or authorise a sale or
other disposal of the designated shares, and a sale or other disposal
so ordered or authorised does not require any consent referred to in
section 56(2).
2014, No. 8 Trusts 55
(2) In making an order or authorisation under subsection (1),
the Court may impose such, if any, terms and conditions for the
sale or other disposal as it thinks fit.
59. Beneficiaries not entitled-(1) Despite any rule of equity or
practice of the Court and except as provided in subsection (2):
(a) neither a beneficiary who is solely interested in any
designated shares; nor
(b) all the beneficiaries who together are the persons
interested in any designated shares,
shall be entitled, although in existence and ascertained and of full
capacity, to call for or direct a transfer of those shares or to
terminate or modify the trust relating to the shares, if and so far as
that entitlement is, without offending any rule of perpetuity or
remoteness, excluded by the trust instrument.
(2) The exclusion of entitlement in subsection (1) has no effect,
or does not continue to have effect, after the expiration of 20 years,
or such shorter period as may be specified in the trust, from the
creation of the trust.
(3) If a person who receives designated shares, or an interest in
the designated shares, is a person who, by virtue of the exclusion
of entitlement, has no present right to receive the shares or that
interest, that person, without affecting section 58(1), holds those
shares or that interest on trust to transfer the shares or that interest
to the trustee, and the Court must order that person to do so on the
application by the trustee or any person defined in section 57(3).
(4) During the exclusion of entitlement, section 45 does not
apply to the trust.
60. Disqualification of trustee as a director - A trustee of
designated shares is disqualified from being, or becoming, a
director of the company.
61. Ascertaining wishes of settlor-(1) This section applies if it
is necessary under this Act for the Court or a trustee to ascertain
the wishes of the settlor.
(2) If the settlor is alive, or in existence, the settlor must, if
possible and practicable, be consulted as to the settlor’s wishes.
56 Trusts 2014, No. 8
(3) If the settlor is dead, or no longer in existence, or it is not
possible or practicable to consult the settlor, the settlor’s wishes
should be taken to be:
(a) the wishes which the settlor has most recently
communicated to the trustee; or
(b) if no wishes have been communicated, the wishes as the
Court, or the trustee in good faith, believes most
likely to have been the settlor’s wishes from the
evidence available for the wishes.
62. Limitation of trustee’s duties-(1) A trustee of designated
shares has no fiduciary responsibility or duty of care for the
property of, or the conduct of the affairs of, the company, except
when acting, or required to act, on an intervention call.
(2) Without prejudice to the generality of subsection (1), a
trustee of designated shares:
(a) is not required to make any enquiry as to whether any
facts exist which would, or may, whether with or
without any other information, form the basis of an
intervention call;
(b) is not obliged to inform any interested person of any
fact of which it becomes aware, or which it
suspects, concerning the property of the company or
the conduct of its affairs; and
(c) does not incur liability as accessory to a director’s
breach of duty by reason of any omission on the
part of the trustee to take action if the trustee is
aware, or suspects, that there has been or will be a
breach, or by reason of any act or omission in
complying with section 54.
(3) A trust of designated shares may, by the provisions of the
trust, exclude or modify any of the provisions of subsections (1)
and (2) in relation to those shares.
(4) An exclusion or a modification made under subsection (3)
has effect only if it expressly indicates that it is made pursuant to
this section.
2014, No. 8 Trusts 57
63. Combination of a trust with a limited partnership - If
trust property of a Samoan trust is the beneficial entitlement to the
interest of a limited partner in a limited partnership, whether
governed by the Law or by foreign law:
(a) the trustee has no duty -
(i) to diversify the interest; or
(ii) to consider the investments or business
of the limited partnership; and
(b) the powers of the trustee are subservient to those of the
general partner of the limited partnership; and
(c) the trustee is not liable for any loss directly or indirectly
caused to the trust property by reason of the
management and control of the limited partnership
by the general partner of that limited partnership.
PART 7
SPECIAL TYPES OF TRUST
64. Protective trust-(1) A trust may make the interest of the
beneficiary liable to termination.
