ACT No. XIII of 2004 AN ACT to amend the Trusts Act, Cap. 331 BE IT ENACTED by the President, by and with the advice and consent of the House of Representatives, in this present Parliament assembled and by the authority of the same, as follows>-
Table of Provisions (92)
Statutory Text (92 Articles)
I assent.
E DWARD F ENECH A DAMI
(L.S.)
President
23rd November, 2004
ACT No. XIII of 2004
AN ACT to amend the Trusts Act, Cap. 331
BE IT ENACTED by the President, by and with the advice and
consent of the House of Representatives, in this present Parliament
assembled and by the authority of the same, as follows>-
PART I
(1) The short title of this Act may be cited as the Trusts Short title and
commencement.
(Amendment) Act, 2004 and this Part shall be read and construed as
one with the Trusts Act, hereinafter referred to as “the principal Act”.
(2) This Part shall come into force on such date as the
Minister responsible for finance may, by notice in the Government
Gazette, appoint, and different dates may be so appointed for different
provisions and different purposes thereof.
(Article 34)
“SCHEDULE
(Articles 2 and 5A)
CONVENTION ON THE LAW APPLICABLE TO TRUSTS AND ON
THEIR RECOGNITION
CHAPTER 1- SCOPE
Article l
This Convention specifies the law applicable to trusts and governs their recognition.
Article 2
For the purposes of this Convention, the term “trust” refers to the legal relationship
created - inter vivos or on death - by a person, the settlor, when assets have been placed
under the control of a trustee for the benefit of a beneficiary or for a specified purpose.
A trust has the following characteristics>
(a) the assets constitute a separate fund and are not a part of the trustee’s
own estate<
(b) title to the trust assets stands in the name of the trustee or in the name
of another person on behalf of the trustee<
(c) the trustee has the power and the duty, in respect of which he is
accountable, to manage, employ or dispose of the assets in accordance with the
terms of the trust and the special duties imposed upon him by law. The reservation
by the settlor of certain rights and powers, and the fact that the trustee may himself
have rights as a beneficiary, are not necessarily inconsistent with the existence of
a trust.
Article 3
The Convention applies only to trusts created voluntarily and evidenced in writing.
Article 4
The Convention does not apply to preliminary issues relating to the validity of
wills or of other acts by virtue of which assets are transferred to the trustee.
A
Article 5
The Convention does not apply to the extent that the law specified by Chapter II
does not provide for trusts or the category of trusts involved.
CHAPTER II - APPLICABLE LAW
Article 6
A trust shall be governed by the law chosen by the settlor. The choice must be
express or be implied in the terms of the instrument creating or the writing evidencing
the trust, interpreted, if necessary, in the light of the circumstances of the case. Where
the law chosen under the previous paragraph does not provide for trusts or the category
of trust involved, the choice shall not be effective and the law specified in Article 7
shall apply.
Article 7
Where no applicable law has been chosen, a trust shall be governed by the law
with which it is most closely connected. In ascertaining the law with which a 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.
Article 8
The law specified by Article 6 or 7 shall govern the validity of the trust, its
construction, its effects, and the administration of the trust.
In particular that law shall govern -
(a) the appointment, resignation and removal of trustees, the capacity to
act as a trustee, and the devolution of the office of trustee<
(b) the rights and duties of trustees among themselves<
(c) the right of trustees to delegate in whole or in part the discharge of their
duties or the exercise of their powers<
(d) the power of trustees to administer or to dispose of trust assets, to create
security interests in the trust assets, or to acquire new assets<
(e)
the powers of investment of trustees<
(f) restrictions upon the duration of the trust, and upon the power to
accumulate the income of the trust<
(g) the relationships between the trustees and the beneficiaries including
the personal liability of the trustees to the beneficiaries<
(h) the variation or termination of the trust<
(i) the distribution of the trust assets<
(j) the duty of trustees to account for their administration.
Article 9
In applying this Chapter a severable aspect of the trust, particularly matters of
administration, may be governed by a different law.
Article 10
The law applicable to the validity of the trust shall determine whether that law or
the law governing a severable aspect of the trust may be replaced by another law.
CHAPTER III – RECOGNITION
Article 11
A trust created in accordance with the law specified by the preceding Chapter
shall be recognised as a trust. Such recognition shall imply, as a minimum, that the
trust property constitutes a separate fund, that the trustee may sue and be sued in his
capacity as trustee, and that he may appear or act in this capacity before a notary or any
person acting in an official capacity. In so far as the law applicable to the trust requires
or provides, such recognition shall imply, in particular –
(a) that personal creditors of the trustee shall have no recourse against the
trust assets<
(b) that the trust assets shall not form part of the trustee’s estate upon his
insolvency or bankruptcy<
A
(c) that the trust assets shall not form part of the matrimonial property of
the trustee or his spouse nor part of the trustee’s estate upon his death<
(d) that the trust assets may be recovered when the trustee, in breach of
trust, has mingled trust assets with his own property or has alienated trust assets.
However, the rights and obligations of any third party holder of the assets shall
remain subject to the law determined by the choice of law rules of the forum.
Article 12
Where the trustee desires to register assets, movable or immovable, or documents
of title to them, he shall be entitled, in so far as this is not prohibited by or inconsistent
with the law of the State where registration is sought, to do so in his capacity as trustee
or in such other way that the existence of the trust is disclosed.
Article 14
The Convention shall not prevent the application of rules of law more favourable
to the recognition of trusts.
CHAPTER IV - GENERAL CLAUSES
Article 15
The Convention does not prevent the application of provisions of the law designated
by the conflicts rules of the forum, in so far as those provisions cannot be derogated
from by voluntary act, relating in particular to the following matters>
(a)
the protection of minors and incapable parties<
(b) the personal and proprietary effects of marriage<
(c) succession rights, testate and intestate, especially the indefeasible shares
of spouses and relatives<
(d) the transfer of title to property and security interests in property<
(e)
the protection of creditors in matters of insolvency<
(f)
the protection, in other respects, of third parties acting in good faith.
If recognition of a trust is prevented by application of the preceding paragraph,
the court shall try to give effect to the objects of the trust by other means.
Article 16
The Convention does not prevent the application of those provisions of the law of
the forum which must be applied even to international situations, irrespective of rules
of conflict of laws.
Article 17
In the Convention the word “law” means the rules of law in force in a State other
than its rules of conflict of laws.
Article 18
The provisions of the Convention may be disregarded when their application would
be manifestly incompatible with public policy (ordre public).
Article 22
The Convention applies to trusts regardless of the date on which they were
created.”.
Passed by the House of Representatives at Sitting No. 188 of the 16th
November, 2004.
A NTON T ABONE
Speaker
R ICHARD J. C AUCHI
Clerk to the House of Representatives
Mitbug[ fl-Istamperija tal-Gvern — Printed at the Government Printing Press
Article 1 of the principal Act shall be deleted and substituted Substitution of
article 1 of the
by the following new Article>
principal Act.
“1.
This Act may be cited as the Trusts and Trustees Act.”.
Article 2 of the principal Act shall be amended as follows>-
Amendment of
article 2 of the
principal Act.
(a)
in subarticle (1) thereof>
(i) in the definition of “the Act” and wherever it appears
in the English text of the principal Act, the words “Malta
Financial Services Centre” shall be substituted by the words
“Malta Financial Services Authority” wherever they occur<
(ii) immediately after the definition of “the Act” the
following new definition shall be inserted>-
“ “approved jurisdiction” means a jurisdiction
which has been approved by the Authority for the
purposes of this Act<”<
(iii) immediately after the definition of “approved
jurisdiction” the following new definition shall be inserted>-
“ “approved person” means a person of good
reputation possessing experience and qualifications in
financial, fiduciary, accounting or legal services and
approved by the Authority as being fit and proper to carry
out the duties of a trustee<”<
(iv) immediately after the definition of “approved
person” the following new definition shall be inserted>-
“ “the Authority” means the Malta Financial
Services Authority<”<
(v) the definition of “the Centre” in the English text
shall be deleted<
(vi) immediately after the definition of “breach of trust”
there shall be added the following new definition>-
“ “charitable purpose” means any charitable and
philanthropic purpose, and without prejudice to the
generality of the aforesaid, includes in particular>
(a) the advancement of education, including
physical education and sports<
(b) the advancement of religion<
(c)
the advancement of health<
(d) social and community advancement<
(e) the advancement of culture, arts and
national heritage<
(f) the advancement of environmental
protection and improvement<
(g) the promotion of human rights,
conflict resolution and reconciliation<
but does not include a political purpose<
For the purposes of this definition “political purpose”
means the promotion of the interests of a political party
or a political candidate, whether at local, national or
international level, or to seek or oppose changes in the
law or government policy or decisions except when such
law or government policies or decisions directly concern
the achievement of charitable purposes<”<
(vii) immediately after the definition of “charitable
purpose” the following new definition shall be inserted>
“ “commercial transaction” means the following
transactions and any transactions connected or ancillary thereto>
(a) securities offerings, whether to the public
or for private placement, portfolio management and
custody of investment instruments<
(b) the securitisation of assets<
(c) the grant of real or personal security
interests including hypothecs, mortgages,
privileges, pledges and guarantees<
(d) collective investment schemes<
(e) employee benefit or retirement schemes
or arrangements<
(f) syndicated loan agreements and other
multi-creditor banking facilities<
(g) insurance policies and the payment of
proceeds thereunder<
(h) timeshare and multi-property structures, and
(i) such other commercial transactions as
may be prescribed in a Notice issued by the
Minister<”<
(viii) for the definition of “the Convention” there shall
be substituted the following new definition>-
“ “the Convention” means the Hague Convention
on the law applicable to trusts and on their recognition,
which was adopted by the Hague Conference on Private
International Law on the 20 October 1984, and which
came into force on the 1 January 1992 set out in all
material parts in the Schedule to this Act<”<
(ix)
immediately after the definition of “the
Convention” the following new definition shall be inserted>
“ “corporate trustee” means a trustee which is a
legal person wherever incorporated<”<
(x)
for the definition of “the Court” there shall be
substituted the following new definition>
“ “Court” means the Civil Court in its voluntary
jurisdiction unless otherwise indicated or unless the
context refers to any court seized of a matter in which
case it is the court where the matter arises<”<
(xi) the definition of “immovable property situated in
Malta” shall be deleted<
(xii) immediately after the definition of “foreign trust”
the following new definition shall be inserted>
“ “Malta’s international commitments” means
Malta’s commitments, responsibilities and obligations
arising out of membership of, or affiliation to, or
relationship with, any international, global or regional
organisations or grouping of countries or out of any
treaty, convention or other international agreement,
however called, whether bilateral or multilateral, to
which Malta is a party<”<
(xiii) immediately after the definition of “Malta’s
international commitments” the following new definition shall
be inserted>
“ “Maltese trust” means a trust whose proper law
is the law of Malta<”<
(xiv) the definition of “nominee company” shall be
deleted<
(xv) immediately after the definition of “Minister” the
following new definition shall be inserted>
“ “operating in Malta” means the existence of an
office, branch, or other centre of professional or
commercial activities of a regular nature in Malta and
does not include one or more unconnected and sporadic
acts<”<”
(xvi)
the definition of “qualified person” shall be
deleted<
(xvii) immediately after the definition of “property”
there shall be inserted the following new definition>-
“ “recognised investment exchange” shall have the
same meaning assigned to it by the Financial Markets
Act<”<
(xviii) immediately after the definition of “recognised
investment exchange” there shall be inserted the following
new definition>-
“ “remuneration” means any compensation or
reward for acting as a trustee to be paid out of trust
property in accordance with the terms of trust, or
otherwise, other than the reimbursement of expenses of
the trustee or the indemnification in favour of the trustee
for expenses, liabilities and other claims<”<
(xix) for the definition of “resident in Malta” there shall
be substituted the following new definition>
“ “resident in Malta” shall mean, in case of an
individual, a person whose habitual residence is in Malta
and in case of a company, a company registered in
Malta<”<
(xx) immediately after the definition of “settlor” the
following new definition shall be inserted>
“ “terms of a trust” means the written or oral terms
of a trust, expressed or implied, and any other terms made
applicable by the proper law<”<
(xxi) for the definition of “trustee” there shall be
substituted the following new definition>-
“ “trustee” in relation to property, means the person
or persons holding or in whom the property is vested on
terms of trust in accordance with the provisions of this
Act or is otherwise deemed to be a trustee under this Act<”<
(xxii) in the definition of “unilateral declaration of
trust” for the words “subarticle (2) of article 7” there shall be
substituted the words “subarticle (3) of article 7”<
(xxiii) immediately after the definition of “unilateral
declaration of trust” the following new definition shall be inserted>
“ “unit trust” means any trust established for the
purpose of, or having the effect, or providing, for
persons having funds available for investment,
facilities for the participation by them as beneficiaries
under the trust, in any profits or income arising from
the acquisition, holding, management or disposal of
any property whatsoever, being a collective
investment scheme as defined in the Investment
Services Act, 1994.”<
(b) subarticle (4) thereof shall be deleted< and
(c) subarticle (5) thereof shall be re-numbered as subarticle (4).
