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THE TRUSTS ACT 2001
THE TRUSTS ACT 2001

Act 14/2001

Proclaimed by [
Proclamation No. 22 of 2001] w.e.f 1 st December, 2001

ARRANGEMENT OF SECTIONS
Section

PART I – PRELIMINARY

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

PART II – NATURE OF TRUSTS
6.
Trust instrument
7.
Transfer on trust
8.
The settlor
9.
Duration of trust
10.
Accumulation of income 11.
Avoidance of trust
12.
Validity of trust
13.
Effect of invalidity on property

PART III – OBJECTS OF TRUST
14.
Beneficiaries of a trust
15.
Class interests
16.
Disclaimer of beneficial interest
17.
Nature of beneficial interest
18.
Protective or spendthrift trust
19.
Purpose trust
20.
Charitable trust
21.
Enforcers
22.
Immovable property in Mauritius
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THE TRUSTS ACT 2001

PART IV – TRUSTEES AND PROTECTORS
23.
Appointment of trustees
24.
Protector of trust
25.
Custodian trustee
26.
Managing trustee
27.
Letters or memoranda of wishes
28.
Number of trustees
29.
New or additional trustees
30.
Acceptance by trustee
31.
Resignation or removal of trustee
32.
Nature of trustee’s interest
33.
Disclosure by trustee
34.
Corporate trustee
35.
Notice of other trusts
36.
Dealings with third parties

PART V – DUTIES OF TRUSTEES

37.
Fiduciary duties
38.
Duty relating to trust property
39.
Duty to act together
40.
Duty to act impartially

PART VI – GENERAL POWERS OF TRUSTEES

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

PART VII – BREACH OF TRUST
50.
Liability for breach of trust
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THE TRUSTS ACT 2001
51. Relief by beneficiary
52.
Relief by Court

PART VIII – CONSTRUCTIVE TRUST AND TRACING
53.
Constructive trust
54.
Tracing

PART IX – FAILURE, LAPSE AND TERMINATION OF TRUST
55.
Failure or lapse of interest
56.
Termination of trust
57.
Termination by beneficiaries
58.
Termination by Court
59.
Termination or variation of a charitable trust

PART X – APPLICATION TO FOREIGN TRUST

60.
Enforceability of foreign trust
61.
Proper law

PART XI – POWERS OF COURT

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

PART XII – MISCELLANEOUS

68.
Limitation of actions
69.
Rules of Court
70.
Regulations
71.
Transitional provisions
72.
Consequential amendments
73.
Repeal
74.
Commencement

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THE TRUSTS ACT 2001
An Act
To amend and consolidate the law relating to trusts and trustees,
and to provide for ancillary and consequential matters.

ENACTED by the Parliament of Mauritius, as follows –
PART I – PRELIMINARY

1. Short title

This Act may be cited as the Trusts Act 2001.
2.
Interpretation

In this Act-
“beneficiary” means a person, whether natural or corporate, entitled to
benefit under a
trust, or in whose favour a power to distribute trust property may be ex
ercised;
“body corporate” means a company, société or association wherever
incorporated;
“breach of trust” means a breach of any duty imposed on a trustee by thi
s Act or by the
terms of the trust;

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

“Code” means the Code Civil Mauricien;
“Commission” means the Financial Services Commission established under t
he Financial
Services Development Act 2001;

“constructive trust” means a trust referred to in section 53;
“corporate trustee” means a body, corporate appointed or acting as tr
ustee;

“Court’ means the Supreme Court;

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

“enforcer” means a person referred to as such in section 21;
“foreign trust” means a trust the proper law of which is a law other tha
n the law of
Mauritius;
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“functions” includes rights, powers, discretions, obligations, liabiliti
es and duties;

“immovable property” includes –

(a) rights and interests in any immovable property; and
(b) shares or interest in a body corporate owning immovable property
in Mauritius
or interests in such property directly, indirectly or through the interp
osition of other
body corporate, firm, partnership or person;
“interest”, in relation to a beneficiary, means his interest under a tru
st;
“management company” has the same meaning as in the Financial Service
s Development
Act 2001;

“managing trustee” means a trustee referred to in section 26;
“Minister” means the Minister to whom responsibility for the subject of
financial services is
assigned;

“minor” means a person who has not attained the age of eighteen;
“non-charitable purpose trust” means a trust having a purpose other than
a charitable
purpose;
non-citizen” has the same meaning as in the Non-Citizens (Property Rest
riction) Act;

“person” means a natural person or a body corporate;
“person having an interest” means, in relation to a power to apply to th
e Court, the
Attorney-General, a trustee, a settlor, an enforcer, a protector, a bene
ficiary of the relevant
trust, any person empowered by the terms of the trust to make such appli
cation, or any
other person with leave of the Court;
“personal representative” means the executor or administrator of the est
ate of a deceased
person;

“profit” includes gain or advantage;
“property” includes movable and immovable property, wherever situated, r
ights and
interests in the property whether vested, continent, defeasible or futur
e;

“protective or spendthrift trust” means a trust referred to in sectio
n 18;
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THE TRUSTS ACT 2001
“purpose trust” means a trust referred to in section 19, and includes a
charitable trust;
“qualified trustee” means a management company or such other person resi
dent in
Mauritius as may be authorised by the Commission to provide trusteeship
services;
“settlor” means a person who provides trust property or makes a testamen
tary disposition
on trust or to a trust;

“trust” means a trust referred to under section 3 and includes –

(a) the trust property; and

(b) the functions, interest and relationships under the tru
st;

“trust property” means property held on trust;

3. Existence of trust
(1) For the purposes of this Act, a trust exists where a person
(known as a
“trustee”) holds or has vested in him, or is deemed to hold or have ves
ted in him,
property of which he is not the owner in his own right, with a fiduciary
obligation to
hold, use, deal or dispose of it –
(a) for the benefit of any person (a “beneficiary”), whether or not
yet
ascertained or in existence;
(b) for any purpose, including a charitable purpose, which is not for
the benefit
only of the trustee; or
(c) for such benefit as is mentioned in paragraph (a) and also for a
ny such
purpose as is mentioned in paragraph (b).
(2) Notwithstanding articles 893, 896, 931 and 1130 of the Code
, property and
rights may be transferred to or vested upon trust in accordance with thi
s Act.

4. Recognition of trust
Subject to this Act, a trust shall be recognised as valid and enforceabl
e under the laws of
Mauritius.
5.
Application of Act

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THE TRUSTS ACT 2001
This Act shall apply to trusts arising voluntarily, or resulting by oper
ation of law, or by
judicial decision.
PART II – NATURE OF TRUSTS

6. Trust instrument
(1) Notwithstanding Article 931 of the Code, a trust other than
a unit trust, a
constructive or a resulting trust or any trust arising by operation of l
aw or by judicial
decision –

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

(2) An instrument creating a trust shall be void unless it
states-
(a) the name of the trustee;
(b) the intention of the settlor to create a trust, or the declaration
of the trustee
that he holds property on trust;
(c) the object of the trust, the beneficiaries or class of beneficiari
es, as the
case may be;
(d)
the property transferred or held on trust; and

(e) the duration of the trust.
(3) A trust instrument shall be admissible in evidence notwiths
tanding the
absence of the formalities prescribed by Articles 1325 and 1326 of the C
ode.

7. Transfer on trust
(1) Subject to the other provisions of this Act, any property m
ay be held by or
vested in a trustee on trust.
(2) Notwithstanding subsection (1), no transfer or disposal t
o a trust shall be
valid in respect of –
(a) property which is inalienable under the law of Mauritiu
s;

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THE TRUSTS ACT 2001
(b) a leasehold interest the unexpired term of which is less than 18 y
ears;
(c) any immovable property in Mauritius where the trust is a non-chari
table
purpose trust.
(3) Subject to the terms of the trust, a trustee may accept fro
m any person
property to be added to the trust property.
(4) Where a settlor declares a trust respecting a property whic
h he does not own
at the time of the declaration –
(a) the trust is incompletely constituted at the time of the declarati
on and no
rights or duties arise under the trust instrument,
(b) unless earlier revoked, the trust shall be deemed to come into exi
stence at
the time the settlor becomes legally entitled to the property which was
the
subject of the declaration.
(5) Article 931 of the Code shall not apply to any transfer of
property on trust.
(6) The transfer or disposition on trust of property situated o
utside Mauritius,
which if it had taken place in Mauritius would constitute a valid transf
er or disposition
of the property under this Act, shall not be declared void or invalid me
rely by reason
that it contravenes the applicable law of the transfer or disposition, o
r the law of the
transferor’s domicile or nationality.
(7) The trustee shall not acquire a better title to the trust p
roperty than the one
which the settlor or transferor had immediately before the transfer or d
isposition.
(8) Where property in Mauritius is transferred upon trust under
the laws of
Mauritius, the deed of transfer shall mention expressly the transferee i
n his capacity
as trustee.
(9) No transfer of property to a trustee on trust shall be vali
d otherwise than in
accordance with the formalities prescribed for
such transfer.

