CHAPTER 102A
INTERNATIONAL TRUSTS ACT

Arrangement of Sections

PART I

PRELIMINARY

1. Short title.

2. Interpretation.

3. Application of the Act.

PART II

GENERAL PROVISIONS

4. International Trust.

5. Validity of international trust.

6. Proper law of international trust.

7. Jurisdiction of Court.

8. Confidentiality.

9. Avoidance of international trust.

10. Forced heirship.

11. Duration of international trust.

12. Accumulation of income.

13. Charitable international trust.

14. Purpose international trust.

PART III

CREATION OF INTERNATIONAL TRUSTS

15. Creation of international trust.

16. Trust property.

17. Beneficiaries of an international trust.

18. Disclaimer of beneficial interest.

19. Nature of beneficial interest.

20. Enforcement of international trust.

21. Effect of invalidity on property.

PART IV

APPOINTMENT AND DISCHARGE OF TRUSTEES

22. Number of trustees.

23. New or additional trustees.

24. Acceptance by trustees.

25. Resignation or removal.

PART V

DUTIES OF TRUSTEES

26. Fiduciary duties.

27. Duty to preserve trust property.

28. Duty not to profit.

29. Duty to keep accounting records.

29A. Duty to keep register.

30. Duty to keep trust property separate.

31. Duty to give information.

32. Duty of co-trustees.

33. Impartiality of trustees.

PART VI

GENERAL POWERS OF TRUSTEES

34. Powers of trustees.

35. Powers to sue.

36. Consultation by trustees.

37. Delegation by trustees.

38. Maximum period of delegation.

39. Remuneration of trustees.

40. Power to appropriate.

41. Body corporate acting as trustee.

42. Non-disclosure by trustee.

PART VII

LIABILITY OF TRUSTEES

43. Liability for breach of trust.

44. Saving from liability.

45. Relief by beneficiary.

46. Trustees of more than one trust.

47. Dealings with third parties.

48. Constructive trusts.

49. Outgoing trustees.

PART VIII

PROTECTIVE TRUSTS, CLASS INTERESTS AND EXERCISE OF CERTAIN POWERS

50. Protective trusts.

51. Class interests.

52. Power of variation.

53. Accumulation and advancement.

54. Power of appointment.

55. Power of revocation.

56. Permitted investments.

PART IX

FAILURE, LAPSE AND TERMINATION OF TRUSTS

57. Failure or lapse of interest.

58. Termination of international trust.

PART X

POWERS OF THE COURT

59. Appointment of resident trustee.

60. Power to relieve trustee from liability.

61. Power to make beneficiary indemnify.

62. Variation of international trusts.

63. Approval of transactions.

64. Special provisions on charitable international trust.

65. General power to vary.

66. Notification of person with material interest.

PART XI

MISCELLANEOUS PROVISIONS

67. Enforceability of international trust.

68. Application to Court.

69. General powers of Court in case of default.

70. Payment of costs.

71. Nature of trustee's interest.

72. Following trust property.

73. Bankruptcy of trustees.

74. Protection of person dealing with trustees.

75. Declaration and its registration.

76. Particulars of Declaration.

77. Offence in relation to declaration.

78. Authority.

78A. Licensing of trustees.

79. Limitation period for action against trustees.

79A. Compliance Inspection.

79B. Non-Disclosure of Information.

80. Regulations.

 

26 of 1994,

6 of 2000,

19 of 2011.

AN ACT to make provisions for International Trusts in Seychelles.

[Date of commencement: 1st January 1995]

PART I

PRELIMINARY

1. Short title.

This Act may be cited as the International Trusts Act.

2. Interpretation.

In this Act—

"accounting records" means documents relating to assets and liabilities of the international trust including receipts and expenditure, sales and purchases and other transactions;

[Ins by s 2(a) of Act 19 of 2011 w.e.f. 27 December 2011.]

"Authority" means the Authority referred to in section 78;

"beneficiary" means a person, whether natural or corporate, entitled to benefit under an international trust, or in whose favour a power to distribute trust property may be exercised;

"body corporate" means a company, partnership, or association incorporated under the laws of Seychelles;

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

"charitable international trust" means a trust referred to in section 13;

"constructive trust" means a trust referred to in section 48;

"corporate trustee" means a body corporate acting as trustee of an international trust;

"court" means the Supreme Court;

"financial institution" means an institution in terms of the Financial Institutions Act;

"foreign trust" means a trust the proper law of which is a law other than a law of Seychelles;

"immovable property" includes rights and interests in any immovable property, shares or interest in a body corporate owning immovable property or interests in such property;

"interest", in relation to a beneficiary, means the interest of the beneficiary under an international trust;

"International Business Company" means a company incorporated under the International Business Companies Act;

"minor" means a person who has not attained the age of eighteen;

"person interested", in relation to a power to apply to the court, means the Attorney-General, a trustee, a settlor, a beneficiary of the relevant trust, any person empowered by the terms of the trust to make such application, or any other person with leave of the court;

"personal representative" means the executor or administrator of the estate of a deceased person;

"profit" includes gain or advantage;

"property" includes movable and immovable property, rights and interests in the property whether vested, contingent, defeasible or future;

"purpose international trust" means a trust referred to in section 14;

"registered declaration of trust" means a declaration of trust registered under section 75;

"resident" means—

(a) in relation to an individual, a person who is domiciled in Seychelles;

(b) in relation to a body corporate, a body incorporated or registered under the laws of Seychelles;

"settlor" means a person who provides trust property or makes a testamentary disposition on trust or to a trust;

"terms of a trust" means the written or oral terms of an international trust;

"trust" means a legal relationship which arises where property is vested or deemed to be vested in, or is held by or deemed to be held by, but does not form part of the estate of, a person known as a trustee—

(a) for the benefit of another person known as a beneficiary, whether or not yet ascertained or in existence;

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

(i) trading (commercial trust);

(ii) dealing with life insurance (life insurance trust);

(iii) managing cash deposits (cash deposit trust);

(iv) managing provident funds, pension funds, employee end of service benefit scheme and employee stock option plans.