Article 3 of the principal Act shall be amended as follows>-
(a)
subarticle (1) shall be substituted by the following>
“(1) A trust exists where a person (called a trustee)
holds, as owner or has vested in him property under an
obligation to deal with that property for the benefit of persons
(called the beneficiaries), whether or not yet ascertained or in
existence, which is not for the benefit only of the trustee, or
for a charitable purpose, or for both such benefit and purpose
aforesaid.”< and
(b) subarticle (2) shall be substituted by the following new
subarticle (2) >
“(2) The trust property shall constitute a separate fund
owned by the trustee, distinct and separate from the personal
property of the trustee and from other property held by the
trustee under any other trust.”<
(c) immediately after subarticle (3) the following new
subarticles (4) to (6) shall be inserted<
“(4) The holding of property under trusts shall have the
following legal effects>
(a) that personal creditors of the trustee shall have
no recourse against the trust property<
(b) that the trust property shall not form part of
the trustee’s personal estate upon his insolvency or
bankruptcy< and
(c) that the trust property shall not form part of
the matrimonial property of the trustee or his spouse nor
part of the trustee’s estate upon his death.
(5) A trustee shall be entitled to appear or act in his
capacity as trustee before any court, any notary or any person
acting in an official capacity. Where the trustee desires to
register property, movable or immovable, or documents of title
to them, he shall be entitled to do so in his capacity as trustee
or in such other way that the existence of the trust is disclosed.
(6) Trusts create fiduciary obligations upon the trustee
in favour of the beneficiary of the trusts. The settlor of trusts
shall have no rights in relation to trust property except as
provided by this Act.”.
Article 5 of the principal Act shall be amended as follows>-
Amendment of
article 5 of the
(a) in subarticle (2) by the deletion of the words “the
principal Act.
Convention” and the insertion of the words “this Act” in their stead<
and
(b) in subarticle (3) by the deletion of the words “from the
law of Malta”.
Immediately after article 5 of the principal Act, there shall be Addition of new
article 5A to the
inserted a new article 5A as follows>-
principal Act.
“Applicability
5A. (1) The provisions of articles 1 to 12, 14, 15,
Convention. 16 (the first paragraph only), 17, 18 and 22 (the first paragraph
only) of the Convention as set out in the Schedule to this Act
shall have the force of law in Malta.
(2) Those provisions shall, so far as applicable,
have effect not only in relation to the trusts described in
article 2 and 3 of the Convention but also in relation to
any other trusts of property arising under the law of
another country.
(3) In Article 17 of the Convention, the reference
to a State includes a reference to any country or territory
(whether or not a party to the Convention) which has its
own system of law.
(4) Article 22 of the Convention shall not be
construed as affecting the law to be applied in relation
to anything done or omitted before the coming into force
of the Recognition of Trusts Act, 1994.
(5) Nothing in the Convention shall have any effect
on the interpretation of the laws of Malta relating to fiscal
matters.”.
Article 6 of the principal Act shall be deleted and substituted
by the following new articles 6, 6A and 6B>
6. (1) When the proper law of a trust is the law of Malta
as the chosen applicable law of the trust or as determined
in accordance with Article 7 of the Convention,
notwithstanding the provisions of any other law, the
validity of the trust, its construction, its effects and the
administration of the trust shall be governed by this Act
and other provisions of Maltese law on trusts.
(2) When the proper law of a trust is a foreign
law as the chosen applicable law of the trust or as
determined in accordance with Article 7 of the
Convention, notwithstanding the provisions of any other
law, the validity of the trust, its construction, its effects
and the administration of the trust shall be governed by
such foreign law and shall be recognised and given effect
to in Malta in accordance with the Convention and this
Act.
(3) The administration of a trust may be regulated
by a law different from the proper law of the trust.
(4) Trusts created or recognised in accordance
with this Act are not prohibited by articles 331, 757 to
761 and 1776 of the Civil Code.
(5) Article 586 of the Civil Code shall not affect
any term of a trust because it relates to the inheritance of
the settlor or because a disposition relating to property
under trusts is to take effect after the death of the settlor.
(6) Subject to the provisions of article 11 and
subarticle (7) of article 21 of this Act, when a commercial
transaction includes the appointment of a trustee to hold
property under trusts in relation to such transaction, the
trust shall operate in accordance with the express terms
of the trust instrument.
6A. (1) Subject to the provisions of subarticle (2) of
this article, in the case of a trust governed by Maltese law,
where the law of Malta contains provisions with regard to the
following matters>-
(i) the protection of minors or incapable
parties<
(ii) the personal and proprietary effects of
marriage<
(iii) succession rights, testate and intestate,
especially the indefeasible shares of spouses,
ascendants and descendants<
(iv) the transfer of title to property and security
interests in property<
(v) the protection of creditors in matters of
insolvency<
(vi) the protection, in other respects, of third
parties acting in good faith<
which cannot be derogated from by voluntary act, such laws
shall prevail over the terms of the trust unless otherwise
expressly provided in this Act or in other provisions of
applicable law relating to trusts and related matters.
(2) To the extent that there exist rules of mandatory
application the courts shall apply such mandatory rules subject
to the provisions of article 6B.
(3) When a trust is governed by Maltese law and
has no connection to Malta by reason of the domicile of the
settlor at the time of settlement of the property on trust or the
situs of the property, when immovable, the trust shall be
governed by the provisions of this Act except that the
provisions of subarticle (1) above shall not apply in any
manner. In such cases no regard shall be had to>–
(i) the domicile, habitual residence,
registration, authorisation or place of business in
Malta of the trustee or any protector or any person
rendering administration, accounting or other
services to the trustee, or
(ii) the fact that the proper law of the trust is
Maltese Law< or
(iii) the situs of property in Malta, when
movable< or
(iv) the place of execution of the deed of trust,
any documents relating to the trusts or the trust
property or other transaction documents is Malta.
(4) In the case of a foreign trust, the provisions
of subarticle (1) of this article shall only apply to such trust
when the settlor is domiciled in Malta at the time of creation
of the trust, subject always to the rules stated in article 6B of
this Act.
(5) In the case of a foreign trust, when the settlor
of such a trust is not domiciled in Malta at the time of the
creation of the trust, the provisions of this Act shall apply
only in so far as they regulate the recognition or otherwise in
Malta of the effects of such trust.
(6) To the extent that there exist rules of
mandatory application in the law applicable in the
circumstances in terms of Maltese private international law,
the courts of Malta may apply such mandatory rules subject
to the provisions of article 6B of this Act.
(7) When a court is requested to recognise a
foreign judgement which enforces any rules of mandatory
application as referred to in subarticle (6), the court may
accede to such request subject to the provisions of article 6B
of this Act.
6B. (1) In order to ensure that the provisions of
applicable law which cannot be derogated from by voluntary
act are applied in a manner which preserves the trust
relationship as far as possible, the following rules shall apply>-
(a) the application of the mandatory rules shall
not produce the failure or invalidity of the trust, and
where possible, the trust shall continue under the same
terms in relation to property which is unaffected by such
mandatory laws. Subject to any order of the court, the
affected property shall be held by the trustee in trust for
the settlor absolutely, or if he is dead, for his heirs<
(b) the trustee shall be empowered to -
(i) vary the terms of the trust in so far as relates
to the nature or the extent of benefit, or
(ii) do such acts as are necessary and legally
permissible,
so that the beneficiary derives the benefits in accordance with
the intentions expressed by the settlor in the trust instrument
in a manner compatible with the mandatory rules and any
property which becomes free from trusts for any reason shall
be held by the trustee in trust for the settlor absolutely, or if
he is dead, for his heirs<
(c) for the purposes of resolving conflicts between
the trust relationship and any mandatory provisions and
to enable the continuance of the trust as specified in
paragraphs (a) and (b) above, the terms of the trust,
where silent, shall be deemed to include>-
(i) the power, without any obligation to do so,
of the trustee to reduce the trust assets and return
all or part of them to the settlor or the estate of the
settlor so as to achieve compliance with such
provisions of law<
(ii) the power of the trustee to enter into
arbitration and mediation agreements and to reach
a compromise to disputes and claims by third
parties< and
(iii) the power to seek directions from the
Court on such matters<
such powers being exercisable notwithstanding any
contrary provisions of the trust and, provided the trustee
acts honestly, in good faith and reasonably, such acts
shall not constitute a breach of trust.
(d) the property of the settlor which is not
settled in trust should first be utilised, to the extent
possible, to meet the claims of any person seeking to
invalidate or reduce a trust<
(e) notwithstanding any other applicable law,
the trustee may meet a valid claim being made against
the trust property, whether voluntarily or as a result of a
court direction, order or judgement, by a payment of
value in money and shall not be obliged to return property
settled in trust in kind<
(f) any person who succeeds in reducing the
property under trusts or obtains a court order to invalidate
a trust in part or who enjoys the benefits of an
arrangement with the trustee as provided in paragraph
(c) above, shall forfeit the benefits under the trusts, unless
the terms of the trust expressly state otherwise or the
trustee considers it unreasonable in the circumstances
and obtains the consent of the Court to maintain in force
trusts in favour of such person subject to such conditions
as the Court may consider appropriate<
(g) in any event and notwithstanding any
provision of law, a trustee shall not be subject to an
obligation to pay or return more than the trust property
held by him under trust, after deducting any fees and
costs, and he shall not be subject to any obligation to
account for any distributions made by him in good faith
prior to having written notice of any claim.”.
Article 7 of the principal Act shall be deleted and substituted
by a new article as follows>-
7. (1) Within the meaning of article 3 of this Act, a
trust may come into existence in any manner.
(2) Without prejudice to the generality of subarticle
(1), a trust may come into existence unilaterally or
otherwise by oral declaration, or by an instrument in
writing including by a will, by operation of law or by a
judicial decision>
Provided that where assets are held, acquired or
received by a person for another on the basis of oral
arrangements of a fiduciary nature, express or implied,
there shall be presumed to be a mandate regulated by
Title XVIII of Book Second of the Civil Code or a deposit
regulated by Title XIX of Book Second of the Civil Code,
as the case may be, unless there is evidence of an
intention to create an oral trust.
(3) A unilateral declaration of trust is a declaration
in writing made by a trustee stating that it is the trustee
of a trust, containing all the terms of the trust as well as
the names or the information enabling the identification
of all the beneficiaries.
(4) A unit trust shall be created by a written instrument.”.
Article 8 of the principal Act shall be deleted and Substitution of
article 8 of the
substituted by a new article as follows>-
principal Act.
8. (1) The Courts of Malta shall have jurisdiction
where>-
(a)
the trust is a Maltese trust< or
(b) the trustee is resident in Malta or is a trustee
authorised by the Authority, or is otherwise constituted
in terms of Maltese law< or
(c)
any trust property is situated in Malta< or
(d) administration of any trust property is carried
on in Malta.
(2) Notwithstanding the provisions of the Code
of Organization and Civil Procedure, when the trust instrument
contains a provision granting jurisdiction to the courts of the
country the law of which expressly governs the trust, the
Courts in Malta shall, on demand of any party to the
proceedings, provided it is made in limine litis, stay
proceedings which may be instituted in Malta in favour of
the chosen forum>
Provided that the court may in any case issue such
interim orders for the protection of any interested party as it
considers appropriate, and provided further that the court shall
enjoy a discretion on whether to stay the proceedings if the
trust property consists of immovable property in Malta or the
settlor or the beneficiaries are domiciled and resident in Malta.
(3) Subject to the above, the provisions of Sub-title
III of Title II of Book Third of the Code of Organization and
Civil Procedure (“Of Pleas to the Jurisdiction”) shall apply.”.
Article 9 of the principal Act shall be deleted and substituted
by the following new article 9>-
9. (1) A beneficiary has an entitlement, called a
Beneficiaries
beneficial interest, in or to the trust property, as the case may
be. The beneficiary may enjoy the beneficial interest subject
to the terms of the trust and the provisions of this Act and any
other provisions of law applicable to trusts.
(2) Rights of a beneficiary are personal to him
and, subject to any applicable laws and only as stated in the
terms of the trust, creditors, spouses, heirs or legatees of the
beneficiary may have rights only to the extent of the
beneficiary’s entitlements under the trusts and have no other
rights in relation to the trust property or the trustee.