8. The settlor
(1) Subject to the other provisions of this section, any person
who has the legal
capacity to contract may create a trust.
(2) A settlor may also be a trustee, a beneficiary, a protector
or an enforcer, but
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THE TRUSTS ACT 2001
shall not be the sole beneficiary of a trust of which he is a settlor.
(3) A settlor, who is a non-citizen and who transfers or dispos
es of assets to a
trust, shall be deemed to have had the capacity to do so, where at the t
ime of the
transfer or disposal, he is of full age and of sound mind under –
(a) the laws of Mauritius; or
(b)
the laws of his domicile or of his nationality; or

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

9. Duration of trust
(1) The duration of a trust other than a purpose trust shall no
t exceed ninety
nine years from the date of its coming into existence, unless it is earl
ier terminated.
(2) Notwithstanding article 900-1 of the Code or any other enac
tment, a
charitable trust may be of perpetual duration.
(3) The terms of a non-charitable purpose trust shall limit its
duration to a term
not exceeding 25 years.

10. Accumulation of income
(1) Subject to subsection (2), the terms of a trust may direc
t or authorise the
accumulation of all or part of the income of the trust for a period not
exceeding the
maximum duration of the trust.
(2) Where the trust property includes an immovable property sit
uated in
Mauritius, the accumulation period shall not exceed 25 years.
(3) Subject to any power of maintenance or advancement or other
terms of the
trust, income which is not accumulated shall be distributed.

11. Avoidance of trust
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THE TRUSTS ACT 2001
(1) Unless a trust contains an express power of revocation, it
shall be deemed to
be irrevocable by the settlor and his legal representative.
(2)
Notwithstanding –
(a) article 1167 of the Code, any provision of the Bankruptcy Act, or
any other
law of Mauritius or any rule of law of any other jurisdiction;
(b) the fact that the trust is voluntary, and is effected without cons
ideration, or
is made on or for the benefit of the settlor, the spouse or children of
the settlor,
or any of them,
a trust shall not be void or voidable, or otherwise invalidated in the e
vent of or by
reason of the settlor’s bankruptcy of liquidation of his property or in
any action, or
proceedings against the settlor at the suit of his creditors.
(3) Notwithstanding subsection (2), the Court may declare a t
rust void, where it
is established that the trust was made with the intent to defraud person
s who were
creditors of the settlor at the time when the trust property was vested
in the trustee.
(4) No action under subsection (3) shall lie against the trus
tee of a trust after
more than 2 years from the date of the transfer or disposal of the asset
s to the trust.
(5) Notwithstanding any rule or law relating to enforcement of
judgments given
by the court of another jurisdiction, where the law
of Mauritius is the proper law of a trust, the Court shall not vary it o
r set it aside or
recognise the validity of any claim against the trust property pursuant
to the law of
another jurisdiction or the order of a court of another Jurisdiction in
respect of –
(a) the personal and proprietary consequences of marriage or the disso
lution
of marriage;
(b) succession rights (whether testate or intestate) including the f
ixed shares of
spouses, ascendants and descendants or relatives; or
(c) the claim of creditors in an insolvency.
(6) For the purposes of subsections (2), (3) and (4), “tr
ust” does not include a
trust set up by a Mauritian national or a person domiciled in Mauritius.

12. Validity of trust
(1) Subject to this Act, a trust shall be valid and enforceable
in accordance with
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THE TRUSTS ACT 2001
its terms.

(2) A trust shall not be valid and enforceable where –
(a) it purports to do anything contrary to the law of Mauri
tius;
(b) it purports to confer any right or power or impose any obligation
the
exercise of which or the carrying out of which is contrary to the laws o
f
Mauritius;
(c) it has no beneficiary identifiable or ascertainable, unless it is
a purpose
trust;
(d) the Court declares that –
(i) it was established by duress, fraud, mistake, influence,
misrepresentation, or in breach of fiduciary duty; or
(ii)
it is immoral; or
(iii)
its terms are so uncertain that its performance is rendered
impossible; or
(iv) the settlor had, at the time of its creation, no legal capacity t
o create
such a trust.

(3) Where some of the terms of a trust are invalid but othe
rs are not –
(a) in case the terms or purposes cannot be separated, the trust shall
be
invalid;
(b) in case the terms can be separated, the Court may declare that the
trust is
valid as to the terms which are valid.
(4) Where a trust is created for two or more purposes of which
some are lawful
and others are not –
(a) where the purposes cannot be separated, the trust shall be invalid
;
(b) where the purposes can be separated, the Court may declare that th
e trust
is valid with regard to the purposes which are lawful.

(5) Where a trust is partially invalid, the Court may declare w
hat property is to be
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THE TRUSTS ACT 2001
held subject to the trust and what property is not.
(6) An application to the Court under this section may be made
by any person
having an interest in the trust.

13. Effect of invalidity on property
Any property as to which a trust is invalid shall, subject to any order
of the Court made
under section 12(6), be held by the trustees in trust for the settlor
absolutely or, if he is
dead, for his heirs and successors as if it had formed part of his estat
e at his death.
PART III – OBJECTS OF TRUST

14. Beneficiaries of a trust

(1) A beneficiary shall be –
(a) identifiable by name; or
(b)
ascertainable by reference to –

(i) a Class; or
(ii) a relationship to another person, whether or not living at the ti
me of
the creation of the trust or at the time by reference to which, under th
e
terms of the trust, members of a class are to be determined.

(2) The terms of a trust may –
(a) provide for the addition of a person as beneficiary, or for the ex
clusion from
benefit of a beneficiary; or
(b) impose an obligation upon a beneficiary as a condition of benefit.

15. Class interests
Where a trust is in favour of a class of persons, subject to the terms o
f the trust –
(a) the class shall be deemed to close when it is no longer pos
sible for any other
person to become a member of that class;
(b) a woman over the age of 55 years shall be deemed to be no l
onger capable
of bearing a child; and

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THE TRUSTS ACT 2001
(c) where the interest of the class relates to income, and
no member of the class exists, the income shall be accumulated and retained
until a
member of the class comes into being or the class closes.

16. Disclaimer of beneficial interest
(1) Subject to the terms of the trust, a beneficiary may discla
im his interest or
any part of it, whether or not he has received any benefit from it.
(2) A disclaimer shall be in writing and, subject to the terms
of the trust, may –
(a) be temporary; and
(b) where the disclaimer so provides, be revoked in the manner and
circumstances specified in the disclaimer.

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

17. Nature of beneficial interest
(1) The interest of a beneficiary is movable property and subje
ct to the terms of
the trust freely transmissible.
(2) Subject to the terms of the trust, the interest of a benefi
ciary may be sold,
pledged, charged, transferred or otherwise dealt with.

18. Protective or spendthrift trust
(1) The terms of a trust may make the interest of a beneficiary
subject to –
(a) termination;
(b) restriction on alienation of or dealing in that interest or any pa
rt of that
interest;
(c) diminution, suspension or termination;
in the event of the beneficiary becoming insolvent or any of his propert
y becoming
liable to seizure or sequestration for the benefit of his creditors and
such trust shall
be known for the purposes of this Act as a protective or spendthrift tru
st.
(2) Where any property is directed to be held on protective or
spendthrift trust for
the benefit of a beneficiary, the trustee shall hold that property –

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(a) in trust to pay the income to the beneficiary until the interest t
erminates in
accordance with the terms of the trust or a determining event occurs; an
d
(b)
if a determining event occurs, and while the interest of the beneficiary

continues, in trust to pay the income to any of the following as the tru
stee shall
in his absolute discretion appoint-
(i)
the beneficiary and any spouse or child of the beneficiary;
(ii)
if there is no such spouse or child, the beneficiary and the
persons who would be entitled to the estate of the beneficiary if he had

at the time of the payment died intestate and domiciled in Mauritius.
(3) For the purpose of subsection (2), “determining event” me
ans the
occurrence of any event, or any act or omission on the part of the benef
iciary (other
than the giving of consent to an advancement of trust property) which w
ould result in
the whole or part of the income of the beneficiary from the trust becomi
ng payable to
any person other than the beneficiary.