(2) Without limiting subsection (1), a trust may make the
interest of a beneficiary in the income or capital of the trust
property subject to:
(a) a restriction on alienation or disposal; or
(b) a diminution or termination in the event of the
beneficiary becoming bankrupt or any of his or her
property becoming liable to sequestration for the
benefit of his or her creditors.
(3) A trust under which the interest of a beneficiary is subject
to restriction, diminution or termination under subsection (2) is a
protective trust.
(4) A provision of a trust requiring the interest of a beneficiary
in trust property to be held upon a protective trust is to be
construed as a requirement that the interest of the beneficiary be
subject to any restriction, diminution or termination under
subsection (2).
58 Trusts 2014, No. 8
65. Charitable trust-(1) A trust is regarded as a trust for
charitable purposes under this Act if the trust is made for any one
(1) or more of the following purposes and where the fulfilment of
any of the purposes is for the benefit of the community or a
substantial section of the community having regard to the type and
nature of the purpose or purposes:
(a) the relief or eradication of poverty;
(b) the advancement of education;
(c) the promotion of art, science and religion;
(d) the protection of the environment;
(e) the advancement of human rights and fundamental
freedom; or
(f) any other purposes which are beneficial to the
community.
(2) A purpose may be regarded as charitable whether it is to be
carried out in Samoa or another country and whether it is
beneficial to the community in Samoa or another country.
(3) If a charitable trust does not indicate a particular charitable
purpose or beneficiary or a means by which a particular charitable
purpose or beneficiary may be selected, the Court may select one
(1) or more charitable purposes or beneficiaries pursuant to the
settlor’s intention to the extent it can be ascertained.
(4) Subject to subsection (5), if a particular charitable purpose
becomes unlawful, impracticable, impossible to achieve, contrary
to public policy in Samoa, or obsolete in that, by reason of changed
circumstances, it fails to achieve the purpose of the trust:
(a) the trust does not fail, in whole or in part;
(b) the trust property does not revert to the settlor or the
settlor’s successors in interest; and
(c) the Court may apply cy-pres to vary or terminate the
trust by directing that the trust property be applied
or distributed, in whole or in part, in a manner
consistent with the settlor’s intentions.
(5) A provision in a charitable trust that would result in
distribution of the trust property to a non-charitable beneficiary
prevails over the power of the Court under subsection (4) to apply
cy-pres to vary or terminate the trust only if, when the provision
takes effect, the trust property is to revert to the settlor and the
settlor is still living.
2014, No. 8 Trusts 59
(6) A charitable trust may be enforced by the settlor of the
trust, if still living, maintaining a proceeding to enforce such trust
or by the Court.
66. Purpose trust-(1) Subject to the provisions of section 22
and despite any law to the contrary, a trust may be created or
established by deed under this Act for any particular purpose,
whether charitable or not provided that:
(a) the purpose is possible and sufficiently certain to allow
the trust to be carried out; and
(b) the purpose is not contrary to public policy in Samoa or
contrary to the Law.
(2) Without limiting other provisions of this section and
provided that the purposes are lawful and not contrary to public
policy, the objects of a purpose trust may be:
(a) persons of any number;
(b) purposes of any number or kind; or
(c) both a person or persons and a purpose or purposes.
(3) Despite subsection (6), if the objects of a purpose trust
include a person, that person is entitled to enforce the purpose
trust, as regard that person and not a purpose.
(4) Any instrument creating or evidencing a purpose trust may:
(a) specify an event or date upon the occurrence of which
the trust ceases to be a purpose trust;
(b) provide for the disposition of the property of the trust
when the trust ceases to be a purpose trust; and
(c) provide that, for so long as the trust is a purpose trust,
the trustees do not owe any duty -
(i) to a person entitled to the property when
the trust ceases to be a purpose trust; or
(ii) for any purpose for which the property is
then to be applied.
(5) The terms of a trust for non-charitable purposes may
provide for the addition, variation or removal of a non-charitable
purpose of the purpose trust or for the exclusion of a non-
charitable purpose from the objects of the purpose trust.