(3) The interest of a beneficiary under a trust shall
be deemed to be movable property, even if the trust property
includes immovable property.
(4) A person shall not be entitled to benefit under
a trust unless he is>–
(a)
identifiable by name< or
(b) ascertainable by reference to a class or
to a relationship to some person, whether or not
living at the time which under the terms of the trust
is the time by reference to which members of a class
are to be determined<
and if there are no beneficiaries identifiable or ascertainable
as aforesaid the trust shall, unless the purpose of the trust is a
charitable purpose, fail.
(5) Persons who are not yet conceived at the time
of the settlement of property under trusts may be named as
beneficiaries or form part of a class of beneficiaries but their
rights arise only once they are born viable.
(6) A settlor of a trust may also be a beneficiary
under the trust.
(7) The terms of the trust may provide for the
addition of a person as a beneficiary, the exclusion of a
beneficiary from benefit, or the imposition on a beneficiary
of an obligation as a condition for benefit.
(8) When the trustee is granted the power to add
a person as a beneficiary such power shall be valid on
condition that such person is identifiable by name or forms
part of a class of persons the members of which are reasonably
individually identifiable, such identification to be given either
in the trust instrument or in any other written instrument,
signed by the settlor, whether binding or not on the trustee.
(9) A person who may be added as a beneficiary in
terms of a power granted to the trustee shall not enjoy any
rights in relation to the trust property or against the trustee
and shall not be considered a beneficiary in any manner until
appointed as a beneficiary by the trustee.
(10) It shall be lawful for a trustee to be granted the
discretion as to which beneficiaries are to benefit, the quantity
of any benefit, at what time and in what manner beneficiaries
are to benefit and such other powers relating to the
appointment, application or advancement of trust property.
(11) A beneficiary in whose favour a discretion to
appoint or advance property may be exercised shall have no
rights in or to specific trust property until such time as such
discretion is exercised by the appointment, application or
advancement of such trust property in favour of such
beneficiary>
Provided that nothing in this subarticle shall be construed
as excluding the duty of the trustee to properly and fairly
consider all such beneficiaries in the exercise of his discretion.
(12) A beneficiary may, by instrument in writing,
disclaim his whole interest and such a disclaimer shall be
irrevocable.
(13) Subject to the terms of the trust, a beneficiary
may disclaim part of his interest, whether or not he has
received some benefit from his interest< in any such case, but
subject to the terms of the trust, a disclaimer may, by the
instrument by which the interest is disclaimed, be made
revocable, and shall then be capable of revocation in the
manner and under the circumstances therein mentioned or
referred to.
(14) Subject to the terms of the trust, a beneficiary
may, by instrument in writing, sell, charge, transfer or
otherwise deal with his interest in any manner.
(15) The provisions of this article shall apply to
testamentary trusts notwithstanding the provisions of articles
688, 693 and 695 and any other provisions of the Civil Code.”.
Article 10 of the principal Act shall be deleted and substituted
by the following new article>-
10. (1) Subject to the terms of the trust, a trustee may
accept the settlement of any additional property under the
same terms of the trust.
(2) The trust property shall be such property as is
settled in trust by the settlor, that subsequently added, all fruits
therefrom and property which represents the original or added
property.”.
Article 11 of the principal Act shall be amended as follows >-
(a) for the marginal note thereof, there shall be substituted
the following “Failure of a trust.”<
(b) in subarticle (1) for the words “be invalid and
unenforceable in Malta” there shall be substituted the word “fail”<
(c) by the deletion of subarticle (2) and its substitution by a
new subarticle (2) as follows>-
“(2) Trusts shall fail if any court declares that their
purpose or the terms of trust are not possible, or illegal,
immoral or contrary to public policy, or otherwise tainted by
error, fraud or violence, or any other reason which invalidates
legal acts according to the laws of Malta.”<
(d) by the deletion of subarticle (3) and its substitution by a
new subarticle as follows>-
“(3) The Court may declare the failure of all or of only
one or more purposes or terms of the trust and shall have the
power to direct that the purposes or terms which can be
properly separated from the failed purposes or terms continue
to be valid and enforceable subject to any directive it may
give.”<
(e) Immediately after subarticle (5) there shall be added a
new subarticle (6) as follows>-
“(6) Property as to which a trust has wholly or partially
failed shall, subject to any order of any court or a direction
issued in terms of article 38C, be held by the trustee in trust
for the settlor absolutely, or if he is dead, for his heirs.”.
Subarticle (2) of article 12 of the principal Act shall be Amendment of
article 12 of the
amended by the addition of “or to a unit trust” after the words “for a principal Act.
charitable purpose”.
Article 13 of the principal Act shall be amended as follows>- Amendment
article 13 of the
principal Act.
(a)
the current article should be re-numbered as subarticle
(1)<
(b) in sub-paragraph (c) of subarticle (1) as renumbered,
the words “of his creditors.” shall be substituted by the words “of
his creditors< or”<
(c) immediately following sub-paragraph (c) there shall be
added a new sub-paragraph (d) as follows >-
“(d) not liable to attachment under a garnishee order
issued against the trustee or to termination without the prior
consent of the Court, when the interest is expressed to be for
the maintenance of the beneficiary or as a pension.”< and
(d) immediately after subarticle (1) as re-numbered there shall
be added a new subarticle (2) as follows >
“(2) In the case of a testamentary trust and where the
benefit to the beneficiary consists in an annuity or pension or
the use and enjoyment of property and the enjoyment of fruits
therefrom, the terms of the trust may make the interests of
the beneficiary>-
(a)
subject to restriction on alienation or dealing<
(b) not liable to attachment under a garnishee
order served on the trustee as garnishee< or
(c) not liable to termination without the prior
consent of the Court.”.
Immediately after subarticle (3) of article 15 of the
principal Act there shall be added new subarticles (4) and (5) as
follows>-
“(4) Where trusts have been settled by more than one
settlor and are expressed to be revocable, such trusts may only be
revoked with the express consent of all settlors.
(5) Unless the terms of a trust expressly provide that the
trust is revocable or capable of variation, the settlor may not revoke
or amend the trust instrument.”.
The marginal note to article 16 of the principal Act shall
be substituted by the following>-
“Lapse of interest or termination.”.
Article 18 of the principal Act shall be amended as follows>-
(a) in subarticle (1) thereof, after the words “as may be
so provided.” there shall be added the following additional
paragraph>-
“The fact that there may not be a trustee in office at
any time shall not operate as a cause of invalidity or
termination of any trusts and in such cases the matter shall be
determined by the terms of the trust and the provisions of this
article.”<
(b) subarticle (2) shall be substituted by the following
new subarticle (2) as follows>-
“(2) A trustee may be a natural person provided he
is of full age and legal capacity and not under any legal
impediment to so act. A trustee may also be a juridical person
the objects of which include acting as a trustee.”< and
(c) immediately after subarticle (6) there shall be added
the following new subarticle (7)>-
“(7) In the case of death of a trustee, his heirs or
testamentary executor shall be bound to immediately transfer
all trust property to a successor trustee appointed in terms of
the trust instrument or by the Court. In the case of the
insolvency, dissolution or winding up of a corporate trustee,
such obligation shall be performed by any person having
authority to bind the corporate trustee being, a director,
liquidator, provisional administrator or similar functionary
and this irrespective of any proceedings or formalities
applicable upon such events. Until such time as such
obligation is performed, all persons in control of trust property
shall be obliged to preserve the trust assets and shall be bound
by fiduciary obligations towards the beneficiaries.”.
Article 19 of the principal Act shall be amended as follows>- Amendment of
article 19 of the
principal Act.
(a) subarticle (1) shall be deleted and substituted by the
following>-
“(1) No one is obliged to accept an appointment as
trustee, but if any person who is so appointed does any act or
thing in relation to the trust property consistent with the status
of a trustee of that property, such person shall be deemed to
have accepted the appointment as trustee.”< and
(b) in subarticle (2) for the words “nominee company
which” there shall be substituted the words “trustee who”.
Article 20 of the principal Act shall be amended as follows>- Amendment of
article 20 of the
principal Act.
(a) subarticle (1) shall be deleted and substituted by the
following>-
“(1) Subject to the provisions of subarticle (2) of this
article, a trustee may resign as trustee by notice in writing to
his co-trustees and in the case of there being no other trustee,
to the beneficiaries or, if impracticable, to at least one
beneficiary, or if there are none to whom notice can be given,
to the settlor or to the trustee’s duly appointed successor and
the resignation shall take effect on delivery of the aforesaid
notice.”< and
(b) paragraph (c) of subarticle (3) shall be deleted and
substituted by the following>-
“(c) steps are taken for the winding up of, or declaration
of bankruptcy, of the person acting as trustee.”.
Article 21 of the principal Act shall be amended as follows>-
(a) by the substitution of subarticle (2) with the following >-
“(2) Subject to the provisions of this Act, trustees shall
carry out and administer the trust according to its terms< and,
subject as aforesaid, the trustees shall ensure that the trust
property is vested in them or is under their control and shall,
so far as reasonable and subject to the terms of the trust,
safeguard the trust property from loss or damage>
Provided that the granting of security by assignment or
pledge as authorised by the terms of the trust is permitted>
Provided further that the transfer by the trustee of trust
property to a legal entity wholly owned or controlled, directly
or indirectly, by the trustee or to another trust of which he is
the sole trustee or to another trustee under trusts for the sole
benefit of the trustee, shall be permitted and in such case the
duties and liabilities of the trustee under this Act or the deed
of trust shall not be diminished or otherwise affected in any
manner whatsoever.”<
(b) paragraph (c) of subarticle (3) shall be substituted by
the following>
“(c) on his own account, with a person related to him by
affinity or consanguinity in the direct line or up to the third degree
in the collateral line or with a partner in any partnership, enter
into any transaction related to trust property.”<
(c)
subarticle (4) shall be substituted by the following>
“(4) Trustees shall keep accurate accounts and
records of their trusteeship and shall, upon a request by any
beneficiary, disclose such accounts and records to such
beneficiary and shall, subject to the terms of the trust, provide
a copy of such accounts within a reasonable time of a request>
Provided that it shall be lawful for a beneficiary to
suspend such rights in favour of an independent third party in
cases where the beneficiary is required to do so by any
agreement or by law as a result of any existing or potential
conflict of interest, and this for such time as the said conflict
of interest subsists and under such conditions as may be agreed
or are otherwise applicable.”< and
(d) subarticle (5) shall be amended by the substitution of
the words “identifiable therefrom.” with “identifiable therefrom>”
and the insertion of a new proviso as follows>
“Provided that trustees may, if expressly permitted by
the terms of the trust, or in any case where the trust property
consists of fungible things, place and keep trust property in a
common pool of identical assets or in a clients’ or common
account.”<
(e) immediately after subarticle (5) there shall be added new
subarticles (6) and (7) as follows>-
“(6) Trustees shall not enjoy any benefits under any
trust of which they are the sole trustee without the prior
authority of>-
(a) the Authority, in case of a trustee authorised
in terms of article 43 or not required to be authorised in
terms of subarticle (6) of article 43 of this Act< or
(b) the Court, in any other case>
Provided that in case of an express fixed trust in favour
of the trustee, only prior notification in writing to the Authority
shall be required>
Provided further that a transfer of property by the trustee
to another trust of which he is the sole trustee or sole
beneficiary, shall not be deemed to be a benefit under this
subarticle>
Provided further that remuneration for acting as a trustee
or indemnification for expenses, liabilities and other claims
shall not be treated as a benefit under a trust>
Provided further that this subarticle shall not apply to a
trustee holding property in relation to a commercial
transaction.
(7) Notwithstanding the provisions of this Act and
other provisions which cannot be derogated from by voluntary
act, when a commercial transaction includes the appointment
of a trustee to hold property in relation to such transaction,
the duties and liabilities of trustees as stated in this Act may
be varied by the terms of the trust and shall be regulated
exclusively by the express terms of the trust or any applicable
legislation>
Provided that nothing in this subarticle shall permit a
trustee to be exonerated from the effects of, or be indemnified
for, his own fraud, wilful misconduct or gross negligence.”.
Article 22 of the principal Act shall be amended as follows>-
(a) the current provision shall be re-numbered as subarticle (1)<
(b) the words “to be recorded in writing>” shall be amended
to read “to be recorded in writing.”<
(c)
the proviso to subarticle (1) shall be deleted< and
(d) immediately after new subarticle (1) as renumbered there
shall be inserted a new subarticle (2) as follows>-
“(2) Trust property shall at all times vest in the co-trustees
in possession between them pro indiviso.”.