19. Purpose trust
(1) A trust may be created for a purpose, notwithstanding the a
bsence of any
beneficiary. –

(2) A purpose trust shall ‘not be valid and enforceable exc
ept where –
(a) the purpose, whether charitable or not, for which the trust is cre
ated is –
(i) specific, reasonable and capable of fulfilment;
(ii) not immoral, unlawful or contrary to public policy;
(b) the terms of the trust provide for the appointment of an enforcer who is capable of enforcing the trust and for the appoint
ment of
a successor to an enforcer;
(c) at least one trustee is a qualified trustee;
(d) the instrument creating the trust provides for the disposition of
surplus
assets of the trust upon its termination whether by expiry, on a specifi
ed date
or on the occurrence of a specified event, or for any other cause.
(3) The transfer or vesting on a non-charitable purpose trust o
f immovable
property situated in Mauritius shall be void and of no effect.
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THE TRUSTS ACT 2001
(4) Where a qualified trustee has reason to believe that a pers
on who is
appointed to enforce a purpose trust is dead, is unwilling, refuses or i
s unfit to act or
is incapable of acting, he shall as soon as practicable inform the Attor
ney-General in
writing of the fact.
(5) On being satisfied of the inability of the enforcer in term
s of subsection (4),
the Attorney-General shall within 90 days appoint the successor to the e
nforcer
under the terms of the trust as enforcer, or in his absence or his refus
al or inability
for any reason, a fit and proper person to be enforcer of the purpose tr
ust.
(6) A purpose trust created by a Mauritian national shall be vo
id except where
the appointment of the enforcer and his designated successor is approved
by the
Commission.

20. Charitable trust
(1) For the purposes of this Act, a trust shall be deemed to be
charitable where
the trust has as its exclusive purpose or object one or more of the foll
owing –
(a) the relief of poverty;
(b)
the advancement of education;
(c)
the advancement of religion;
(d) the protection of the environment;
(e) the advancement of human rights and fundamental freedom
s;
(f) any other purpose beneficial to the public in general.

(2)
A trust established for one or more of the objects or purposes set out i
n
subsection (1) shall be deemed to be charitable notwithstanding that –

(a) the object or purpose may not be of a public nature or for the ben
efit of the
public, but may benefit a section of the public, or members of the, publ
ic, or
that it may also benefit privately one or more persons or objects within
a class
of persons not resident in Mauritius; or
(b) the trust is liable to be modified or terminated whether by the ex
ercise of a
power of appointment or disposition of assets; or

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(c) the trustee has the power to defer the distribution of the benefit
s to any
charity or other beneficiary of the trust for a period not exceeding the
duration
of the trust; or
(d) the trust may be discretionary;
(e) the charitable objects are pursued in Mauritius or elsewhere and a
re
beneficial to the community in Mauritius or elsewhere.
(3) Articles 910 and 911 of the Code shall not apply to a chari
table trust.

21. Enforcers
(1) There shall be appointed under the terms of a purpose trust
an enforcer
whose duty shall be to enforce the trust in accordance with its terms an
d purposes.
(2) No person shall at any time act as both trustee and enforce
r of the same
trust.
(3) An appointment as enforcer shall be of no effect unless the
appointment has
been accepted by enforcer, and in the case of a purpose trust created by
a Mauritian
national, the appointment has
been approved by the Commission.

(4) An enforcer shall not –
(a) place himself in a position which may conflict with his duties to
enforce the
purposes of the trust;
(b) derive directly or indirectly any profit by reason of his appointm
ent other
than any reasonable fee for his service and for any reasonable expenses
which he may have incurred in the discharge of his duties;
(c) enter on his own account into any dealing with the trustee of the
purpose
trust or in relation to the trust property of the purpose trust of which
he is an
enforcer.
(5) An enforcer may resign his office and his resignation shall
take effect on the
delivery of notice in writing to the trustee of the
purpose trust.
(6) An enforcer shall be provided, in addition with any documen
ts, accounts or
other information to which he may be entitled under the terms, of the pu
rpose trust,
with –
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(a) annual accounts of the trust;
(b) copies of the trust instrument setting up the purpose trust and an
y deed, or
documents referred to in the instrument; and
(c) legal opinions and advice received by the trustees.

(7) The resignation of an enforcer shall not release the enforc
er from any liability
in relation to the trust arising before his resignation.
(8)
An enforcer shall cease to act as enforcer of the trust –
(a)
as from the effective date of his resignation;
(b) by virtue of any term in the trust which has as effect the termina
tion of his
appointment as enforcer; or
(c) upon his removal by the Court; or
(d) as from the date he takes appointment as trustee of the same trust
.

22. Immovable property in Mauritius
(1) Unless approved by the Prime Minister under the Non-Citizen
s (Property
Restriction) Act –
(a) any transfer or vesting of an immovable property situated in Mauri
tius upon
a trust of which a beneficial interest is held by a non-citizen shall be
void and
of no effect;
(b) the appointment of a non citizen as beneficiary of a trust the tru
st property
of which includes immovable property situated in Mauritius, shall be voi
d and
of no effect.
(2) Notwithstanding any term of the trust, a trustee, except wi
th the approval of
the Prime Minister, shall not make any distribution or any payment from
the trust,
whether of income or capital, whether by way of maintenance, advancement
or
otherwise, to a beneficiary who is a non-citizen where the trust propert
y includes an
immovable property situated in Mauritius.

(3) Where a qualified trustee becomes aware of a breach of any
provisions of
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this section, it shall forthwith report the matter to the Attorney-Gener
al who may
apply to the Judge in Chambers for an order vesting the immovable proper
ty situated
in Mauritius in the Curator of Vacant Estates, or for such other order a
s he thinks fit.
PART IV – TRUSTEES AND PROTECTORS

23. Appointment of trustees

(1) No person shall be appointed as trustee of a trust othe
r than –
(a) a person of full age who has the legal capacity to cont
ract;
(b) a body corporate permitted under its statute to act as trustee.
(2) A trustee shall not hold a beneficial interest under the tr
ust of which he is a
trustee except where he is not –
(a) the sole trustee of the trust; or
(b) the sole beneficiary under the trust.

24. Protector of trust

(1) The terms of a trust may provide –
(a) for the office of protector of the trust, whose functions shall be
to advise the
trustee of the trust, and with such powers as may be conferred;
(b) that the exercise by the trustees of any of their powers and discr
etions shall
be subject to the prior consent of the protector.
(2) The trust instrument may appoint as protector, any person o
f full age and of
sound mind, including the settlor, or any body corporate, any firm, part
nership or
group of persons, whether incorporate or unincorporate.
(3) Unless otherwise provided in the terms of the trust, the pr
otector shall have
the power-
(a) to remove a trustee and to appoint a new or additional trustee;
(b) to determine the law of which jurisdiction shall be the proper law
of the
trust;
(c) to change the forum of administration of the trust;
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(d) to withhold consent from specified actions of the trustees either
conditionally or unconditionally.
(4) A person exercising any of the powers set out in subsection
(3) shall not by
reason only of the exercise of the power be deemed to be a trustee, and
unless
otherwise provided under the terms of the trust, shall not be liable to
the
beneficiaries or the trustees for the bona fide exercise of the power.
(5) The protector of a trust may also be a settlor, a trustee o
r a beneficiary of the
trust.
(6) Where there is more than one protector of a trust, any func
tions conferred on
the protectors may be exercised, subject to the terms of the trust, by a
majority of the
number of protectors.
(7) A protector who dissents from a decision of the majority of
protectors may
require his dissent to be recorded in writing.

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

(2) Subject to the terms of the trust, –
(a) the trust property shall be vested in the custodian trustee as if
the
custodian trustee were the sole trustee;
(b) notwithstanding the vesting of the trust property in the custodian
trustee,
the management of the trust property and the exercise of all powers and
discretions exercisable by the trustee under the trust shall remain vest
ed in the
managing trustee;
(c) the sole function of the custodian trustee shall be to hold the tr
ust property
and invest its funds and dispose of the assets as the managing trustee m
ay
direct, for which purpose the custodian trustee shall execute all such
documents and perform all such acts as are necessary;
(d) where there is more than one managing trustee, a direction given b
y the
majority of them shall be valid as if given by all of the managing trust
ees.
(3) The custodian trustee shall not be liable for acting on the
direction given by
the managing trustee except where the custodian
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trustee had reason to believe that the direction so given –
(a)
is in contravention of any law, rule or regulation;

(b) is contrary to the terms of the trust;
(c) is contrary to sound commercial practice; or

(d) is otherwise objectionable.
(4) Where the custodian trustee is of opinion that the directio
n of the managing
trustee cannot be complied with for any reason set out under subsection
(3), it may
apply to the Court as a person having an interest in the trust for a dir
ection and the
Court shall make such order as it thinks proper.
(5) The custodian trustee shall not be liable for any act or de
fault committed by
the managing trustee.
(6) All actions and proceedings relating to the trust property
shall be brought or
defended in the name of the custodian trustee at the instruction of the
managing
trustees, and the custodian trustee shall recover any costs and expenses
from the
trust property.
(7) No person dealing with the custodian trustee shall be conce
rned to inquire
as to the concurrence or otherwise of the managing trustees or be affect
ed by notice
of the fact that the managing trustee have not concurred in any decision
or direction.