(6) A purpose trust must have an enforcer and section 22
applies to all purpose trusts.
60 Trusts 2014, No. 8
PART 8
LIABILTIES AND REMEDIES
67. Trustees-(1) Subject to this Act and the trust, a trustee is
liable for a breach of trust committed by the trustee or in which the
trustee has concurred.
(2) A trustee who is liable for a breach of a trust is liable for:
(a) the loss or depreciation in value of the trust property
resulting from the breach; and
(b) the profit, if any, which would have accrued to the trust
property if there had been no breach.
(3) If there are two (2) or more breaches of a trust, a trustee
must not set-off a gain from one (1) breach of trust against the loss
resulting from another breach of trust.
(4) A trustee is not liable for a breach of trust committed:
(a) prior to the trustee’s appointment, if the breach of trust
was committed by another person;
(b) by a co-trustee unless -
(i) the trustee becomes aware or ought to
have become aware of the commission of the
breach or of the intention of his or her co-trustee
to commit a breach of trust; and
(ii) the trustee actively conceals the breach
or intention or fails within a reasonable time to
take proper steps to protect or restore the trust
property or prevent the breach.
(5) If two (2) or more trustees are liable for a breach of trust,
the trustees are jointly and severally liable.
(6) A trustee who becomes aware of a breach of trust under
subsection (4)(b) must take all reasonable steps to have the breach
remedied.
68. Limitation on trustee’s liability - exculpation-(1)
Nothing in a Samoan trust relieves, releases, or exonerates a trustee
from liability for breach of trust arising from the trustee’s own
fraud, wilful misconduct or gross negligence.
(2) A term of a trust relieving a trustee of liability for breach of
trust is unenforceable to the extent that it:
2014, No. 8 Trusts 61
(a) relieves the trustee of liability for breach of trust
committed in bad faith or with reckless indifference
to the purposes of the trust or the interests of the
beneficiaries; or
(b) was inserted as the result of an abuse by the trustee of a
fiduciary or confidential relationship to the settlor.
(3) The Court may relieve a trustee wholly or partly of liability
for a breach of trust, whether committed before or after the
commencement of this Act, if 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; and
(ii) for omitting to obtain the directions of
the Court in the matter in which the breach
arose.
(4) If a trustee commits a breach of trust at the instigation or
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, impound all or part of the trustee’s interest by way of
indemnity to the trustee or a person claiming through the trustee.
69. Beneficiary’s consent, release or ratification-(1) A
beneficiary may, for a liability to him or her for a breach of trust
already committed, relieve a trustee of, or indemnify the trustee
against, the liability, if the beneficiary:
(a) has legal capacity;
(b) has full knowledge of all material facts; and
(c) has not been improperly induced by the trustee to give
the relief or indemnity.
(2) Subject to section 68(1), a trustee is not liable to a
beneficiary for breach of trust if the beneficiary:
(a) consented to the conduct constituting the breach;
(b) relieved the trustee from liability for the breach under
subsection (1); or
(c) ratified the transaction constituting the breach, unless -
(i) the consent, release or ratification by the
beneficiary was induced by improper conduct of
the trustee; or
62 Trusts 2014, No. 8
(ii) at the time of the consent, release or
ratification, the beneficiary does not know his or
her rights or the material facts of the breach.
70. Prevention of breach of trust - In order to prevent a
breach of trust, the Court may make any of the following orders:
(a) to compel the trustee to perform the trustee’s duties;
(b) to restrain the trustee from committing a breach of trust;
(c) to appoint a special fiduciary to take possession of the
trust property and administer the trust;
(d) to suspend the trustee; or
(e) to remove the trustee.