Article 29 of the principal Act shall be amended as follows>
(a)
subarticles (2) and (3) shall be deleted<
(b) subarticle (1) shall be renumbered as subarticle (2)<
(c) subarticle (2) as renumbered shall be amended as follows>-
(i) the words “of such duty>” shall be substituted by the
words “of such duty.”< and
(ii) sub-paragraph (d) and the proviso thereto shall be deleted<
(d) a new subarticle (1) shall be inserted immediately before
subarticle (2) as renumbered>-
“(1) A trustee shall, so far as is reasonable and within a
reasonable time of receiving a request in writing to that effect,
provide full and accurate information as to the state and
amount of the trust property, including the accounts of the
trust, and subject to subarticle (2) hereof, the conduct of the
trust administration to>-
(a)
the Court<
(b) subject to the terms of the trust, the settlor<
(c)
the protector of the trust<
(d) subject to the terms of the trust, any
beneficiary of the trust who is of full age and capacity,
or if a minor, to his lawful guardian or representative<
(e) subject to the terms of the trust, any charity
referred to by name for the benefit of which the trust
was established< and
(f) in case of a trust established for a charitable
purpose, the Attorney General or the relevant authority
under applicable law.”<
(e) immediately after subarticle (2) as re-numbered, there
shall be added the following new subarticles (3) to (12)>-
“ (3) Unless the terms of the trusts expressly determine
the time when and the method how beneficiaries are to be
informed of their entitlement under a trust, the trustee shall
be obliged to inform any beneficiary of his entitlement, in
writing, within a reasonable time of his accepting to act.
(4) When the terms of the trust grant a discretion in
terms of subarticle (10) of article 9 of the Act, the terms of
the trust may suspend until such time as a discretion is
exercised in their favour the duty of the trustee to inform such
beneficiaries that they may benefit under the trust or that they
form part of a class of beneficiaries which may so benefit.
The terms of the trust may also indicate the time when and
the method of how such beneficiaries are to be informed.
(5) If the trust instrument expressly prohibits
notification of information to beneficiaries or to those persons
that form part of a class from among which beneficiaries may
be appointed, without reference to any point in time,
ascertained or ascertainable, such term shall be construed as
implying a duty of the trustee to inform such beneficiaries
within a reasonable time after the death of the settlor.
(6) Should the trustee consider providing information as
required by the preceding subarticles to be prejudicial to the
beneficiaries of the trust or any of them, the trustee may apply to
the Court and the Court may release the trustee from the obligation
to inform under such conditions as it may consider appropriate.
(7) The duty to inform as above provided shall not arise
if the trustee is in possession of information which reasonably
demonstrates that those entitled to such information have
already been informed or are already aware of such
information.
(8) In the case of a trust established for charitable
purposes, the duty to inform either unnamed beneficiaries
forming part of a class or persons forming part of a class of
persons who may be appointed as beneficiaries in terms of a
power of the trustee, shall not arise notwithstanding the terms
of the trust unless, in case of the unnamed beneficiaries the
trustee establishes that there exist less than ten beneficiaries
appertaining to such class of beneficiaries. Furthermore, in
the absence of any indication to the contrary, the unnamed
beneficiaries or persons who may be added as beneficiaries
in terms of a power shall be assumed to be persons who carry
on relevant charitable activities principally in Malta.
(9) The trustee shall carry out the duty to inform to
the best of his abilities and at the expense of the trust and in
the event it appears to the trustee that such exercise will be
too costly or burdensome, the trustee may apply to the Court
for directions and the Court shall be empowered to release
the trustee from such duty under such conditions as it considers
appropriate.
(10) The suspension of the duty of a trustee to inform
beneficiaries as provided in this article shall not reduce the
rights of beneficiaries or the duties and liability of the trustee
towards such beneficiaries in terms of this Act.
(11) Persons who may be added as beneficiaries in
terms of a power referred to in subarticle (7) of article 9 of
this Act shall have no right of information until such time as
they are appointed beneficiaries by the trustee pursuant to
such power.
(12) In the case of a trust to hold property in relation
to a commercial transaction, the duties of the trustee relating
to the provision of information and the rights of beneficiaries
to such information may be determined by the terms of trust,
in which case the preceding subarticles of this article shall
not apply.”< and
(f) the marginal note to the article shall be deleted and shall
be substituted by the following new marginal note>-
“Duty of trustee to provide information.”.
Article 37 of the principal Act shall be amended as follows >- Amendment
article 37 of the
principal Act.
(a) paragraph (b) of subarticle (2) shall be deleted and
substituted by a new paragraph (b) as follows>-
“(b) make any declaration as to the validity or
enforcement of a trust, the existence of any resulting or
constructive trust, breach of trust or failure of a trust<”
(b) in subarticle (3) thereof for the words “Attorney
General.” there shall be substituted the words “Attorney General
or by any other person having a lawful interest>”< and
(c) immediately after subarticle (3) thereof there shall be
inserted the following new proviso>
“Provided that in cases where the duty to inform a
beneficiary of his interest in a trust has been suspended in
terms of article 29 of this Act and until such suspension is in
force, and in the absence of a protector of a trust, the settlor
of a trust may also make an application to the Court in terms
of this subarticle. Whilst dealing with such application the
Court may determine whether the suspension of rights to
information as aforesaid be maintained in force in full or in
part for all or some of the beneficiaries.”.
Immediately after article 37 of the principal Act there Insertion of new
article 37A of the
shall be inserted the following new article 37A>
principal Act.
“37A. (1) Where any court makes an order on the
demand of a beneficiary who has been prejudiced as a result
of bad faith on the part of the trustee in the operation of a
trust relationship or in relation to trust property, the court
shall have the power to restore the position to what it was had
the action complained of not been taken or otherwise to protect
his interests.
(2) When a person domiciled in Malta is obliged
to pay maintenance in terms of the Civil Code and is a
beneficiary under a discretionary trust, the court shall have
such powers as are necessary to review the exercise of
discretion by the trustee and give due consideration to the
rights of persons entitled to claim maintenance.”.
Article 38 of the principal Act shall be amended as Amendment of
article 38 of the
follows>-
principal Act.
(a) subarticle (1) thereof shall be substituted by the following
new subarticle (1) as follows>-
“(1) There shall be no appeal from any decree, order,
declaration or direction of the Civil Court in its voluntary
jurisdiction given under the provisions of this Act.”<
(b) subarticle (2) thereof shall be re-numbered as subarticle (6)<
(c) immediately after subarticle (1) thereof there shall be
inserted the following new subarticles (2) to (5)>-
“(2) Such decrees, orders, declarations or directions
shall remain in force until they are substituted or varied by
the Civil Court in either its voluntary or contentious
jurisdiction.
(3) During the hearing of an application before the
Court the trustee or applicant shall at the earliest opportunity
disclose to the Court all material facts known to him which
may be relevant to the application including the existence of
any “res judicata” or pending judicial action given or
commenced in Malta or before a foreign court.
(4) All applications to the Court shall be notified to
the trustee and the applicant shall furthermore notify all
persons who he considers having an interest in the subject
matter of the application. The Court shall have the power to
order notification to all other persons who it considers may
have an interest as it deems fit.
(5) The Court shall hear the trustee and any interested
parties as it considers appropriate.”.
(d) the marginal note to the article shall be substituted by
the following new marginal note>-
“Applications, enforcement and hearings.”.
Immediately after article 38 of the principal Act there shall
be inserted the following new articles 38A, 38B and 38C>-
(1) All proceedings under these sections shall
be held in camera and only the parties to the proceedings, the
trustees, the beneficiaries, if they prove they have an interest
in the proceedings to the satisfaction of the Court, and their
respective advocates and legal procurators shall be allowed
in court during the hearings.
(2) Any decree or judgement of the Court shall
preserve the confidentiality of the proceedings and shall only
reveal such facts as may be necessary to make the same
intelligible and enforceable by the parties and the trustees.
(3) All applications, responses, affidavits,
opinions, statements and other documents or evidence shall
be kept by the Registrar of the Court in a confidential manner
and no access shall be given thereto except with the written
consent of the Court.
(4) The Court may order the notification of any
order to the depository notary as is referred to in article 43A
of this Act if it considers it appropriate in the circumstances.
The Board established under article 29 of the Code
of Organisation and Civil Procedure may make Rules of Court
concerning applications made under or in terms of this Act.
Without prejudice to any other obligations arising
under any other law, a trustee may apply to the Authority for
directions concerning the manner in which he may or should
act in connection with any matter concerning the trust or its
property when such matter relates to the fulfillment of his
obligations relating to the prevention of money laundering.
Any bona fide communication or disclosure made in terms
of this article shall not be treated as a breach of the duty of
professional secrecy or any other restriction, whether imposed
by statute or otherwise, upon the disclosure of information
and any information disclosed in terms of this Article shall
be used only in connection with investigations of money
laundering.”.
27. Immediately after subarticle (2) of article 40 of the principal Amendment of
article 40 of the
Act there shall be added new subarticles (3) to (6) as follows>-
principal Act.
“(3) A person dealing with a trustee in relation to trust
property need not -
(a)
enquire into the terms of the trust< or
(b) obtain the consent of the beneficiaries or any
other person<
and shall, subject to being in good faith, be entitled to rely on
declarations made by the trustee with regard to any matters
therein stated.
(4) The trustee may furnish to any person a certificate
containing the following information without being in breach of
any confidentiality obligations>-
(a) that the trust exists and the date the trust instrument
was executed<
(b) the identity and address of the current trustee<
(c) that the trustee is duly authorised and empowered
to carry out the relevant transaction and has obtained all
necessary consents, if any<
(d) the revocability or irrevocability of the trust and,
if revocable, that the trust has not been revoked.
(5) When there is more than one trustee, a certificate may be
signed and authenticated by any trustee.
(6) Any trustee who issues any certificate containing any
statement which he knows or ought to know is false shall be guilty
of an offence and shall on conviction be liable to the punishment
of imprisonment for a term not exceeding two years or to a fine
(multa).”.
Article 40A of the principal Act shall be amended as follows>
28. (a) in subarticle (1) thereof, instead of the words “in breach
of trusts.” there shall be substituted the words “in breach of trusts>”<
and
(b) immediately after subarticle (1) of the said article there
shall be added the following new proviso>-
“Provided that an alienation of immovable property
by the trustee as provided by article 958A of the Civil Code
shall not give rise to the rights provided in this article in favour
of any person claiming a right of legitim.”.
29. For article 42, the heading “Registration of Trusts”, articles
43 and 43A following it, the heading “Fiscal and other Exemptions”,
articles 44 and 46A following it, the heading “Nominee Companies”
and articles 47 and 48 following it, of the principal Act there shall be
substituted the following>-
“REGULATION OF TRUSTEES
Persons may carry on the activities as trustees either
in a professional or in a private capacity and, as the case may
be, shall be subject to the provisions of articles 43 and 43A of
this Act.
Requirements
(1) Except as provided in terms of subarticles (6)
Authorisation and (7) of this article, any person, resident or operating in
Malta, or a corporate trustee, who receives property upon trusts
or accepts to act as a trustee or co-trustee of a trust and who>-
(a) receives or is entitled to remuneration for so
acting, or
(b) does so on a regular and habitual basis, or
(c)
holds himself out to be a trustee<
shall require authorisation by the Authority in terms of this
Act irrespective of the proper law of the trusts they hold and
whether or not all or part of the trust property is in Malta>
Provided that in the event of reasonable doubt as to
what constitutes acting as a trustee on a regular and habitual
basis, the matter shall be conclusively determined by the
Authority.
(2) The Authority may issue Rules to establish
when trustees are considered as receiving remuneration, when
activity is done on a regular or habitual basis and when a
person holds himself out as a trustee.
(3) Any person, whether an individual or a
company may apply in writing to the Authority to be
authorised as a trustee and the Authority may grant
authorisation upon being satisfied that the conditions laid
down in this article have been met and such authorisation
may be general or may be restricted to particular specified
activities.
(4) The conditions referred to in the preceding
subarticle are that>-
(i)
in the case an applicant is a company>-
(a) its objects include acting as trustee and
carrying on activities ancillary or incidental thereto, and
does not include objects which are not compatible with
the services of a trustee< and
(b) its actual activities are compatible and
connected with the services of a trustee< and
(c) the directors of the company are not less than
three in number and are individuals who are approved
persons< and
(d) the company has established adequate systems
for maintaining proper records of the identity and
residence of beneficiaries, the dealings and the assets in
connection with trusts and compliance with applicable
law< and
(e) every person who has a direct or indirect
interest in the company, is an approved person< and
(f) the name of the company is not inconsistent
with its trustee activity< and
(g) where the company is not registered in Malta,
that company must be constituted or incorporated in an
approved jurisdiction<
(ii) in the case of an applicant who is an
individual that such individual -
(a)
is resident in Malta or operating in Malta<
(b) is an approved person< and
(c) has established adequate systems for
maintaining proper records of the identity and residence
of beneficiaries, and of the dealings and the assets of
trusts and compliance with applicable law.