26. Managing trustee
(1) The terms of a trust may provide for the appointment of a m
anaging trustee
having the role and functions to manage the trust without being vested w
ith the trust
property which is vested in a custodian trustee.
(2) Where the terms of a trust reserve the exercise of any of t
he trustees’
powers to the managing trustee, no other trustee shall be liable for any
of the
decisions, acts or transactions of the managing trustee to the extent th
at they
amount to exercise of powers so reserved.

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

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(2) A beneficiary of a trust may give to the trustees a letter
of his wishes or the
trustees may prepare a memorandum of the wishes of the beneficiary with
regard to
the exercise of any functions conferred on the trustees by the terms of
the trust.
(3) Where a trust is, in favour of a class of persons, any memb
er of that class
may give to the trustees a letter of his wishes or the trustees may prep
are a
memorandum of the wishes of that member with regard to the exercise of a
ny
functions conferred on the trustees by the terms of the trust.
(4) Where a letter of wishes or a memorandum of wishes is given
to or prepared
by the trustees of a trust, the trustees-
(a) may have regard to that letter or memorandum in exercising any fun
ctions
conferred upon them by the terms of the trust; but
(b) shall not be accountable in any way for their failure or refusal t
o have
regard to that letter or memorandum.
(5) No fiduciary duty or obligation shall be imposed on a trust
ee merely by the
giving to him of a letter of wishes or the preparation by him of a memor
andum of
wishes.

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

(2) A trust shall not terminate or be invalid on, the groun
d that-
(a) there is no trustee or less than the number required by subsection
(1) or by
the terms of the trust;
(b) there is no qualified trustee in relation to the trust.

(3) Where the number of trustees is less than the number requir
ed by the terms
of the trust, the necessary number of additional trustees shall be appoi
nted.
(4) Where at any time there is no qualified trustee of a trust,
any person having
an interest in the trust may apply to the Judge in Chambers for the appo
intment of a
qualified trustee nominated in the application.

(5) The Judge –
(a) on being satisfied that notice of the application has been served
on the
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existing trustees;
(b) having ascertained that the person nominated is qualified and will
ing to act;
and
(c) after hearing the Commission or its representative,
may appoint that person as a trustee.
(6) Until the required number is reached, or a qualified truste
e is appointed, the
existing trustee shall act only for the purpose of preserving the trust
property.

29. New or additional trustees
(1) Where the terms of a trust contain no provision for the app
ointment of an
additional trustee, or in the absence of a protector or a power by the p
rotector to
make the appointment, such a trustee may be appointed by the persons in
the order
set out hereunder –
(a) the remaining trustees;
(b) the last remaining trustee;
(c) the personal representative or liquidator of the last remaining tr
ustee; or
(d) in the absence of any of the persons referred to in paragraphs (a
) to (c), by
the Judge in Chambers, on application by the person having an interest.
(2) Subject to the terms of the trust, a trustee appointed unde
r this section has
the same functions, and may act in all respects, as if he had been origi
nally
appointed a trustee.
(3) A trustee with power to appoint a new or additional trustee
who refuses or
fails to exercise the power may be removed from office by the Judge in C
hambers,
on application by a person having an interest.
(4) On the appointment of a new or additional trustee, the trus
t property shall be
deemed to vest in him jointly with his co-trustee, if any, without any c
onveyance or
assignment.
(5) No vesting of trust property in a trustee on the death, ret
irement or removal
of a trustee shall be construed as a transfer of property or shall give
rise to any taxes
or duties under any enactment.

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30. Acceptance by trustee
(1) A person appointed as trustee may refuse the, appointment,
but where he
knowingly intermeddles with the trust or its affairs, he shall be deemed
to have
accepted it.
(2) A person appointed as trustee may, within 3 months of being
informed of the
appointment –
(a) disclaim the appointment by notice in writing to the settlor or to
the other
trustees;
(b) where the settlor is dead or cannot be found, and there are no oth
er
trustees, apply to the Court for relief from the appointment, whereupon
the
Court may make such order as it thinks fit.
(3) Any person who fails to disclaim appointment or to apply fo
r relief within the
period prescribed under subsection (2) shall be deemed to have accepte
d the
appointment.

31. Resignation or removal of trustee
(1) A trustee other than a sole trustee may resign his office b
y delivering a
written notice of resignation to his co-trustees.
(2)
A trustee shall cease to be a trustee immediately upon-

(a) the delivery of a notice of resignation under subsectio
n (1);
(b) his removal from office by the Court;
(c) the coming into effect of, or the exercise of a power under the te
rms of the
trust under or by which he is removed from or otherwise ceases to hold,
his
office.
(3) A person who ceases to be a trustee under this section shal
l do everything
necessary to vest the trust property in the new or continuing trustees.

(4) When a trustee resigns or is removed –
(a) he shall, subject to paragraph (b), duly surrender all trust pro
perty held by
or vested in him or otherwise under his control;
(b) where so permitted by the terms of the trust, he may require that
he be
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provided with reasonable security for liability (existing, future, cont
ingent or
otherwise) before surrendering the trust property.
(5) A trustee who complies with subsection (4)(a) shall be
relieved of liability to
any beneficiary, trustee or other person interested under the trust for
any act or
omission in relation to the trust property or to his functions as a trus
tee, except any
liability –
(a) arising from a breach of trust to which the trustee (or, in the c
ase of a
corporate trustee, any of its officers or employees) was a party or was
privy;
(b) in respect of any action to recover from the trustee (or, in the
case of a
corporate trustee, any of its officers or employees) trust property or
the
proceeds thereof in his possession.

32. Nature of trustee’s interest

(1) Subject to subsection (2) –
(a) the interest of a trustee or protector in the trust property is li
mited to that
whic9is necessary for the proper performance of the trust; and
(b) the trust property does not form part of the estate of the trustee
or of the
protector.
(2) Where a trustee or a protector of a trust is also a benefic
iary of the trust,
subsection (1) does not apply to his interest as a beneficiary.
(3) Where a trustee or a protector becomes bankrupt, or upon hi
s property
becoming liable to arrest, seizure, forfeiture, expropriation or similar
process of law,
his creditors shall have no recourse against the trust property except t
o the extent
that the trustee or the protector himself has a claim against it or a be
neficial interest
in it.
33.
Disclosure by trustee
(1) Subject to the other provisions of this section, a trustee
shall, on receipt of a
request, provide accurate information as to the state and amount of the
trust
property and the conduct of the trust administration –
(a)
to the Court;
(b)
to the settlor, the enforcer, or the protector of the trust, unless the
trustee has reason to believe that such person is making the request und
er
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duress;
(c)
where the terms of the trust so authorise –
(i) to any beneficiary of the trust of full age who has legal capacity
and
having a vested interest in the trust;
(ii) to any charity for the benefit of which the trust was established
.
(2) Except where ordered by the Court or a Judge in Chambers fo
r a reason
specified in subsection (3), a trustee shall keep as confidential and
shall not be
required to disclose to any person not legally entitled to it under subs
ection (1), or be
required to produce or divulge to any Court, tribunal, committee of enqu
iry or other
authority in Mauritius or elsewhere, any information or document in his
possession or
under his control relating to –
(a) the state and amount or any other details of the trust property;
(b)
the conduct of the trust administration;
(c) the trustee’s deliberations as to the manner in which a power or a
discretion
was exercised, or a duty conferred or imposed by the law or by the terms
of
the trust was performed;
(d) the reason for any particular exercise of such power or discretion
or
performance of duty or the material upon which such reason will be or mi
ght
have been based; or
(e) the exercise or proposed exercise of such power or discretion or t
he
performance or proposed performance of such duty.
(3) Notwithstanding any other enactment, the Court or the Judge
in Chambers
shall not make an order for disclosure or production of any confidential
information
referred to in subsection (2) except on the application of the Directo
r of Public
Prosecutions and on proof beyond reasonable doubt that the confidential
information
is bona fide required for the purpose of any enquiry or trial into or re
lative to –
(a) the trafficking of narcotics and dangerous drugs and to the procee
ds of
such trafficking, contrary to the Dangerous Drugs Act 1986, arms traffic
king or
economic crime and money laundering under the Economic Crime and Anti-
Money Laundering Act 2000;
(b) any act done, otherwise than in Mauritius which, if done in Maurit
ius, would
have constituted an offence of trafficking or economic crime and money
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laundering under the Economic Crime and Anti-Money Laundering Act 2000.