71. Remedies for breach of trust - In order to remedy a
breach of trust that has occurred, the Court may make any of the
following orders:
(a) to compel the trustee to perform the trustee’s duties;
(b) to compel the trustee to redress a breach of trust by
paying money, restoring property or other means;
(c) to order a trustee to account for the breach of trust;
(d) to appoint a special fiduciary to take possession of the
trust property and administer the trust;
(e) to suspend the trustee;
(f) to remove the trustee;
(g) to reduce or deny compensation to the trustee;
(h) subject to section 86, to invalidate an act of the trustee,
impose a lien or constructive trust on trust property,
or trace trust property wrongfully disposed of and
recover the property or its proceeds;
(i) to grant any other appropriate relief.
72. Damages in absence of breach of trust - Except as
expressly provided in the trust:
(a) a trustee is accountable to the trust for any profit made
by the trustee arising from the administration of the
trust, even if there is no breach of trust; and
2014, No. 8 Trusts 63
(b) if there is no breach of trust, a trustee is not liable for a
loss or depreciation in the value of trust property or
for not having made a profit.
73. Protector - Despite section 21(9), the following sections
apply to the liability of a protector:
(a) section 68(1) and (2) applies to a protector as it does to
a trustee;
(b) section 68(3) applies empowering the Court to relieve a
protector as it may relieve a trustee;
(c) section 68(4) applies if a protector commits a breach of
any fiduciary duty which the protector may owe to
any beneficiary as it does to a trustee who commits
a breach of trust;
(d) section 69(1) applies so that a beneficiary may relieve a
protector from breach of any fiduciary duty as it
applies to relieving a trustee from breach of trust;
(e) section 69(2) applies to a protector who commits a
breach of any fiduciary duty as it would to a trustee
who commits a breach of trust.
74. Enforcer - Despite section 22(4), section 73 applies to an
enforcer as if references in section 73 to a protector were
references to an enforcer.
PART 9
VARIATION, REVOCATION, FAILURE, TERMINATION,
MIGRATION
75. Variation and revocation-(1) A trust may expressly
provide that:
(a) its provisions are capable of variation; or
(b) the trust itself or a power exercisable under the trust is
revocable either in whole or in part.
(2) If a trust provides that it may be varied, the power to vary
does not affect the power of the Court under this Act to vary the
trust.
64 Trusts 2014, No. 8
(3) The variation or revocation of a trust or of a power under
the trust does not affect anything lawfully done by a trustee for the
trust prior to the trustee receiving a notice of the variation or
revocation.
(4) Subject to the trust, if a trust is revoked, either in whole or
in part, the trustee holds the trust property affected by the
revocation for the settlor absolutely or if the settlor is dead, for the
settlor’s personal representative or estate.
(5) The Court may vary a trust:
(a) even if unambiguous, to conform with the settlor’s
intention if it is provided by clear and convincing
evidence that both the settlor’s intent and the trust
were affected by a mistake of fact or law, whether
in expression or inducement;
(b) if, because of circumstances not anticipated by the
settlor, modification will further the purpose of the
trust; or
(c) if continuation of the trust on its existing provisions
would be impracticable or wasteful or impair the
trust’s administration.
(6) An application under subsection (5) may be made by the
settlor, the trustee, a beneficiary or the guardian or representative
of a beneficiary who is a minor, incapacitated, unascertained or
unborn or by a protector on behalf of any one (1) or more or all of
the beneficiaries.
(7) In this section, “settlor” means the particular person who
provided the property which is the subject of revocation.
76. Failure or lapse of interest-(1) Subject to a Samoan trust
and to any order of the Court, the trust property or interest under
the Samoan trust is held by the trustee in trust for the settlor
absolutely or, if the settlor is dead, for the settlor’s personal
representative or estate if:
(a) the interest in question lapses;
(b) the trust property is vested in a person otherwise than
for that person’s sole benefit but the trusts upon
which that person is to hold the property are not
declared or communicated to him or her;
2014, No. 8 Trusts 65
(c) there is no beneficiary and there is no person who can
become a beneficiary under the trust; or
(d) the trust terminates otherwise than under section 77.
(2) An application to the Court under this section may be made
by any of the persons stated in section 75(6).
(3) In this section, “settlor” means the particular person who
provided the trust property or the interest under the trust referred to
in subsection (1).