(5) A trustee shall notify the Authority of any
change or circumstance which would have a bearing upon
his status as an authorised person and in the case of a corporate
trustee, of any change in its charter, statute, memorandum or
articles of association or other instrument constituting the
company, directors or members, and in case of companies
registered in Malta such changes shall not be registered unless
and until they are so notified to and approved by the Authority.
(6) (a) The following persons shall not be required
to obtain authorisation in terms of this Act to act as a trustee
in the course of carrying on the activities for which they are
licenced>-
(i) a person who is in possession of a valid
licence issued in terms of the Banking Act< or
(ii) a person who is licenced in terms of the
Investment Services Act to hold clients’ monies or assets<
or
(iii) a person who is authorised in terms of the
Insurance Business Act or enrolled in the Brokers List
under the Insurance Brokers and Other Intermediaries
Act to hold clients’ monies or assets< or
(iv) a person with an equivalent licence to (i)
to (iii) issued by the relevant regulatory authority in an
approved jurisdiction.
(b) A person approved by the Malta Maritime
Authority to act as a trustee of a shipping trust or a shipping
foundation as defined in article 84Z of the Merchant Shipping
Act shall not require any further authorisation in terms of this
Act.
(7) Without prejudice to the obligation of any
person to obtain authorisation in terms of any other law which
may be applicable, the provisions of this article and article
43A shall not apply>-
(a) to a person when acting as a trustee under
trusts created for the purpose of holding security in the
form of hypothecs, pledges, assignments, mandates or
otherwise, granted in relation to any financial transaction
for the benefit of lenders or other creditors in such
transaction<
(b) to a person when acting as trustee of any
movable property held as security and for the benefit of
persons whose entitlement is conditional or determinable
in terms of the trust or the contract in relation to which
the holding was created<
(c) to a liquidator, curator in bankruptcy or court
appointed administrator acting in the course of the
liquidation, bankruptcy or administration<
(d) to a person in possession of a warrant to carry
out the profession of an advocate, notary public, legal
procurator or certified public accountant but only if
acting as a trustee is limited to what is necessary and
incidental in the course of carrying out his profession
and does not otherwise hold himself out as a trustee to
the public< provided he shall be obliged to maintain
proper records of clients’ assets for a period of not less
than five years or longer period as established by any
other law governing his profession<
(e) to persons when acting as trustees of a unit
trust which is a collective investment scheme which is
recognised in terms of the Investment Services Act or
which is exempt from licensing in terms of the said Act
and the establishment of which is notified to the
Authority<
(f) to an individual acting as a trustee under
charitable trusts provided he is not remunerated and does
not hold himself out as providing such services<
(g) any person acting as a co-trustee when another
trustee or, if more than one, the majority of the trustees
are authorised in terms of this article<
(h) to companies or other legal entities,
established in an approved jurisdiction, the directors of
which must be approved persons, and which are wholly
owned, including as trustees, and controlled by
authorised trustees in terms of this article and which are
established solely for the purpose of holding trust
property and ancillary acts, the details of which are
notified in writing to the Authority by an authorised
trustee<
(i) to a party to a contract who agrees to receive
or hold property as trustee in the context of or ancillary
to the performance of a contract provided that the trustee
does not otherwise hold himself out as a trustee to the
public and is not remunerated therefor<
(j) to a person holding one or more shares in a
company registered in Malta when such shares do not
have any special voting rights and their individual
nominal value does not exceed one Maltese lira or its
equivalent in any other currency.
(8) A person herein referred to may apply to the
Authority and the Authority shall authorise in terms of this
article>
(i) a person with a licence or authorisation
equivalent to sub-paragraph (i) to (iii) of paragraph (a)
of subarticle (6) issued by the Authority or the relevant
regulatory authority in an approved jurisdiction and who
will be acting as trustee not in the course of its ordinary
business for which they are licensed< or
(ii) a person having a licence or authorisation to
act as a trustee issued by the relevant regulatory authority
in an approved jurisdiction>
Provided such person whether Maltese or foreign notifies
the Authority, in writing, of its intention to act as a trustee in
Malta at least forty-five days prior to commencing activities
in Malta, and who receives a confirmation from the Authority
that it does not object thereto.
A notification under this subarticle shall outline the
proposed activities and shall be accompanied by such
information as may be required by the Authority from time
to time.
To the extent that the Authority lays down any
restrictions or conditions for such activities, on initial response
to a notification or at any other time, such restrictions and
conditions shall come into effect as stated in the response or
by subsequent notice of the Authority.
(9) (a) The holding upon trust of >
(i) securities or interests in or issued by a
Maltese legal entity, other than securities which are listed
on the Malta Stock Exchange or other recognised
investment exchange< or
(ii) immovable property in Malta (hereafter
referred to as “relevant property”) by trustees who are
not authorised shall be permitted only if a person>-
(aa) authorised in terms of sub articles (3)
and (8) of this article, or
(bb) not required to be authorised under
subarticle (6) (a) and (7) (e), (g) and (h) of this
article,
(hereafter referred to as a “qualified person”) is engaged in
writing by the trustee to carry out the compliance functions
referred to in paragraph (b) of this subarticle on an indefinite
basis with specific reference to such relevant property and
such agreement is notified to the Authority prior to any
acquisition of such relevant property taking place and shall
be accompanied by such information as may be required by
the Authority from time to time.
(b) The qualified person shall ensure due
compliance with all fiscal, prevention of money
laundering and other legal obligations in connection with
relevant property and shall notify the Authority in the
event that he resigns, has his engagement terminated or
is otherwise hindered in performing his duties hereunder.
(c) Paragraphs (a) and (b) of this subarticle shall
also apply to the holding of relevant property by a
mandatory for another person.
(d) If at any time there is no qualified person to
carry out the functions as required by this subarticle, the
Court may appoint a qualified person on the application
of the Authority or any interested person.
(e) The Authority may issue rules from time to
time prescribing the form and conditions of such
notification and functions of qualified persons.
(10) No transactions in relation to relevant property,
including assignments of beneficial interests in a trust, shall
take place without the prior written consent of a qualified
person>
Provided that nothing in this section shall imply that a
qualified person is himself a trustee or that he is jointly and
severally liable for the performance of obligations of the
trustee in relation to relevant property or related transactions.
(11) The requirement for a qualified person shall
not apply >-
(a) to the holding of one or more shares in a
company when they do not have any special voting
rights and their individual nominal value does not
exceed one Maltese Liri or its equivalent in any
other foreign currency< or
(b) to the holding by trustees named and
appointed by a will creating the trust in respect of
the initial period of six months from the date of
acceptance by the trustee in respect of the estate of
the testator unless it is necessary to enter into any
transaction in relation to relevant property, other
than the initial transfers or declarations by the
trustee to assume ownership and control of the trust
property, in which case a qualified person shall be
appointed prior thereto.
(12) Without prejudice to the nature of the
legal relationship in any particular case, for the purposes
of this article, any person who>-
(a) acts as a mandatory in the holding of
property for another person< or
(b) acts as an administrator, a trustee,
director or similar functionary, exercising control
over the assets, by whatever name he may be called,
of a private foundation,
shall, not being a person referred to in subarticle
(6) of this article, require authorisation in terms of this
article, irrespective of the extent of his activities, whether
remuneration is payable therefor or whether he holds
himself out as providing such services or not.
For the purposes of this subarticle a “private
foundation” is a foundation established or operating in
Malta for the benefit of a private interest or purpose
which is not charitable.
(13) Nothing in this article shall imply that a
person held to be a trustee under a constructive or resulting
trust or as a result of any statutory provision or judicial
declaration has acted in breach of this Act during any period
prior to his becoming aware of such trusts and in such a case
it shall be a defence against prosecution under this Act to
prove that the said person was unaware of his duties hereunder.
(1) In this article the term “Notarial Law”
Trustees and
means the Notarial Profession and Notarial Archives Act.
(2) An individual who agrees to act as a trustee
because>-
(a) he is related to the settlor, by consanguinity
or affinity in the direct line up to any degree or in the
collateral line up to the fourth degree inclusively, or
(b) he has known the settlor for at least ten years
and, in both cases,
(i) is not remunerated, even indirectly,
except as permitted by any rules issued by the
Authority<
(ii) does not hold himself out as a trustee to
the public, and
(iii) does not act habitually as trustee, in any
case in relation to more than five settlors at any
time,
(hereafter referred to as a “private trustee”) may act as a trustee
without the need for authorisation in terms of the preceding
article, subject to the conditions stated in subarticle (3) of
this article.
(3) A private trustee shall be permitted to act as
trustee under the following conditions which shall apply as
the case may be>
(i) in the case of a testamentary trust, that within
six months of accepting to act as trustee, he shall draw
up an inventory by notarial deed in terms of Part IIIA of
the Notarial Law and shall declare in the deed that the
inventory includes all the property under the trust and
an extract of the will containing all the terms of the said
trust shall be annexed to the said notarial deed<
(ii) in the case of an inter vivos trust, the trust
must be created by a notarial trust deed<
(iii) where property, other than immovable
property, is added to the trust by a settlor or any other
person, in terms of article 10 of this Act or by declaration
of the trustee, such addition shall be recorded by a
notarial trust deed on delivery of the additional property
to the trustee, if practicable, but in any case not later
than 14 working days of receipt of such property by the
trustee. In the case of immovable property the addition
of property shall be carried out by a notarial act, an
authenticated copy of which shall be delivered to the
depository notary for safekeeping and registration with
the trust documents within such time<
(iv) records of meetings with beneficiaries,
advisors or protectors, the exercise of discretion by the
trustee in appointing or removing a beneficiary, in
reducing, distributing or advancing trust property, in the
termination of the trust for any reason, or other material
events shall be rendered in writing and shall, together
with any annual accounts and Court decrees, orders,
declarations or directions which may be issued in relation
to trust property, be delivered to the depositary notary<
(v) in all cases, the trustee shall declare the
facts applicable to himself to show that he does not
require authorisation to act as a trustee in terms of this
Act and is not disqualified in terms of article 53 of this
Act, after the notary has warned him as to the importance
of the truthfulness of such declarations<
(vi) in the case of a trust relating to relevant
property for the purposes of subarticle (9) of article 43
of this Act, the depositary notary shall ascertain that the
provisions of article 43 are observed by the trustee.
(4) Where the trustee is a private trustee, the
notary public who publishes a will containing a testamentary
trust or receives a notarial trust deed inter vivos shall be the
sole depository of all acts referred to in the preceding
subarticle and such notary shall be known as the depository
notary>
Provided that if such notary public is appointed as a
trustee in the deed creating the trust and accepts to so act,
such notary shall ensure that the deed of trust names another
notary public to carry out the functions of the depositary
notary.
(5) Notwithstanding any other law relating to the
profession of notaries public, a notary who receives a will or
notarial trust deed shall not be precluded from being appointed
as the trustee in such deed but if a notary is a trustee he may
not act as the depository notary or the notary keeper>
Provided that should the depositary notary be appointed
trustee subsequent to the creation of a trust, his acceptance to
act shall be conditional on such notary delivering all trust
documents to another depositary notary to the satisfaction of
the Authority and as provided in subarticle (9).
(6) All documents relative to a trust shall be
submitted to the depository notary within 15 days of coming
into existence or of coming into possession of the trustee or
of the date of relevant event to which the document refers, as
the case may be. On receipt of any such document the notary
shall declare in writing on the document the date, time, and
place of receipt. Such declaration shall, until the contrary is
proved, be evidence of its content. All such documents shall
be held for safekeeping and registration in the manner as may
be laid down by the Authority from time to time.
(7) The trust deed and all documents relative to a
trust filed with a depository notary shall be confidential. The
depository notary shall not be obliged to provide information
on the trust deed or any other document relative thereto except
as provided by this Act and with the written consent of the
trustee or upon an order of the Court.
(8) Where in terms of Notarial Law a notary
keeper has been appointed instead of the depository notary,
the notary keeper shall be the depository notary relative to
the trust and a reference to the depository notary in this or
any other law shall be construed accordingly.
(9) The trustee may, by notice in writing to the
notary and to the Authority, substitute the depositary notary
or the notary keeper in his capacity as the depositary notary
and the latter shall deliver to the substitute depositary notary
all documents in his possession in the preceding subarticles
and, in case of public deeds, authenticated copies thereof and
this within 30 days from the date of the receipt of such notice,
unless otherwise ordered not to do so by the Authority. The
substituted notary may request a written receipt and keep
copies of the documents delivered to the appointed depository
notary but shall keep such copies secure and in strict
confidence and shall not provide access to any person other
than the serving depository notary, the trustee or the Authority.