(4) This section shall be without prejudice to-
(a) the obligations of Mauritius under any international treaty, conve
ntion or
agreement, and to the obligations of any public sector agency under any
international arrangement or concordat;
(b) such disclosure as is necessary for the purpose of administering t
his Act
and the Financial Services Development Act 2001, or of discharging a fun
ction
under these enactments.
(5) Where on application by a person having an interest in the
trust, the Court is
satisfied that the disclosure is bona fide required for the purpose of a
ny civil
proceedings, the Court may order the disclosure of information or docume
nt or part
of it, subject to such conditions as it thinks fit to impose for the pur
pose of protecting
the information or document so obtained from abuse.

34. Corporate trustee
A body corporate may as trustee –
(a) act in connection with a trust by a resolution of its b
oard of directors or other governing body; or
(b) by such a resolution appoint an officer or employee to act on its
behalf in
connection with the trust.

35. Notice of other trusts
(1) A trustee shall not, in the absence of fraud, be affected b
y notice of any
instrument, matter, fact or thing in relation to a trust if he obtained
notice of it by
reason of his acting or having acted for the purposes of another trust.
(2) A trustee of a trust shall disclose to his co-trustees any
interest which he has
as trustee of another trust if any transaction in relation to the former
trust is to be
entered into with the trustees of the other trust.

36. Dealings with third parties
(1) Notwithstanding any enactment, where, in a transaction or m
atter affecting a
trust, a trustee informs a third party that he is acting as trustee, a c
laim by the third
party in respect of the transaction or matter shall, subject to subsecti
on (3), extend
only to the trust property.
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(2) If the trustee fails to inform the third party that he is a
cting as trustee he shall
–
(a) incur personal liability to the third party in respect of the tran
saction or
matter; and
(b) have a right of indemnity against the trust property in respect of
his
personal liability, unless he acted in breach of trust.
(3) A bona fide purchaser for value without notice of a breach
of trust –
(a) may deal with a trustee in relation to trust property as if the tr
ustee were the
beneficial owner of the property; and
(b) is not affected by the trusts on which the property is
held.
(4) A third party paying or advancing money to a trustee is not
concerned to see
that –
(a) the money is needed in the proper exercise of the trust functions;

(b) no more than is needed is raised; or
(c) the transaction or application of the money is proper.
(5) In this section “third party’ means a person other than a s
ettlor, enforcer,
protector, trustee or beneficiary of the trust.
PART V – DUTIES OF TRUSTEES

37. Fiduciary duties
(1) A trustee shall in the exercise of his functions, observe t
he utmost good faith
and act –
(a) with due diligence;
(b) with care and prudence; and
(c) to the best of his ability and skill.
(2) Subject to this Act, a trustee shall execute and administer
the trust, and
exercise his functions –
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(a) in accordance with the terms of the trust;
(b) only in the interest of the beneficiaries or in fulfilment of the
purpose of the
trust.
(3) A trustee shall not use or deal with trust property for his
own profit or for any
purpose not connected with the trust.

(4) A trustee shall not –
(a) derive, directly or indirectly, any profit from his trusteeship;
(b) cause or permit any other person to derive such profit;
or
(c) on his own account enter into any transaction with his co-trustees
, or
relating to the trust property, which may result in any such profit exce
pt-
(i)
with the approval of the Court;
(ii)
as permitted by this Act; or
(iii) as expressly provided by the terms of the trust.

38. Duty relating to trust property
(1) Subject to this Act and to the terms of the trust, a truste
e shall preserve and
enhance so far as is reasonable, the value of the trust property.
(2) A trustee shall take all such steps as may be reasonably re
quired with due
regard to the nature and amount or value of the property, for the posses
sion of all
outstanding trust property and for the preservation of the trust propert
y and the
assertion or protection of the title to it.
(3) A trustee shall keep updated and accurate accounts and reco
rds of his
trusteeship.
(4) A trustee shall keep trust property separate from his own p
roperty and
separately identifiable from any other property of which he is the trust
ee.

39. Duty to act together
(1) Subject to the terms of the trust, where there is more than
one trustee, all the
trustees shall join in performing the trust.
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(2) Subject to subsections (3) and (4), where there is more
than one trustee, no
functions given to the trustees shall be exercised unless all the truste
es agree on its
exercise.
(3) The terms of a trust may empower the trustees to act indivi
dually or by a
majority with respect to the exercise of some or all of the functions co
nferred on the
trustees or to delegate the exercise of these functions to one or more t
rustees.
(4) A trustee who dissents from a decision of the majority may
require his
dissent to be recorded in writing.

40. Duty to act impartially
(1) Where a trust has more than one beneficiary, or more than o
ne purpose, the
trustees, subject to the terms of the trust and to subsection (2), sha
ll be impartial and
shall not execute the trust for the advantage of one at the expense of a
nother.
(2) Subsection (1) does not prejudice the exercise of a discr
etion conferred upon
a trustee by the terms of the trust.
PART VI – GENERAL POWERS OF TRUSTEES

41. Powers of trustees
(1) Subject to his duties under this Act and to the terms of th
e trust, a trustee
has, in relation to the trust property, all the powers of a beneficial o
wner.
(2) A trustee shall exercise his powers only in the interests o
f the beneficiaries
or of the purpose for which the trust is established and in accordance w
ith the terms
of the trust.

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

42. Consultation by trustees
(1) A trustee may consult professional persons in relation to t
he affairs of the
trust.
(2) The terms of the trust may require a trustee to consult or
obtain the consent
of another person before exercising any function.
(3) A person shall not, by virtue of being so consulted or givi
ng or refusing such
consent, be deemed to be a trustee.
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43. Delegation by trustees
(1) A trustee shall not delegate his functions unless permitted
to do so by this
Act or by the terms of the trust.

(2) Unless otherwise provided by the terms of the trust, a
trustee may –
(a) delegate the management of trust property to, and appoint, investm
ent
managers whom the trustee reasonably considers to be competent and
qualified to manage the investment of the trust property;
(b) appoint accountants, lawyers, bankers, brokers, custodians, invest
ment
advisers, nominees, property agents; and other professionals to act in r
elation
to any of the affairs of the trust or to hold any of the trust property;
or
(c) authorise any of the persons referred to in paragraphs (a) and (
b) to retain
or to receive any commission or other payment usually payable for such
services rendered.
(3) A trustee shall not be liable for any loss to the trust ari
sing from a delegation
or appointment under subsection (2) or from the default of any such de
legate or
appointee where the trustee exercised the standard of care of a reasonab
le land
prudent man of business in –
(a)
the selection of the delegate or appointee;
(b)
the supervision of the activities of the delegate or appointee.
44.
Remuneration of trustees

(1) Subject to –
(a)
the terms of the trust;
(b)
an order of the Court,
a trustee shall be entitled to remuneration for his services.
(2) A trustee shall be entitled to be reimbursed out of the tru
st property for all
expenses and liabilities properly incurred by him in connection with th
e trust.

45. Power to appropriate

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Subject to the terms of the trust, a trustee may, without the consent of
any beneficiary,
appropriate trust property in or towards satisfaction of the interest of
a beneficiary in such
manner and in accordance with such valuation as he thinks fit.

46. Accumulation and advancement
(1) Subject to the terms of the trust and subject to any prior
interests or charges
affecting the trust property, where a beneficiary is a minor and his int
erest –
(a) is a vested interest; or
(b) is an interest which will become vested –
(i)
on attaining the age of majority; or
(ii) at any later age; or
(iii) upon the happening of any event, the trustee may –
(A) accumulate the income attributable to the interest of such
beneficiary pending the attainment of the age of majority or such
later age or the happening of such event;
(B) apply such income or part of it to or for the maintenance,
education or other benefit of such beneficiary;
(C) advance or appropriate to or for the benefit of any such
beneficiary such interest or part of such interest.
(2) The receipt of a parent or the lawful guardian of a benefic
iary who is a minor
shall be a sufficient discharge to the trustee for a payment made under
subsection
(1).
(3) Subject to the terms of the trust and subject to any prior
interests or charges
affecting the trust property, the trustee may advance or apply for the b
enefit of a
beneficiary part of the trust property prior to the date of the event up
on the
happening of which the beneficiary becomes entitled absolutely to the pr
operty.
(4) Any part of the trust property advanced or applied under pa
ragraph (3) shall
be brought into account in determining from time to time the share of th
e beneficiary
in the trust property.
(5) No part of the trust property advanced or applied under par
agraph (3) shall
exceed the presumptive, contingent or vested share of the beneficiary in
the trust
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property.