77. Termination - Without affecting the powers of the Court
under this Act, a trust terminates:
(a) if the trust is revoked or expires pursuant to its
provisions;
(b) if there is no beneficiary or person who can become a
beneficiary under the trust or if no purpose of the
trust remains to be achieved;
(c) if the purposes of the trust have become unlawful, or
impossible to achieve; or
(d) subject to section 59, despite the trust, upon consent of
all the beneficiaries in existence who have been
ascertained and none of whom is a minor or a
person under a legal disability.
78. Migration-(1) Subject to this Act, a trust established or
created under foreign law, may, if it is so authorised by such
foreign law, or the trust and its proper law, be enforceable and
recognised in Samoa as if it had been created under this Act.
(2) Subject to this Act and the trust and its proper law, a
Samoan trust validly created and recognised under this Act may be
transferred to and become a trust under foreign law.
(3) A Samoan trust which has been previously transferred to
Samoa under subsection (1) may be transferred to and under this
section become a trust under foreign law.
PART 10
FOREIGN TRUSTS
79. Foreign trusts-(1) Subject to subsection (2), a foreign trust
is governed by, and to be interpreted under, its proper law.
66 Trusts 2014, No. 8
(2) A foreign trust is unenforceable in Samoa if:
(a) it purports to do anything contrary to the Law;
(b) it confers or imposes any right or function the exercise
or discharge of which would be contrary to the
Law;
(c) the Court declares that it is immoral or contrary to the
public policy of Samoa.
PART 11
TRUST INFORMATION
80. Confidentiality and providing information-(1) Subject to
other provisions of this section, the trustee of a Samoan trust:
(a) must treat all documents and information whatsoever
concerning the trust as confidential; and
(b) must not, unless authorised by this section, be required
to produce or disclose to any person any documents
or information concerning such trust.
(2) A trustee must, on receipt of a request, provide accurate
information as to the state and amount of the trust property and the
administration of the trust:
(a) to the Court;
(b) to the settlor, the enforcer or the protector of the trust,
unless the trustee has reason to believe that such
person is making the request under duress; or
(c) if authorised under the trust -
(i) to any beneficiary having a vested
interest in the trust; or
(ii) to any beneficiary specified under the
trust to be a recipient of information for the
beneficiaries; or
(iii) to a charity referred to by name in the
trust instrument as a beneficiary under the trust.
(3) Subject to subsection (2), a trustee or other person is not
required to disclose to another person not legally entitled to it
under subsection (2) any document or information which discloses:
(a) his or her deliberations as to how he or she should
exercise or has exercised his or her functions and
powers as trustee;
2014, No. 8 Trusts 67
(b) the reasons for any decision made in the exercise of
those functions and powers;
(c) any material upon which the decision was or might have
been based;
(d) any part of the accounts of the trust; or
(e) any letter of wishes given by the settlor, or any
beneficiary, or any other person.
(4) Subject to subsection (5) and despite the trust, the Court
may, on application by a person:
(a) declare that, in the particular circumstances of the trust,
its provisions do not render the trustee sufficiently
or appropriately accountable to the beneficiaries or
any of them; and
(b) pursuant to the declaration, extend or restrict the rights
of any or all of the beneficiaries to information
relating to the trust; or
(c) make any other order as it thinks fit.
(5) A person, as defined under subsection (6), must show to the
Court that the information applied for is necessary or expedient:
(a) for the proper disposal of any matter before the Court;
(b) for the protection of the interests of any beneficiary; or
(c) for the proper administration or enforcement of the
trust.
(6) In subsection (3), “person”, for an application, means a
trustee, protector, enforcer or any beneficiary of the trust or person
lawfully acting on his or her behalf and in his or her name.
PART 12
POWERS OF THE COURT
81. Application to and powers of the Court-(1) A trustee
may apply to the Court for any direction, opinion, advice or any
other order as the Court may make, concerning the manner in
which the trustee may or must act in connection with any matter
concerning the trust.