(10) A notary who fails to observe the provisions
of this article shall be guilty of an offence and shall on
conviction be liable to a fine (ammenda) of not less than LM50
and not more than LM100>
Provided that no proceedings shall be instituted where
the notary, upon a notice in writing by the Authority admits
liability to pay such fine at its maximum amount.
(11) When a trust is created in accordance with
the provisions of this article, the trustee shall remain subject
to the requirements set out in relation to the depository notary
until the termination of the trust even if the trustee becomes
authorised or is substituted by a trustee authorised or not
required to be authorised in terms of article 43 of this Act.
(12) When a trust is not created in accordance
with the provisions of this article and a private trustee is
subsequently appointed to office, it shall be a condition to his
acceptance to act that a notarial deed of acceptance be
executed in such manner that the provisions of this article are
observed as far as possible at that stage, reference being made
to the settlor for the purposes of the note of enrollment and a
full inventory, of the trust property being transferred to the
trustee, being attached.
(13) If any person wishes to create a trust and
appoints a trustee other than a private trustee and also wishes
that the provisions of this article apply, such person may
choose to do so by notifying the notary public that it is his
wish that the provisions of this article apply and that the notary
act as depository notary under the provisions of this article.
In such case the notary shall request the trustee to declare, in
lieu of the declaration in sub-paragraph (v) of subarticle (3)
above, that he is authorised, or not required to be authorised,
in terms of article 43 and is aware of his obligations under
this article. In such cases the requirement of article 50 of the
Notarial Law to the effect that the Notary registers a Note of
enrollment relating to the creation of the trust shall not apply
if the settlor expressly exempts him from such duty.
(14) In all cases the Court may exercise the power
to appoint, remove, substitute and give directions to a
depositary notary on the application of the depositary notary,
any interested person or the Authority.
APPLICATION, GRANT, REVOCATION, ETC. OF
AUTHORISATION
An application for authorisation in terms of article
shall
be made in the form and manner required by the
authorisation.
Authority and shall furthermore>-
(a) contain or be accompanied by such
information and particulars, in addition to those required
by this article, as the Authority may require or as may
be prescribed<
(b) be verified in the manner and to the extent
required by the Authority, or as may be prescribed<
(c) contain the address in Malta for service on
the applicant of any notice or other document required
or authorised to be served on him by or under this Act<
(d) be accompanied by such fee as may be
prescribed in respect of the authorisation applied for.
(1) The Authority may grant or refuse to grant
authorisation applied for under this Act.
authorisation.
(2) In granting authorisation the Authority may
subject it to such conditions as it may deem appropriate, and
having granted authorisation it may, from time to time, vary
or revoke any condition so imposed or impose new conditions.
(3) When considering whether to grant or refuse
authorisation the Authority shall, in particular, have regard
to>-
(a) the protection of settlors and beneficiaries< and
(b) the protection of the reputation of Malta taking
into account Malta’s international commitments< and
(c)
the promotion of competition and choice.
(4) Without prejudice to the provisions of
subarticle (8) of article 43, the Authority shall notify any
applicant of its decision whether to grant or refuse to grant
the licence applied for within three months from the receipt
of a complete application made in compliance with the
applicable provisions of this Act.
(5) Any requirement in this Act that a person be
an approved person to carry out certain activities or functions
shall be interpreted as a requirement that, in the case of a
legal entity, any director or officer of such person, and, in the
case of a trust, each one of its trustees, be an approved person
to carry out such activities or functions.
The Authority may at any time cancel or suspend
an authorisation in accordance with the provisions of this Act>-
(a) if it considers that the holder thereof is not
or is no longer an approved person to act as a trustee< or
(b) if it considers that the holder thereof does
not fulfil the requirements of, or has contravened, any
of the provisions of this Act or of any rules or regulations
made thereunder, or has failed to satisfy or comply with
any obligation or condition to which he or the
authorisation is subject by virtue of or under this Act< or
(c) if the Authority has been furnished by or
on behalf of the authorised trustee with information
which is false, inaccurate or misleading< or
(d) if the authorised trustee has not commenced
activities within the term which may be provided for in
the authorisation or has ceased to provide such service<
or
(e) if it considers it desirable to cancel or
suspend the authorisation for the protection of the general
public or the reputation of Malta taking into account
Malta’s international commitments< or
(f) at the request of the authorised trustee< or
(g) in any other circumstances under which the Authority
would have been precluded from issuing an authorisation
under this Act or where it would have been entitled to refuse
the grant of such authorisation.
(1) Where the Authority proposes-
Notification of
(a) to vary any condition to which the
cancellation or
authorisation is subject or to impose a condition
suspension of
thereon< or
authorisation.
(b) to refuse an application for an
authorisation or to cancel or suspend an authorisation,
it shall give the applicant or, as the case may be, the authorised
trustee notice in writing of its intention to do so, setting out
the reasons for the decision it proposes to take.
(2) Every notice given under subarticle (1) of this
article shall state that the recipient of the notice may, within
such reasonable period after the service thereof as may be
stated in the notice, being a period of not less than forty-eight
hours and not longer than thirty days, make representations
in writing to the Authority giving reasons why the proposed
decision should not be taken, and the Authority shall consider
any representation so made before arriving at a final decision.
(3) The Authority shall as soon as practicable
notify its final decision in writing to the applicant or the
authorised trustee, as the case may be.
REGULATORY AND INVESTIGATORY POWERS
(1) Notwithstanding any other provision of this
Act, the Authority may, by notice in writing, require any
person who is or was acting, or who appears to be or to have
been acting as trustee, or who was providing services which
require authorisation according to this Act, and any other
person who appears to be in possession of relevant information
to do all or any of the following>-
(a) to furnish to the Authority, at such time
and place and in such form as it may specify, such
information and documentation as it may require
with respect to any such activities as aforesaid<
(b) to furnish to the Authority any
information or documentation aforesaid verified in
such manner as it may specify<
(c) to attend before the Authority, or before
a person appointed by it, at such time and place as
it may specify, to answer questions and provide
information and documentation with respect to any
such activities as aforesaid.
(2) The Authority may take copies of any
documents furnished or provided under this article.
(3) Where the person required to provide
information or documentation under this article does not have
the relevant information or documentation, he shall disclose
to the Authority where, to the best of his knowledge, that
information or documentation is, and the Authority may
require any person, whether indicated as aforesaid or not, who
appears to it to be in possession of that information or
documentation, to provide it.
(4) A statement made and documentation
provided in pursuance of any requirement under this article
may be used in evidence against the person making the
statement or providing the documentation as well as against
any person to whom they relate.
(5) Except as provided for in article 642(1) of the
Criminal Code and of article 588(1) of the Code of Cap. 377
Organization and Civil Procedure, the provisions of this article Cap. 9
shall apply to all information or documentation
notwithstanding the provisions of the Professional Secrecy Cap. 12
Act.
(6) The power to require the production of
documentation under the provisions of this article shall be
without prejudice to any lien or charge claimed by any person
in relation to such documentation.
(7) Where the Authority has appointed a person
under paragraph (c) of subarticle (1) of this article, such person
shall, for the purposes of carrying out his functions under his
appointment, have all the powers conferred on the Authority
by this article and a requirement made by him shall be deemed
to be and have the same force and effect as a requirement of
the Authority.
Power to issue
(1) Without prejudice to any of the powers
conferred on it by this Act, the Authority may, whenever it
deems it necessary, give, by notice in writing, such directives
as it may deem appropriate in the circumstances< and any
person to whom or to which the notice is given shall obey,
comply with and otherwise give effect to any such directive
within the time and in the manner stated in the directive.
(2) Without prejudice to the generality of the
foregoing provisions of this article, a directive under this
article may>-
(a) require anything to be done or be omitted to
be done, or impose any prohibition, restriction or
limitation, or any other requirement, and confer powers,
with respect to any transaction or other act, or to any
assets, or to any other thing whatsoever<
(b) require that any person having functions of a
trustee be removed or replaced by another person
acceptable to the Authority<
(c) require a trustee to cease operations and to
wind up its affairs, in accordance with such procedures
and directions as may be specified in the directive, which
may provide for the appointment of a person to take
possession and control of all documents, records, assets
and property belonging to or in the possession or control
of the trustee.
(3) The power to give directives under this article
shall include the power to vary, alter, add to or withdraw any
directive, as well as the power to issue new or further
directives.
(4) Where the Authority is satisfied that the
circumstances so warrant, it may at any time make public
any directive it has given under any of the provisions of this
article.”.
Article 49 of the principal Act shall be amended as follows>-
30. (a) it shall be re-numbered as article 56 and shall be
transposed in the principal Act in its proper numerical sequence in
accordance with its renumeration<
(b) in sub-paragraph (b) of subarticle (1) thereof, the words
“nominee companies” and “companies” wherever they appear, shall
be deleted and substituted by the word “trustees”<
(c) sub-paragraph (e) of subarticle (1) thereof shall be re-
numbered as sub-paragraph (o)<
(d) immediately after sub-paragraph (d) of subarticle (1)
thereof there shall be added the new sub-paragraphs (e) to (n) as
follows>-
“(e) to further regulate the activities of trustees as well
as the services provided and activities carried on or in
conjunction therewith or in relation thereto, providing for any
matter he may deem expedient including the creation and
exercise of rights by or for the benefit of the beneficiaries or
settlors and the imposition of duties and obligations on persons
authorised to act as trustees<
(f) to establish the requirements relating to the books
of account to be maintained by trustees, the form and content
of accounts which trustees are obliged to prepare, which
accounts have to give a true and fair view of the assets under
trusts, the requirements of review or audit on such accounts,
the duties of auditors who may be engaged and related matters<
(g) to exempt any activities or classes of persons from
the requirements of articles 43 and 43A of this Act and to
impose conditions he may deem fit for eligibility for
exemption<
(h) without prejudice to any rules which may apply in
terms of the Investment Services Act, to establish rules
applicable to the responsibilities of trustees of unit trusts under
this Act, the issue of units, the rights and responsibilities of
unit holders and any other matters which may need to be
regulated relating to unit trusts<
(i) to regulate any matters in connection with the use
of trusts in commercial transactions, to establish conditions
for such use including the prohibition of such use, and to
amend the definition of commercial transactions in the Act<
(j) to regulate any matter in relation to security trustees
and security trusts, including the definition of what constitutes
fair and reasonable actions in relation to enforcement of
security trustees<
(k) to regulate trusts which provide for maintenance
of persons or for the provision of annuities or pensions<
(l) to regulate the accumulation of income and distribution
of income and capital by trustees and ancillary matters<
(m) to regulate the duties of private trustees and the duties
and functions of depository notaries, procedures to be adopted
for the safekeeping and registration of all documents filed with
such notary in relation to a trust and all ancillary matters<
(n) to regulate matters in relation to trusts created by
holders of public office and such other persons as may be
prescribed, including the qualifications of the trustees, the
powers of appointment of such trustees, the powers and duties
of such trustees, the rights of beneficiaries and third parties
in such cases and all ancillary matters<”< and
(e) in subarticle (2) thereof, for the words “Regulations and
rules” there shall be substituted the words “Regulations”.
31. Immediately after article 48 there shall be inserted a new
article 49 as follows>
(1) In relation to trustees, the provisions of article
17 of the Malta Financial Services Authority Act shall apply
mutatis mutandis.
collaboration.
(2) The Authority may exercise the powers granted
to it by virtue of this Act at the request of or for the purposes
of assisting an overseas regulatory authority>
(a) where the assistance is required by the
overseas regulatory authority for the purposes of
the exercise of one or more of its regulatory
functions< or
(b) where so required within the terms of
Malta’s international commitments< or
(c) where so required within the terms of
undertakings assumed in bilateral or multilateral
agreements for the exchange of information and
other forms of collaboration with overseas
regulatory authorities including a request under a
memorandum of understanding concluded with the
Authority.”.
32. Articles 50, 51, 52 and 53 of the principal Act shall be deleted Substitution
articles 50, 51, 52
and substituted by the following new articles 50 to 53>-
and 53 of the
principal Act with
new articles 50 to
(1) Any officer, employee or agent of the
“Right of entry.
(1) Kull persuna li tikser jew li tonqos li t[ares
xi wa[da mid-disposizzjonijiet ta’ dan l-Att, jew tikser jew
tonqos li t[ares xi awtorizzazzjoni, kondizzjoni, obbligazzjoni,
[tie;a, direttiva jew ordni mag[mula jew mog[tija ta[t xi
wa[da mid-disposizzjonijiet ta’ dan l-Att, tkun [atja ta’ reat.