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

48. Power of revocation
(1) A trust and any exercise of a power under the trust may be
expressed to be
capable of –
(a)
revocation, in whole or in part; or
(b)
variation.
(2) No revocation or variation shall prejudice anything lawfull
y done by a trustee
in relation to the trust before he receives notice of the revocation or
variation.
(3) Subject to the terms of the trust, where the trust is revok
ed in whole or in
part, the trustees shall hold the trust property, or part of the trust p
roperty which is
subject of the revocation, as the case may be, in trust for the settlor
absolutely or, if
he is dead, for his heirs and succession as if it had formed part of his
estate at the
time of his death.

49. Permitted investments
(1) Subject to subsection (2), the terms of a trust may autho
rise the trustees to
invest trust property in securities and investments with or without cond
itions or
restrictions.
(2) The powers of investment conferred by the terms of a trust
do not derogate
from the duties imposed on trustees under this Act.
PART VII – BREACH OF TRUST

50. Liability for breach of trust
(1) Subject to this Act and to the terms of the trust, a truste
e who commits or
concurs in a breach of trust shall be liable for –
(a) any loss or depreciation in value of the trust property resulting
from the
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breach; and
(b) any profit which would have accrued to the trust had there been no
breach.
(2) A trustee may not set off a profit accruing from one breach
of trust against a
loss or depreciation in value resulting from another.
(3) A trustee shall not be liable for a breach of trust committ
ed by another
person prior to his appointment or for a breach of trust committed by hi
s co-trustee
unless –
(a) he becomes or ought to become aware of the breach; and
(b) he actively conceals the breach, or fails within a reasonable time
to take
proper steps to protect or restore the trust property or to prevent the
breach.
(4) Where trustees commit a breach of trust, they shall be liab
le jointly and
severally.
(5) A trustee who becomes aware of a breach of trust shall take
all reasonable
steps to have the breach remedied.
(6) Nothing in the terms of a trust shall relieve a trustee of
liability for a breach of
trust arising from his own fraud, wilful misconduct, or gross negligence
.

51. Relief by beneficiary

(1) Subject to subsection (2), a beneficiary may –
(a) relieve a trustee of liability to him for a breach of t
rust;
(b) indemnify a trustee against liability for a breach of t
rust;

(2) Subsection (1) shall not apply if the beneficiary –
(a)
is a minor or a person under legal disability;
(b)
does not have full knowledge of all material facts; or
(c) is improperly induced by the trustee to act under subsection (1)
.

52. Relief by Court
(1) The Court may relieve a trustee wholly or partly of liabili
ty for a breach of
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trust, where it appears to the court that the trustee –
(a)
has acted honestly and reasonably; and
(b)
ought fairly to be excused –
(i) for the breach of trust;
(ii) for omitting to obtain the directions of the Court in the matter
in which
the breach arose.
(2) Where a trustee commits a breach of trust at the instigatio
n, at the request or
with the concurrence of a beneficiary, the Court may, whether or not the
beneficiary
is a minor or a person under legal disability, order –
(a) the defaulting beneficiary to indemnify the trustee in respect of
the
consequences of the breach of trust; and
(b) the trustee to appropriate any part of the interest accruing to th
e,
beneficiary for that purpose.
PART VIII – CONSTRUCTIVE TRUST AND TRACING

53. Constructive trust
(1) A person holding any fiduciary obligations who –

(a)
derives a profit from a breach of his fiduciary duties; or
(b) obtains property as a result of such a breach,
shall be deemed to be a trustee of the profit or property for the person
to whom
the duties are owed.
(2) A trustee who- (a) derives a profit from a breach of trust; or
(b) obtains property as a result of such a breach,
shall be deemed to be a trustee of the profit or property for the benefi
ciary of the
trust.

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(3) Without prejudice to any other remedy provided by law, the
person referred
to in subsection (1) to whom fiduciary duty is owed, or the beneficiar
y referred to in
subsection (2), may apply to the Court for an order that the profit or
property
obtained from the breach of fiduciary duties or of trust be traced and r
ecovered to
him.
(4) A person shall not be liable for breach of trust or of fidu
ciary duty under this
section where he established that the profit or property was obtained in
good faith.
(5)
This section does not exclude any other circumstances in which a constr
uctive trust
may arise.
Amended by [
Act No. 5 of 2002] 54. Tracing
Without prejudice to the personal liability of a trustee, or a person in
breach of his fiduciary
duty, trust property which has been charged or dealt with in breach of trust or fiduciary
duty, or the property into which it has been converted, may be followed
and recovered
unless – (a)
it is no longer identifiable;
(b)
it is in the hands of a bona fide purchaser for value without notice of
the
breach of trust, or of any other defect in the title;
(c)
it has been charged in favour of a person who bona fide acquired his rig
hts
therein for value and without notice of the breach of trust or any other
defect in the
title;
(d)
a person, other than the trustee, derived his title through a bona fide
purchaser or charge holder for value without notice of the breach of tru
st or defect.
Amended by [
Act No. 5 of 2002] PART IX-FAILURE, LAPSE AND TERMINATION OF TRUST

55. Failure or lapse of interest

Subject to the terms of the trust and to any order of the Court,
where –
(a)
an interest lapses;
(b)
a trust terminates;
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(c) there is no beneficiary and no person who can become a bene
ficiary in
accordance with the terms of the trust; or
(d) property is vested in a person otherwise than for his sole
benefit, but the
trust upon which he is to hold the property is not declared or communica
ted to him,
the interest or property concerned shall be held by the trustees in trus
t for the settlor
absolutely or, if he is dead, for his heirs and successors as if it form
ed part of his estate at
the time of his death.

56. Termination of trust
(1) On the termination of a trust, the trust property shall, su
bject to subsection
(2), be distributed by the trustees within a reasonable time in accord
ance with the
terms of the trust to the persons entitled to it.
(2) The trustees may retain sufficient assets to make reasonabl
e, provision for
liabilities (existing, future, contingent or otherwise).

57. Termination by beneficiaries
(1) Notwithstanding anything in the terms of the trust, a trust
shall terminate
where the beneficiaries who all –
(a) are in existence and have been ascertained;
(b) are persons of full age with no legal disability orincapacity; and
(c)
are in unanimous agreement so to do,
require by notice the trustee to terminate the trust.
(2) Where a trust is terminated under subsection (1), the tru
stee shall distribute
the trust property as the beneficiaries may direct.

58. Termination by Court
On the application of any person having an interest in the trust, the Co
urt may –
(a) direct the trustees to distribute, or not to distribute, th
e trust property; or
(b) make such other order in respect of the termination of the
trust and the
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distribution of the property as it thinks fit.

59. Termination or variation of a charitable trust

(1) Where trust property is held for a charitable purpose a
nd-
(a)
the purpose has been, as far as may be, fulfilled;
(b)
the purpose cannot be carried out at all, or not according to the
directions given and to the spirit of the gift;
(c) the purpose provides a use for part only of the property;
(d) the property, and other property applicable for a similar purpose,
can be
more effectively used in conjunction, and to that end can more suitably
be
applied to a common purpose;

(e) the purpose was laid down by reference to an area which was then
, but
has since ceased to be, a unit for some other purpose, or by reference t
o a
class of persons or to an area which has for any reason since ceased to
be
suitable or to be practicable in administering the gift;
(f) the purpose has been adequately provided for by other m
eans;
(g)
the purpose has ceased to be charitable (by being useless or harmful
to the community or otherwise); or
(h)
the purpose has ceased in any other way to provide a suitable and
effective method of using the property,
the property, or the remainder of the property, as the case may be, shal
l be held for
such other charitable purpose, as the Court, on the application of the A
ttorney-
General, the trustee or the enforcer, may declare to be consistent with
the original
intention of the settlor.
(2) Where trust property is held for a charitable purpose, the
Court, on the
application of the Attorney-General, the trustee or the enforcer, may ap
prove any
arrangement which varies or revokes the powers or terms of the trust or
enlarges or
modifies the purposes of management or administration of the trustee, if
it is
satisfied that the arrangement –

(a) is now suitable or expedient; and
(b) is consistent with the original intention of the settlo
r.
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PART X – APPLICATION TO FOREIGN TRUST