(2) The Court may:
(a) make an order concerning -
(i) the execution or the administration of any
trust;
68 Trusts 2014, No. 8
(ii) the trustee of any trust, including an
order relating to the exercise of any functions,
power, discretion or duty of the trustee, the
appointment or removal of a trustee for any
reason, the remuneration of a trustee, the
conduct of the trustee, the keeping and
submission of proper accounts, and payments,
whether payments into Court or otherwise;
(iii) any trust property, including the making
of any order as to the vesting, preservation,
application, distribution, surrender or recovery
of the trust property;
(iv) a beneficiary or any person having a
connection with the trust as the Court may
determine; or
(v) an enforcer of a purpose trust, including
an order as to the exercise of the enforcer’s
functions and powers, the removal of an
enforcer for any reason, and the appointment,
remuneration or conduct of an enforcer;
(b) make a declaration as to the validity or the
enforceability of a trust; or
(c) rescind or vary any order or declaration made under this
Act, or make any new or further order or
declaration.
82. Payment of cost - The costs and expenses of and incidental
to an application to the Court under this Act are to be paid out of
the trust property or borne and paid in any other manner or by any
other person as the Court may order.
83. Nature of a trustee’s interest - Unless the trustee of a trust
is also a beneficiary of the trust for the trustee’s interest as a
beneficiary:
(a) the interest of a trustee in the trust property is limited to
that which is necessary for the proper performance
of the trust; and
(b) the trust property does not form part of the trustee’s
estate.
2014, No. 8 Trusts 69
84. Following trust property - Without prejudice to the
personal liability of a trustee, trust property which has been
charged or dealt with in breach of trust, or the 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 -
(i) a bona fide purchaser for value without
notice of the breach of trust; or
(ii) a person (other than the trustee) who
derived title through the bona fide purchaser.
85. Bankruptcy of trustees - If a trustee becomes bankrupt,
the trustee’s creditors have no recourse against the trust property
unless the trustee himself or herself has a claim against it or a
beneficial interest in it.
86. Protection for persons dealing with trustee-(1) A bona
fide purchaser for value without notice of a breach of trust:
(a) may deal with a trustee of a trust property as if the
trustee were the beneficial owner of the trust
property; and
(b) is not affected by the trusts on which the trust property
is held.
(2) A person paying or advancing money to a trustee is not
concerned to see that:
(a) the money is wanted;
(b) no more than is wanted is raised; or
(c) the transaction or the application of the money is
proper.
87. Limitation and prescription-(1) There is no period of
limitation or prescription to an action brought against a trustee:
(a) for any fraud to which the trustee was a party or was
privy; or
(b) to recover from the trustee trust property or the
proceeds of trust property -
(i) held by or vested in the trustee or which
is in the trustee’s possession or control; or
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(ii) previously received by the trustee and
converted to the trustee’s use.
(2) Subject to subsections (1) and (3), the period within which
an action founded on breach of trust may be brought against a
trustee is:
(a) three (3) years from the date on which the claimant first
has knowledge of the breach; or
(b) if the claimant was at the time of the breach of trust a
minor or a person under legal disability -
(i) three (3) years from the date on which his
or her guardian first has knowledge of the
breach; or
(ii) three (3) years from the date on which
the claimant ceased to be a minor or a person
under legal disability,
whichever first occurs.
(3) Subject to subsection (1), an action founded on breach of
trust must not be brought against a trustee after the expiration of
six (6) years immediately following the date of the breach.
88. Constructive trusts-(1) A person who derived a profit
from a breach of trust, or who obtains property in breach of trust, is
taken to be a trustee of the profit or property unless the trustee
derives or obtains it in good faith without notice of the breach of
trust.
(2) A person who becomes a trustee by virtue of subsection (1)
must deliver up the profit or property to the person properly
entitled to it.
(3) This section does not exclude any other circumstances in
which a constructive trust may arise.
PART 13
MISCELLANEOUS
89. Regulations-(1) The Head of State, acting on the advice of
Cabinet, may make regulations to give effect to or for the purposes
of this Act, and in particular to make regulations for matters
required to be prescribed under this Act.