(2) Kull persuna li g[all-finijiet ta’, jew skond,
xi wa[da mid-disposizzjonijiet ta’ dan l-Att jew ta’ xi regoli
jew regolamenti mag[mulin bis-sa[[a tieg[u, jew ta’ xi
kondizzjoni, obbligazzjoni, [tie;a, direttiva jew ordni
mag[mula jew mog[tija kif imsemmi qabel, tag[ti tag[rif
jew tag[mel stqarrija jew dikjarazzjoni li tkun taf li ma tkunx
preçi]a jew li tkun falza jew qarrieqa f’xi [a;a materjali, jew
bi traskura;ni tag[ti tag[rif jew tag[mel stqarrija li ma tkunx
preçi]a jew li tkun falza jew qarrieqa f’xi [a;a materjali, tkun
[atja ta’ reat.
(3) Kull persuna li bil-[sieb li tevita li tinqabad
bl-g[emil ta’ reat ta[t dan l-Att tne[[i, tiddistru;;i, ta[bi jew
b’mod frawdulenti tibdel xi ktieb, dokument jew karta o[ra,
tkun [atja ta’ reat.
(4) Kull persuna li bil-[sieb tfixkel lil persuna
milli te]erita drittijiet mog[tija b’dan l-Att tkun [atja ta’ reat.
(5) Kull persuna li ta;ixxi jew li turi li tkun qed
ta;ixxi b[ala trustee jew mod ie[or f’Malta ming[ajr ma tkun
awtorizzata li hekk tag[mel mill-Awtorità, meta hekk
me[tie;a b’dan l-Att, tkun [atja ta’ reat.
(6) Kull persuna li tkun [atja ta’ reat ta[t is-
subartikoli (1), (2), (3), (4) u (5) ta’ dan l-artikolu u, sakemm
ma tkunx provduta xi piena og[la b’xi li;i o[ra, tista’ te[el,
meta tinsab [atja, multa ta’ mhux iktar minn mitejn elf lira
jew pri;unerija g[al ]mien ta’ mhux i]jed minn erbg[a snin,
jew dik il-multa u pri;unerija flimkien.
(7) Meta trustee jikser jew jonqos milli j[ares xi
wa[da mill-kondizzjonijiet imposti f’awtorizzazzjoni
me[tie;a ta[t l-artikolu 43 ta’ dan l-Att jew il-kondizzjonijiet
ta’ l-artikolu 43A jew jikser jew jonqos milli j[ares xi direttiva,
obbligazzjoni jew [tie;a o[ra mag[mula jew mog[tija mill-
Awtorità, l-Awtorità tista’ timponi penali amministrattiva li
ma tistax tkun i]jed minn erbg[in elf lira Maltin.
(8) Ksur jew nuqqas ta’ t[aris minn xi persuna
ta’ xi wa[da mid-disposizzjonijiet ta’ dan l-Att dwar l-
awtorizzazzjoni ta’ dik il-persuna li ta;ixxi b[ala trustee jew
xort’o[ra ma g[andha b’ebda mod tippre;udika l-validità jew
l-e]egwibbilità ta’ trust jew tolqot id-dmirijiet u r-
responsabbiltajiet ta’ dik il-persuna skond dan l-Att.
REGOLI
(1) L-Awtorità tista’ to[ro; Regoli li jirregolaw
trustees, kemm jekk ikunu awtorizzati kif ukoll jekk ma
humiex me[tie;a li jiksbu awtorizzazzjoni skond dan l-Att,
l-operazzjonijiet ta’ trustees f’Malta, u l-kwalifiki ta’ persuna
biex ta;ixxi b[ala trustee. Ir-Regoli jkunu jorbtu lit-trustees
u persuni o[ra kif ji;i speçifikat fihom. Ir-Regoli jistg[u
jistabbilixxu [ti;iet addizzjonali u kondizzjonijiet dwar l-
attivitajiet ta’ trustees, ir-responsabbiltajiet tag[hom lejn l-
Awtorità, kodiçi ta’ m;ieba u kull [a;a o[ra li l-Awtorità
jidhrilha xierqa, mag[duda l-forma u l-kontenut ta’ records
tal-kontijiet li g[andhom jin]ammu minn trustees.
(2) L-Awtorità tista’ to[ro; ukoll Regoli li
jistabbilixxu liema attivitajiet jikkostitwixxu servizzi
amministrattivi dwar trusts u li jistabbilixxu l-kondizzjonijiet
dwar it-tmexxija ta’ dawn l-attivitajiet.
Authority, on producing, if required, evidence of his authority,
may enter premises occupied by a person on whom a notice
has been served under this Act for the purpose of obtaining
the information or documents required by that notice, or
otherwise for the purpose of the investigation, and of
exercising any of the powers conferred upon it.
(2) Where any officer, employee or agent of the
Authority has reasonable cause to believe that if such notice
as is referred to in subarticle (1) of this article were served it
would not be complied with or that any documents to which
it could relate would be removed, tampered with or destroyed,
such person may, on producing, if required, evidence of his
authority, enter any premises referred to in subarticle (1) of
this article for the purpose of obtaining from there any
information or documents specified in the authority, being
information or documents that could have been required under
such notice as is referred to in subarticle (1) of this article.
(3) For the purposes of any action taken under
the provisions of this article, the Authority may request the
assistance of the Commissioner of Police, who may for such
purpose exercise such powers as are vested in him for the
prevention of offences and the enforcement of law and order.
SANCTIONS
51. (1) Any person who contravenes or fails to
comply with any of the provisions of this Act, or contravenes
or fails to comply with any authorisation, condition,
obligation, requirement, directive or order made or given
under any of the provisions of this Act, shall be guilty of an
offence.
(2) Any person who for the purposes of, or
pursuant to, any of the provisions of this Act or of any rules
or regulations made thereunder, or any condition, obligation,
requirement, directive or order made or given as aforesaid,
furnishes information or makes a statement or declaration
which he knows to be inaccurate, false or misleading in any
material respect, or recklessly furnishes information or makes
a statement which is inaccurate, false or misleading in any
material respect, shall be guilty of an offence.
(3) Any person who with intent to avoid detection
of the commission of an offence under this Act, removes,
destroys, conceals or fraudulently alters any book, document
or other paper, shall be guilty of an offence.
(4) Any person who intentionally obstructs a
person exercising rights conferred by this Act shall be guilty
of an offence.
(5) Any person who acts or purports to act as a
trustee in Malta without being authorised to do so by the
Authority, when so required in terms of this Act, shall be
guilty of an offence.
(6) Any person who is guilty of an offence under
subarticles (1), (2), (3), (4) and (5) of this article and, saving any
higher punishment which may be provided under any other law,
shall be liable, on conviction, to a fine (multa) not exceeding
two hundred thousand liri or to a term of imprisonment not
exceeding four years, or to both such fine and imprisonment.
(7) Where a trustee contravenes or fails to comply
with any of the conditions imposed in an authorisation issued
under article 43, or the conditions imposed in article 43A, or
contravenes or fails to comply with any directive, obligations
or other requirement made or given by the Authority, the
Authority may impose an administrative penalty which may
not exceed forty thousand Maltese liri.
(8) A breach or non-observance by any person of
any provision of this Act relating to the authorisation of such
person to act as a trustee or otherwise shall not in any manner
prejudice the validity or enforceability of a trust or affect the
duties and responsibilities of such person in terms of this Act.
RULES
Power to issue
52. (1) The Authority may issue Rules governing
trustees, whether authorised or not required to obtain
authorisation in terms of this Act, the operations of trustees
in Malta, and on the qualifications to act as trustees. The Rules
shall be binding on the trustees and other persons as may be
specified therein. The Rules may lay down additional
requirements and conditions in relation to the activities of
trustees, their responsibilities to the Authority, a code of
conduct, and any other matters as the Authority may consider
appropriate, including the form and content of accounting
records to be kept by trustees.
(2) The Authority may also issue Rules to
establish which activities constitute administrative services
in relation to trusts and to establish the criteria for the conduct
of these activities.
53. (1) The court, upon the application of the
Disqualification
Authority, may make a disqualification order against any
person who is found guilty of an offence under this Act or
any other law, other than an offence punishable only with a
fine, or who has infringed any requirement of this Act.
(2) The court, upon the application of the
Authority or any interested person, may also make a
disqualification order against any person if it is satisfied that
his conduct as a trustee of a trust, either taken alone or taken
together with his conduct as a trustee of any other trust or
trusts, makes him unfit to be a trustee.
(3) A disqualification order made under this
article may be for a minimum period of one year and a
maximum period of fifteen years.
(4) For the purposes of this article, a
disqualification order is an order whereby a person shall not,
without leave of the court -
(a) be a trustee of a trust or a private
foundation< or
(b) be delegated any functions, duties or
powers of a trustee< or
(c) perform or exercise any functions or
otherwise act in a fiduciary capacity in relation to a
mandate, trust or a private foundation.
(5) A notice of a disqualification order made
under this article shall>-
(a) be delivered by the Registrar of Courts to
the Authority<
(b) be furthermore recorded in a register to be
kept for this purpose by the Authority and which shall
be open for public inspection.
(6) Any person who, while being subject to a
disqualification order, acts in contravention thereof, shall be
guilty of an offence and liable on conviction to a fine (multa)
of not more than twenty thousand liri or imprisonment for a
term not exceeding three years or to both such fine and
imprisonment.
(7) The provisions of this article shall be without
prejudice to any other offences or remedies which may exist
under any other law.”.
33. Immediately after article 53 there shall be inserted the
following new articles 54 to 56>-
A person shall not be qualified for appointment or
to hold office as trustee if>-
(a) he is interdicted or incapacitated or is an
undischarged bankrupt<
(b) he has been convicted of any of the crimes
affecting public trust or of theft or of fraud or of
knowingly receiving property obtained by theft or fraud<
(c)
he is a minor< or
(d) he is subject to a disqualification order under
article 53.
APPEALS
(1) In this article, the “Financial Services
Tribunal” means the Tribunal established in terms of article
21 of the Malta Financial Services Authority Act, and the
term “Tribunal” shall be construed accordingly< and the
provisions of the said article 21 shall, except in so far as any
of them is incompatible with the provisions of this article,
apply to appeals made to the Financial Services Tribunal under
this Act.
(2) Any person who is aggrieved by a decision of the
Authority>-
(a)
to refuse the issue of an authorisation<
(b) to impose or vary any condition of an
authorisation<
(c)
to impose or vary any restriction<
(d) to revoke an authorisation<
(e)
to make any order under this Act,
may appeal against the decision to the Financial Services
Tribunal within such period and under such conditions as
are established under the Malta Financial Services Authority
Act.
(3) An appeal against a decision of the Authority
shall not suspend the operation of that decision.
For the purpose of articles 44 till 55 of this Act
Meaning of
term trustee.
the term “trustee” shall be construed as including those persons
referred to in subarticle (12) of article 43.”.
34. Instead of the Schedule to the Act there shall be substituted Substitution of
Schedule to the
the Schedule to this Act.
principal Act.
35. (1) The following provisions in this Part shall apply in Transitory
relation to registered trusts, trustees of unregistered trusts, licensed Provisions.
nominees and nominee companies as referred to in the principal Act as
in force immediately before the coming into force of this Part and the
Malta Financial Services Centre Act as retained in force by Act XVII
of 2002 (hereinafter referred to as “the applicable law”).
(2) Upon the coming into force of this Part no further trusts Registered
shall be registered in terms of the principal Act as in force immediately Trusts.
before the coming into force of this Part.
(3) All trusts registered prior to the coming into force of
this Part shall continue to be regulated by the principal Act as in force
immediately before the coming into force of this Part for a maximum
period of ten years from the date of their registration and they shall
continue to enjoy the rights and exemptions and other privileges due as
provided by the principal Act as in force immediately before the coming
into force of this Part.
(4) A trustee of a registered trust in relation to which the
period of ten years has expired prior to the coming into force of this
Part shall amend the trust deed in consultation with the settlor, any
protector or other interested parties so as to achieve compliance with
the principal Act as amended by this Part within a maximum period of
two years from the coming into force of this Part.
(5) A trustee of a registered trust in relation to which the
said period of ten years is due to expire on or after the coming into
force of this Part shall amend the trust deed in consultation with the
settlor, any protector or other interested party so as to achieve compliance
with the principal Act as amended by this Part within a maximum period
of two years from the expiry of the said period of ten years.
(6) Notwithstanding the provisions of subarticles (4) and
(5) hereof, a trustee of a registered trust may at any time prior to the
lapse of said period of ten years amend the trust deed as aforesaid to
achieve compliance with the principal Act as amended by this Part and
such amendment shall imply a waiver of all rights and exemptions and
other privileges contemplated by the provisions of the principal Act as
in force immediately before the coming into force of this Part.