3. Application of the Act.

This Act applies to international trusts arising voluntarily or resulting by operation of law or by a decision of the court.

PART II

GENERAL PROVISIONS

4. International Trust.

(1) An international trust is a trust or a constructive trust in respect of which—

(a) the settlor is not at any time during the duration of the trust a resident of Seychelles;

(b) at least one trustee shall be a company licensed under the International Corporate Service Providers Act to provide international trustee services, at all times;

[S 4(1)(b) rep and subs by s 2(b)(i) of Act 19 of 2011 w.e.f.
27 December 2011.]

(c) the trust property does not, subject to subsections (3) and (4), include—

(i) any property situated in Seychelles;

(ii) any shares, debentures, or any interests in any body corporate other than a corporate body incorporated under the law of a country other than Seychelles or an International Business Company or another international trust.

(2) ...

[S 4(2) rep by s 2(b)(ii) of Act 19 of 2011 w.e.f.
27 December 2011.]

(3) Notwithstanding subsection (1)(c), a trustee of an international trust may, with the approval of the Authority and subject to any other written law—

(a) own such immovable property as may be required for the office accommodation of the trustee;

(b) invest in securities and hold other investments in Seychelles.

(4) A trustee may open and maintain with a financial institution an account out of which all payments required for the administration and operation of the international trust may be effected.

(5) Where at any time after declaration of trust has been submitted for registration under section 75, a trust ceases to be an international trust, the resident trustee shall forthwith notify the Authority of this fact.

5. Validity of international trust.

Subject to this Act, an international trust is valid and enforceable in Seychelles.

6. Proper law of international trust.

(1) The proper law of an international trust is—

(a) the law chosen by the settlor to be the proper law, the choice being expressed or implied in the terms of the trust; or

(b) if no law is so chosen, the law with which the international trust is most closely connected at the time of its creation.

(2) In ascertaining the law with which an international trust is most closely connected, reference shall be made in particular to—

(a) the place of administration of the trust designated by the settlor;

(b) the situs of the assets of the trust;

(c) the place of residence or business of the trustee;

(d) the objects of the trust and the places where they are to be fulfilled.

(3) The terms of an international trust may provide for the proper law of the trust to be changed, but the change is valid and effective only if the new proper law recognises the validity of the trust and the interest of the beneficiaries.

(4) A change in the proper law of an international trust shall not affect the legality or validity or render any person liable for anything done before the change.

(5) The duties imposed on a trustee in Part V shall have effect notwithstanding anything to the contrary in the proper law of an international trust.

7. Jurisdiction of Court.

The court has exclusive jurisdiction in respect of all matters relating to an international trust.

8. Confidentiality.

(1) Subject to this section, a trustee or any other person shall not disclose to any person not legally entitled to it or be required to produce or divulge to any court, tribunal, committee of inquiry or other authority in Seychelles or elsewhere, any information or document which—

(a) discloses—

(i) the name of the settlor or of any beneficiary;

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

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

(b) relates to the exercise or proposed exercise of such power or discretion or the performance or proposed performance of such duty; or

(c) relates to or forms part of the accounts of the international trust.

(2) An information or document referred to in subsection (1) may be disclosed—

(a) where a request is made by a beneficiary under a trust or in the case of a charitable trust by a charity named in the charitable international trust as beneficiary, for information or disclosure of documents relating to the trust;

(b) to the extent permissible under the terms of the trust.

(3) The court may make an order for disclosure or production of an information or document relating to an international trust for the purpose of an inquiry or trial into or relating to the trafficking of narcotics and dangerous drugs, arms trafficking or money laundering on application by the Attorney-General on proof to the satisfaction of the court that the information or document is bona fide so required.

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

(5) Where the information or document is stored in a computer, any disclosure or supply of the information or document shall be deemed to have been made in compliance with an order of the court under subsection (3) or (4) if it is made in a visible, legible and portable form.

9. Avoidance of international trust.

(1) Unless an international trust contains an express power of revocation, it shall be deemed to be irrevocable by the settlor or the settlor's legal representative.

(2) Notwithstanding—

(a) any other law of Seychelles or the law of any other country; or

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

an international trust shall not be void or voidable in the event of or by reason of the settlor's bankruptcy or liquidation of the settlor's property or in any action or proceedings against the settlor at the suit of the settlor's creditors.

(3) Notwithstanding subsection (2), the court may, where it is proved beyond reasonable doubt that an international trust was made with the intent to defraud persons who were creditors of the settlor or the settlor was insolvent at the time when the trust property was vested in the trustee, declare the international trust void or voidable to the extent necessary to satisfy the claim of a creditor.

(4) The onus of proof of the intent to default under subsection (3) shall rest on the creditor.

(5) Notwithstanding the Civil Code, an action under subsection (3) shall not lie against the trustee of an international trust after more than two years from the date of the transfer or disposal of the assets to the international trust.

10. Forced heirship.

(1) In this section, "foreign rule of forced heirship" means any rule of law of a jurisdiction other than Seychelles which, in order to protect or give effect to the rights of any person or class of persons to inherit, succeed to or share in the settlor's property on the settlor's death, purports to remove or restrict the settlor's right to encumber, alienate or otherwise deal in or dispose of property belonging to the settlor during the settlor's life-time and includes any judicial or administrative order of a jurisdiction other than Seychelles intended to enforce or implement any such rule.

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