2014, No. 8 Trusts 71
(2) Regulations may be made under subsection (1) to regulate
short form trusts.
90. Consequential amendments-(1) For the Income Tax Act
2012:
(a) in section 66(1) -
(i) at the end of paragraph (f), substitute
“full stop” with the “semi colon”; and
(ii) after paragraph (f), insert the following
paragraph:
“(g) capital gains exempted under subsection (1)(zb) of
Part A of Schedule 2.”; and
(b) in subsection (1) of Part A of Schedule 2 -
(i) at the end of paragraph (za), substitute
“full stop” with the “semi colon”; and
(ii) after paragraph (za) insert the following
paragraph:
“(zb) the income and capital gains (other than non-
exempt income or capital gains prescribed by
regulations made under section 106 of this Act)
of the following under the Trusts Act 2014 -
(i) a trustee of a foreign benefitting trust;
(ii) subject to subparagraph (iv), a
company, which is a foreign company in
respect of which the trustee of a foreign
benefitting trust is directly or indirectly and
beneficially entitled to 95% or more of the
issued shares; or
(iii) a limited partnership, in respect of
which the trustee of a foreign benefitting
trust is directly or indirectly and beneficially
entitled to the 95% or more interest of the
limited partner in the limited partnership; or
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(iv) a Samoan incorporated company,
95% or more of the issued shares of which
are beneficially owned by the trustee of a
trust to which sections 48 to 62 of the Trusts
Act 2014 apply.”;
(c) in subsection (2) of Part A of Schedule 2, insert the
following definition in its correct alphabetical
position:
““foreign benefitting trust” has the same meaning under
section 2 of the Trusts Act 2014;”.
(2) In section 6(2) of the Special Purpose International
Companies Act 2012, for “trusts registered under the International
Trusts Act 1988” substitute “foreign trusts”.
91. Repeal, transitional and saving-(1) The following Acts
are repealed, subject to subsections (2) to (4):
(a) the International Trusts Act 1988; and
(b) the Trustee Act 1975.
(2) At the commencement of this Act:
(a) any international trust registered under the International
Trusts Act 1988 continues for a period of 12 months
as if it was a foreign trust under this Act despite
being repealed; and
(b) any existing trust created under the Trustee Act 1975,
continues as if created under this Act.
(3) Any existing registered international trust must, within 12
months from the commencement of this Act, comply with the
requirements of a trust under this Act.
2014, No. 8 Trusts 73
SCHEDULE
(section 30)
DUTY OF CARE
1. Investment - The duty of care applies to a trustee:
(a) when exercising the general power of investment or any
other power of investment, however conferred; or
(b) when carrying out a duty under section 31(6) to (10).
2. Agents, nominees and custodians-(1) The duty of care
applies to a trustee:
(a) when entering into arrangements under which a person
is authorised under section 32 to exercise functions
as an agent;
(b) when entering into arrangements under which a person
is appointed under section 33 to act as a nominee;
(c) when entering into arrangements under which a person
is appointed under section 33 to act as a custodian;
(d) when entering into arrangements under which, with
regard to any other power, however conferred, a
person is authorised to exercise functions as an
agent or is appointed to act as a nominee or
custodian;
(e) when carrying out his or her duties under section 35
(review of agent, nominee or custodian, etc.).
(2) For subclause (1)(b) or (c), entering into arrangements
under which a person is authorised to exercise functions or is
appointed to act as a nominee or custodian includes, in particular:
(a) selecting the person who is to act;
(b) determining any provisions on which he is to act; and
(c) if the person is being authorised to exercise asset
management functions, the preparation of a policy
statement under section 32(13) and (14).
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3. Insurance - The duty of care applies to a trustee when
exercising any power under section 42.
4. Exclusion of duty of care - The duty of care does not apply
if or in so far as it appears from the trust instrument that the duty is
not meant to apply.
__________
The Trusts Act 2014 is administered by the
Samoa International Finance Authority.