60. Enforceability of foreign trust
(1) Subject to subsection (2), a foreign trust is governed by
, and shall be
interpreted in accordance with, the terms of the trust and its proper la
w.
(2) A foreign trust shall not be enforceable in Mauritius to th
e extent that –
(a) it purports to do anything which under the law of Mauritius is an
offence;
(b) it confers or imposes any right or function the exercise or discha
rge of
which under the law of Mauritius is an offence;
(c)
it is immoral or contrary to public policy; or
(d) it purports to apply directly to immovable property situated in Ma
uritius.
61.
Proper law
(1)
Subject to subsection (2), the proper law of a trust shall be-
(a)
the law expressed by the terms of the trust or intended by the settlor t
o
be the proper law;
(b)
where no such law is expressed or intended, the law with which the
trust has its closest connection at the time of its creation; or
(c)
where the law expressed by the terms of the trust or intended by the
settlor to be the proper law, or the law with which the trust has its cl
osest
connection at the time of its creation does not provide for trusts or th
e category
of trusts involved, the proper law of the trust shall be the law of Maur
itius.
(2) In ascertaining the law with which a trust has its closest
connection,
reference shall be made in particular to –
(a) the place of administration of the trust designated by the settlor
;
(b) the situs of the assets of the trust,
(c) the place of residence or business of the trustee;
(d) the objects of the trust and the places where they are to be ful
filled.
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PART XI – POWERS OF COURT

62. Application to Court
A trustee may apply to the Court for directions as to how he should or m
ight act in any of
the affairs of the trust, and the Court may make such order as it thinks
fit.

63. General powers of Court
(1) On the application of any person having an interest in the
trust, the Court
may –
(a)
make an order in respect of –
(i) the execution, administration or enforcement of a trust;

(ii) a trustee, including an order as to the exercise any functions o
f the
trustee, the appointment or the removal of a trustee, the remuneration o
r
conduct of a trustee, the keeping and submission of accounts, and the
making of payments whether into court or otherwise;
(iii) a beneficiary, or any other person connected with a trust; or
(iv) any trust property, including an order as to the vesting, preserv
ation,
application, surrender or recovery thereof;
(b) make a declaration as to the validity or enforceability of a trust
; or
(c) rescind or vary an order or declaration under this Act, or make a
new or
further order or declaration.

(2) Where the Court appoints or removes a trustee under thi
s section –
(a) it may impose such requirements and conditions as it thinks fit, i
ncluding
requirements and conditions as to the vesting of trust property;
(b) subject to the court’s order, a trustee appointed by the Court sha
ll have the
same functions, and may act in all respects, as if he had been originall
y
appointed a trustee.

64. Powers of Court in case of default
Where a person does not comply with an order of the Court or the Judge i
n Chambers
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under this Act requiring him to do any thing, the Court may, without pre
judice to any action
for contempt of Court, order on such terms and conditions as it thinks f
it, that the thing be
done by another person, nominated for the purpose by the Court or the Ju
dge, at the
expense of the person in default (or otherwise, as the Court directs),
and a thing so done
shall have effect in all respects as if done by the person in default.
65.
Payment of costs
The Court may order the costs and expenses of, and incidental to an appl
ication to the
Court under this Act to be paid from the trust property or in such other
manner and by such
persons as it thinks fit.

66. Variation of trust
(1) The Court, on the application of any person having an inter
est in the trust on
behalf of –
(a) a minor or a person under legal disability having, directly or ind
irectly, an
interest, vested or contingent, under a trust;
(b) any person unborn;
(c) any person, ascertained or not, who may become entitled, directly
or
indirectly, to an interest under a trust, as being
(at a future date or on the happeni
ng of a future event) a person of any specified description or a member of a
specified class; or
(d) any person, in respect of an interest that may accrue to him by v
irtue of the
exercise of a discretionary power on the failure or determination of an
existing
interest,
may, subject to subsection (2), approve any arrangement which varies p
owers or
revokes the terms of a trust or enlarges or modifies the powers of manag
ement or
administration of any trustees, whether or not there is another person w
ith a
beneficial interest who is capable of assenting to the arrangement.
(2) The Court shall not approve an arrangement on behalf of a p
erson
mentioned in subsection (1)(a), (b) or (c) unless the arrangemen
t
appears to be for his benefit.

67. Approval of transactions
Where, in the management or administration of a trust, a transaction is,
in the opinion of
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the Court, expedient, but cannot be effected because the necessary power
is not vested in
the trustees by the terms of the trust or by law, the Court may, on the
application of any
person having an interest in the trust –
(a) confer upon the trustees, generally or in any particular ci
rcumstances, the
necessary power, on such terms and subject to such conditions as the cou
rt thinks
fit; and
(b) direct the manner in which, and the property from which, any mon
ies authorised
to be expended, and the costs of any transaction, are to be paid or born
e.
PART XII. MISCELLANEOUS

68. Limitation of actions
(1) Notwithstanding any other enactment, a period of limitation
and prescription
of 30 years shall apply to an action brought by a person having an inter
est against a
trustee –
(a) in respect of any fraud to which the trustee was a party or was pr
ivy; or
(b) to recover from the trustee trust property or the proceeds thereof
–
(i) held by or vested in him or otherwise in his possession or under h
is
control; or
(ii) previously received by him and converted to his use.
(2) Notwithstanding subsection (1), the period within which a
n action founded on
breach of trust may be brought against a trustee by a beneficiary is –
(a) 2 years from delivery of the final accounts of the trust to the be
neficiary; or
(b) 2 years from the date on which the beneficiary first has knowledge
of the
breach of trust,
whichever period first begins to run.
(3) Where the beneficiary is a minor or a person under legal di
sability, the period
referred to in subsection (2) does not begin to run until his minority
or disability, as
the case may be, ceases.

69. Rules of Court

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The Chief Justice may, after consultation with the Rules Committee and t
he Judges, make
such rules as he thinks fit –
(a) with respect to proceedings, practice and procedures of the
Supreme Court
in connection with any matter, cause and application under this Act;
(b) generally with respect to applications for directions under
this Act.

70. Regulations
(1) The Minister may make such regulations as he thinks fit for
the purposes of
this Act.
(2) The regulations under subsection (1) may provide for the
taking of fees and
levying of charges.

71. Transitional provisions
(1) Subject to the other provisions of this section, a trust wh
ich immediately
before the coming into force of this Act is valid, in existence and regi
stered under an
enactment repealed by section 73, shall continue to be valid and shall b
e governed
by the applicable enactment as if it has not been repealed.
(2) Any act made, any authorisation given or any registration e
ffected in
connection with a trust under an enactment which is repealed under secti
on 73, shall
be deemed, where required under this Act, to have been made, given or ef
fected
under this Act.
(3) Any register kept under any provision of an enactment repea
led by section
73 shall be deemed to be part of the register kept under the correspondi
ng provision
of this Act.
(4) Any person having an interest in it trust to which an enact
ment referred to in
section 73 is applicable immediately before the coming into force of thi
s Act, may
apply to the Court for any variation of the terms of the trust rendered
necessary as a
result of the coming into force of this Act, and the Court shall make su
ch order as it
thinks just.
(5) Where by the effect of a choice of law provided in a trust
instrument made
before the coming into force of this Act, a trust is to be governed by t
he laws of
Mauritius, the trust shall be governed by this Act.

72. Consequential amendments

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(1) The Code is amended in –
(a) article 543, by adding after the existing paragraph the following
new
paragraph –
“Les biens peuvent aussi faire l’objet d’une affectation particulière
par effet de
la fiducie suivant les dispositions du Titre Deuxième Bis du Livre Tr
oisième et
du Trusts Act 2001.”
(b) article 711, by adding after the words “par donation entre-vifs ou

testamentaire,” the following words –
“par effet de la fiducie,”
(c) article 893, by deleting the word “On” and replacing it by the fol
lowing
words –
“A l’exception des transferts ou detentions des biens à titre fiducia
ire; on”
(d) article 897, by adding –
(i)
after the words “présent titre”, a comma;
(ii) immediately after the newly inserted comma, the following words –
“et les transferts ou dispositions de biens à titre fiduciaire”
(e) article 900-1, by adding after the figure ” 1074″, the following w
ords –
“et du Trusts Act 2001”
(f) in Livre Troisième, by adding after article 1100, the new Titre
Deuxième –
Bis as follows-
TITRE DEUXIEME – BIS
De la fiducie
Article 1100 – 1 Est appelée fiducie – ou trust – l’ensemble de droits
et d’obligations dont fait l’objet un patrimoine (le “bien fiduciaire”)

qui est affecté dans l’intérêt des bénéficiaires ou dans
un but
déterminé, et qu’une personne (le “fiduciaire”) s’oblige à dé
tenir,
gérer et administrer suivant cette affectation.

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La fiducie résulte d’un acte juridique, ou d’un jugement, ou dans
certains cas par effet de la loi. Par dérogation aux articles 893, 89
6
et 1130, elle peut être créée à titre onéreux ou à tit
re gratuit ou par
testament.
Article 1100 – 2 Le bien fiduciaire formé de biens et de droits
transférés en fiducie, constitue un patrimoine d’affectation
autonome et distinct de celui du constituant, du fiduciaire ou du
bénéficiaire, sur lequel aucun d’entre eux n’a de droit réel.
En cas de décès du fiduciaire, les biens et droits objet de la fid
ucie
ne font pas partie de sa succession. En cas de dissolution d’ une
personne morale fiduciaire, les biens et droits objet de la fiducie ne
font pas partie de l’actif partageable ou transmissible à titre
universal.

Sans préjudice des droits des créanciers du constituant titulaires

d’un droit de suite attaché à une sureté constituée antér
ieurement
au contrat de fiducie et hors le cas de fraude aux droits des
créanciers du constituant, les biens transférés au fiduciaire n
e
peuvent être saisis que par les titulaires de créances nées de
la
conservation ou de la gestion de ces biens par le fiduciaire.

Article 1100 – 3 Sous réserve de cc qui suit, les biens fiduciaires
ne sauront être imputé à la quotité disponible ou sujet au
rapport
du moment où les biens sont mis en fiducie.
Toutefois la fiducie ne peut porter atteinte aux droits des héritiers

du constituent lorsqu’au jour de son décès, celui-ci est de
nationalité mauricienne ou domicilié à Maurice. Ou encore les
héritiers peuvent faire valoir leurs droits au rapport portant sur un

immeuble sis à Maurice et faisant partie des biens fiduciaires. Les
dispositions énoncées dans les articles 1100 – 4 et 1100 – 5 fixen
t
les règles d’ application de ces droits.
Article 1100 – 4 Si, lors du décès du constituant, la valeur des
biens et droits transférés au fiduciaire excède la quotité d
isponible,
la fiducie est réductible suivant les règles applicables aux
donations entre vifs, sous particularités qui suivent.
La valeur des biens et droits transférés au fiduciaire s’impute su
r la
rèserve ou sur la quotité disponible de la succession du constitua
nt
selon les distinctions opérées aux articles 864 et 865.

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L’action en réduction est exercée contre lebénéficiaire lorsque les biens et droits lui ont été transmi
s et contre
le fiduciaire dans le cas contraire. La réduction du bien fiduciaire
peut toujours être faite en valeur.
Article 1100 – 5 Pour l’application de l’article 922 du présent
Code, il est tenu compte, après en avoir déduit les dettes, de la
valeur et de l’état des biens fiduciaires au jour du décès du
constituant s’ils n’ont pas été transmis au bénéficiaire. Po
ur les
biens transmis au bénéficiaire, il est tenu compte de leur état
au
jour de cette transmission et de leur valeur au jour du décès du
constituant. Si les biens ont été aliénés par le bénéf
iciaire, il est
tenu compte de leur valeur à l’époque de l’aliénation et, s’il
y a
subrogation, de la valeur des nouveaux biens au jour du décès du
constituant.
Pour l’application de l’article 923, il est tenu compte, pour les biens
transmis au bénéficiaire, de la date à laquelle la désignati
on de
ces derniers a été fixée; et de la date du décès du const
ituent pour
les biens qui n’ont pas encore été transmis aux bénéficiaire
s.
Article 1100 – 6 Sous réserve des dispositions précitées, la
fiducie est régie par le Trusts Act 2001 ou toute autre loi
particulière.

(2) The Income Tax Act 1995 is amended –
(a)
in section 2 –
(i) in the definition of “charitable trust”, by deleting the words “Tr
usts Act
1989” and replacing them by the words “Trusts Act 2001 “;
(ii) by deleting the definition of “trust’ and replacing it by the fo
llowing
definition-“trust” means a trust recognised under the laws of Mauritius;
(b) by deleting section 46 and replacing it by the followin
g section –
46. Trusts
(1) Subject to section 7 and subsections (2) and (3) of this secti
on,
every trust shall be liable to income tax on its chargeable income
at the rate specified in Part III of the First Schedule.
(2) A trust of which –
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(a) the settlor is a non-resident; and
(b) all the beneficiaries appointed under the terms of the trust
are, throughout an income year, non-resident, or hold a
Category 1 Global Business Licence or a Category 2 Global
Business Licence under the Financial Services Development
Act 2001,

shall be liable to income tax on its chargeable income at the
rate specified in Part II of the First Schedule.
(3) Where a trust which qualifies under subsection (2) deposits a
declaration of non-residence for any income year with the
Commissioner within 3 months after the expiry of the income year,
it shall be exempt from income tax in respect of that income year.
(4) The chargeable income under subsections (1) and (2) shall be
the difference between –
(a) the net income derived by the trust; and
(b) the aggregate amount distributed to the beneficiaries
under the terms of the trust.
(5) Any amount distributed to the beneficiaries under the terms of
the trust shall be deemed to be a charge under section 10(l)(d) and
shall be liable to income tax in the hands of the beneficiaries.
(6) Notwithstanding subsection (5), a non-resident beneficiary of a

trust shall be exempt from income tax in respect of his income
under the terms of the trust.
(c) in section 116, in subsection (1), by adding immediately after t
he word
“trust”, the words “other than a trust to which section 46(3)applies”;
(d) in section 119, in subsection (1), by adding immediately after t
he word
“trust”, the words “other than a trust to which section 46(3)applie
s”;

(3) The Land (Duties and Taxes) Act 1984 is amended –

(a) in section 2 –

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(i) in the definition of “deed of transfer” –
(A) in paragraph (a)(ii), by deleting the words “under the Trust A
ct
1989” and replacing them by the words “under the Trusts Act2001”;
(B) in paragraph (b), by adding after subparagraph (vi), the
following new subparagraph –
(vii) An instrument witnessing the distribution of a trust
property by a trustee under the terms of a trust to a
beneficiary other than a distribution to a beneficiary who is a
heir or successor of the settlor;
(ii) in the definition of “property”, in paragraph (b), by adding af
ter
subparagraph (v), the following new subparagraph –
(vi) any immovable property distributed by a trustee under the
terms of a trust to any beneficiary of that trust;
(iii) in the definition of “transferor”, by adding after paragraph (f
), the
following new paragraph –
(g) in the case of a distribution of an immovable property by a
trustee to a beneficiary under the terms of a trust other than a
distribution to a beneficiary who is a heir or successor of the settlor;
(b)
in section 4 –
(i) in subsection (1), by adding after paragraph (c), the followin
g new
paragraph (d), the full stop at the end of paragraph (c) being delet
ed by a
semi-colon –
(d) in the case of a distribution of an immovable property by a
trustee to a beneficiary under the terms of that trust, the value of
the immovable property so distributed.

(ii) in subsection (3) –
(A) by adding after paragraph (c), the following new paragraph (d)
,
the existing comma being deleted and replaced by a semi-colon –
(d) where property is distributed by a trustee under the terms
of a trust to any beneficiary of that trust,
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(B) by deleting the existing provisions appearing immediately after
the new paragraph (d) and replacing them by the following new
provisions the deed witnessing such attribution or distribution shall
be deemed to constitute sufficient evidence for the purposes of
subsection (1) that the property has duly been transferred to that
shareholder, partner or beneficiary, as the case may be, on the
date the attribution or distribution takes place”.

(4) The Registration Duty Act is amended –

(a) in section 2 –
(i) deleting in the definition of “charitable trust” the words “Trusts

Act 1989” and replacing them by the words “Trusts Act 2001”;
(ii) by inserting in their appropriate alphabetical order, the followi
ng
new definitions –
“settlor” has the same meaning as in the Trusts Act 2001;
“trust” has the same meaning as in the Trusts Act 2001;
(b) in the First Schedule –
(i) in Part II, by adding after item 30, the
following new item –
31. Any instrument creating a trust or an instrument
witnessing the addition of a property to a trust property.
(ii) in Part III, by adding after item 11, the following
new item –
12. Any instrument witnessing the distribution of a
property of a trust by a trustee under the terms of a
trust to any beneficiary other than a distribution to a
beneficiary who is a heir or successor of the settlor.

73. Repeal

The following Acts are repealed –

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(a) The Trusts Act 1989;

(b) The Trust Companies Act 1989; and

(c) The Offshore Trusts Act 1992.

Related documents:
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