(7) The trustee of any trust, other than a registered trust,
which is in existence on the date of the coming into force of this Part,
and to which the provisions of subarticle (1) of article 43 of the principal
Act as amended by this Part applies, shall, within two years of such
date, do all such acts as may be necessary to comply with the provisions
of the principal Act including>-
(a) applying for and obtaining authorisation as a trustee in
terms of article 43 of the principal Act as amended by this Part< or
(b) making the relevant declarations and preparing such
inventory of trust assets as required by article 43A of the principal
Act as amended by this Part< or
(c) notifying the Authority of his activities to the extent necessary<
or
(d) cease to act as a trustee in Malta unless he obtains
authorisation as required by the principal Act as amended by this Part.
(8) Nothing validly done in relation to a trust prior to the
coming into effect of this Part shall be affected hereby and no action
carried out prior to the coming into force of this Part and, without
prejudice to any trust regulated by a foreign law and the provisions of
the Recognition of Trusts Act, no relationship in existence prior to the
coming into force of this Part shall be treated as a trust relationship
unless it unambigouosly appears from the relationship that it was
intended to create a trust relationship.
Licensed Nominees.
(9) On the coming into force of this Part, no further licences
to act as a licensed nominee shall be issued in terms of the applicable
law and all existing valid licences issued up to such date shall expire
upon the lapse of two years from the coming into force of this Part.
(10) (a) Upon the lapse of six months from the coming
into force of this Part and until the expiry date referred to in subarticle
(9) hereof, no licensed nominee shall undertake any new nominee
activities and licensed nominees shall only continue to service existing
arrangements<
(b) A licensed nominee shall, prior to the lapse of two years
from the coming into force of this Part>-
(i) either apply for authorisation under article 43 of the
principal Act as amended by this Part<
(ii) or cease its business activities>
Provided that if such licensed nominee does not obtain
authorisation to act as a trustee under Article 43, such licensed
nominee shall be obliged to ensure that all rights of property held
under trusts or other arrangements are transferred in the form
required by law to a person who is duly authorised to act as trustee
in terms of Article 43 or that the provisions of article 43A are fully
complied with, as the case may be.
(11) Notwithstanding any limitation in any memorandum
and articles of association of any licensed nominee company in terms
of the applicable law, any such company may at any time apply for and
may be granted authorisation to act as a trustee in terms of the principal
Act as amended by this Part.
(12) Upon the issue, in terms of Article 43 of the principal
Act as amended by this Part, of authorisation to any such company to
act as a trustee in terms of Article 43 of the said Act, any licence issued
pursuant to the applicable law shall expire and be cancelled and shall
be surrendered to the Authority.
(13) Upon the coming into force of this Part no further warrants Nominee
to act as a nominee company shall be issued in terms of the applicable law. Companies.
(14) (a) Where upon the coming into force of this Part, a
nominee company is solely performing the functions of liquidator of
offshore companies, it shall immediately submit its warrant to the
Authority for modification and such warrant shall continue to be renewed
only in relation to the functions of liquidator and until such time as the
nominee company completes the winding up of such offshore
companies, whereupon the nominee company shall immediately
surrender its modified warrant to the Authority for cancellation.
(b) A nominee company solely performing the functions of
liquidator as aforesaid shall not act as trustee in any manner and shall
not be entitled to apply for authorisation to act as trustee in terms of the
principal Act as amended by this Part.
(15) (a) Where upon the coming into force of this Part,
a nominee company is solely performing the functions of trustee of
registered trusts, the warrant of such nominee company shall be renewable
for a maximum period of two years from the coming into force of this
Part and such nominee company shall, during the said period, continue to
be regulated by the principal Act as in force prior to the coming into force
of this Part and by the relevant provisions of the applicable law.
(b) A nominee company solely performing the functions of
trustee as aforesaid shall, prior to the lapse of the period of two years
from the coming into force of this Part>
(i) either apply for authorisation to act as trustee under
article 43 of the principal Act as amended by this Part,
(ii) or cease to act as trustee>
Provided that where such nominee company does not obtain
authorisation to act as trustee under article 43, it shall be bound to ensure
that all the rights of property under trusts and all other arrangements
are transferred in the form required by law to a person authorised to act
as trustee in terms of article 43 or that the provisions of article 43A are
fully complied with, as the case may be.
(16) Where upon the coming into force of this Part, a
nominee company is performing both the functions of liquidator of
offshore companies and also the functions of trustee of registered trusts,
the provisions of subarticle (12) shall mutatis mutandis apply to such
nominee company in respect of its functions of trustee and the provisions
of paragraph (a) of subarticle (11) shall mutatis mutandis apply to such
nominee company in respect of its functions of liquidator, and the
modification of its warrant as provided for in paragraph (a) of subarticle
(11) shall be required only in respect of any period following the lapse
of two years from the coming into force of this Part, during which the
nominee company continues to act as liquidator of offshore companies.
(17) The Authority shall have the power to require such
changes to the memorandum and articles of association of any licensed
nominee or any nominee company applying for authorisation, including
a change in name to the extent considered necessary, so as to more
suitably reflect its status, provided that any such changes shall not affect
the authorisation of the company to act as a trustee in terms of the
principal Act as amended by this Part or the functions as liquidator of a
nominee company under the applicable law.
Part II
AMENDMENTS TO THE CIVIL CODE, CAP. 16
36. (1) This Part amends and shall be read and construed as Amendments to the
Civil Code, Cap. 16.
one with the Civil Code, hereinafter in this Part referred to as “the Code”.
(2) This Part shall come into force on such date as the
Minister responsible for justice may, by notice in the Government
Gazette, appoint, and different dates may be so appointed for different
provisions and different purposes thereof.
Amendment of
37. Article 20 of the Code shall be amended as follows>-
article 20 of the
Code.
(a) in subarticle (3) thereof, immediately following the
words “property” there shall be added the words “and any income
accruing under a trust”< and
(b) in subarticle (5) thereof, immediately after the word
“him” the following words shall be added “as well as to any
beneficial interest under a trust.”.
38. Article 163 of the Code shall be amended as follows >-
Amendment of
article 163 of the
Code.
(a) in sub-paragraph (f) thereof, for the words “or negligent.”
there shall be substituted the words “or negligent<”< and
(b) immediately after sub-paragraph (f) thereof there shall
be inserted the new sub-paragraph (g) as follows>-
“(g) persons who are trustees of property for the benefit
of the minor.”.
39. Immediately after article 958 of the Code there shall be added Addition of new
articles 958A to
a new Title IIIA and the additional new articles 958A to 958J as follows>- 958J to the Code.
“Title IIIA
Of Trusts and their Effects
958A. (1) Property under trusts shall be regulated by
Trusts and
applicable
the special law on trusts and to the extent applicable, the rules
rules.
of this Code relating to trusts.
(2) (a)
Transactions relating to property including>
Transactions
(i) the settlement of property under trusts, even
relating to
property in
when effected by unilateral declaration or resulting from
trusts.
a judgement or order of a court<
(ii) the distribution, application, or advancement
of property by a trustee to a beneficiary<
(iii) the reversion of property to a settlor or his
estate when a trust fails or is terminated<
(iv) the assignment, vesting or transfer of property
under trusts from a trustee to another trustee under the
same trusts,
shall be subject to the special laws relating to trusts and their
effects when such transactions arise by operation of law or
are carried out in the form and manner required by applicable
law.
(b) When such transactions are intended to
transfer the ownership or other rights to or in property from
one person to another , such transactions shall comply with
all applicable requirements for the transfer of ownership of
such property, including the provisions of article 996 when
applicable, and when so carried out shall>
(i) be effective modes of transfer of
ownership or other rights to or in such property<
(ii) result in the creation or termination of
legally enforceable interests in or to such property
in favour of such persons as provided by the special
laws relating to trusts< and
(iii) be operative against third parties.
(c) The sole consideration for the validity of such
transactions may be the imposition or assumption, the performance,
or the termination, as the case may be, of legally enforceable
obligations on or by a trustee in relation to such property.
(3) A trustee may validly dispose of and transfer
by trustees of
trust property to third parties notwithstanding any right of
legitim arising out of the application of Articles 615 to 653
and the other provisions of this Code relating to reduction of
trust property.
(4) In any case where, after the death of the settlor,
the trustee is formally notified of a claim for legitim in
circumstances where trust property is to be sold, the trustee
shall hold on trust for the benefit of any claimant of such
right a sum in money based on the net transfer value of the
property at the time of transfer until the claim for legitim is
determined or otherwise lapses.
(5) If trust property subject to a claim for legitim
or, where it has been sold, the proceeds thereof, have already
been distributed to any beneficiary, the legitimary claim may
be made against such beneficiary as though he were an heir,
legatee or donee as the case may be, and if there remains any
property under such trusts, proportionately between the trust
property and the beneficiary.
(6) The trustee’s obligation to retain the value as
stated in subarticle (4) shall operate for a peremptory period
of five years from the date of death of the decujus. This shall
not prejudice the right of any claimant with respect to other
property forming part of the inheritance but not settled in trust.
958B (1) Trusts for the benefit of a person who is not
capable of receiving property, whether by testamentary
disposition or donation, under the provisions of this Code,
absolutely or more than as permitted by this Code, are subject
to reduction in full or for the excess in accordance with this
article>
Provided that in case of members of monastic orders or
religious corporations of regulars the provisions of article 611
shall apply to trusts in favour of such persons mutatis
mutandis.
Reduction of
(2) Subject to the provisions of article 6B of the
Trusts and Trustees Act, except in cases where the trustee
exercises a power of variation or otherwise acts so as to be in
conformity with the provisions of this Code, trust settlements
shall be reduced to the portion permitted by law if at the time
of the opening of succession of the settlor they are found to
exceed the disposable portion of his estate>
Provided that when trust property is reduced,
the excess property shall be held by the trustee absolutely for
the heirs of the settlor or for the benefit of the person entitled
thereto as the case may be.
(3) When the beneficiary entitled to property
which is in excess of what is permissible at law is a spouse of
the settlor, such excess property shall be held under separate
trust for use and enjoyment of fruits for the lifetime of such
spouse and subject to the terms of the trust, thereafter for the
heirs of the settlor absolutely.
(4) The rules laid down in article 621 and in articles
647 to 653, relating to the reduction of testamentary
dispositions, shall be observed with regard to the reduction
of trust settlements, subject to the provisions of this Title.
(5) The reduction of a settlement can only be
demanded by those for whose benefit the law has reserved a
portion of the property of the deceased, and by their heirs or
other persons claiming under them and -
(a) saving article 1240, such persons cannot waive
such right during the lifetime of the settlor, whether by
an express declaration or by consenting to such
settlements<
(b) donees, legatees or creditors of the deceased
cannot demand the reduction of settlements or benefit
by it<
(c) trusts forming part of a commercial transaction
cannot be reduced in any manner until the completion
of the commercial transaction, after which the residual
property shall be subject to the rules stated in this article.
(6) No reduction of settlements can take place until
the value of all the property disposed of under any will has
been exhausted and when such reduction takes place, it shall
be made commencing with the last settlement and so on
successively, from the last to the previous settlements.
(7) The right arising upon a reduction of trust property
is to receive value and there shall be no right to restitution of
property in kind.
(8) To the extent not already distributed prior to notice of
a claim, the trustee shall restore the fruits of such part of the
settlement which exceeds the disposable portion from the day of
the opening of succession of the settlor if the action for reduction
has been brought within the year, otherwise from the day of the
demand. In the case referred to in subarticle (4) of article 958A,
the claimant shall be entitled to interest on the value retained for
his benefit at the rate paid by banks on savings accounts from
the date of the notification of his claim on the trustee or from the
date of receipt of proceeds by the trustee whichever is the later.
(9) Saving the provisions of the Trusts and
Trustees Act, unless the terms of the trust expressly exclude
such effects>
(a) a person claiming the legitim from a trustee shall
lose any benefit under the trust< and
(b) the provisions of subarticle (4) of article 620 of
this Code shall apply in relation to any gains received
under the terms of the trust.
(10) Where the benefit to the beneficiary consists
in the use and enjoyment of property and the enjoyment of
fruits therefrom or a life annuity and it appears that the value
of the trust fund exceeds the disposable portion of the estate
of the settlor, the persons entitled to the legitim may claim
either >-
(a) the legitim and lose all benefits under the
trust and any will, if any< or
(b) receive from the trustee after the death
of the said beneficiary and notwithstanding any terms
of the trust, an amount equal to the said legitim and
interest at 5% per annum, without compounding, up to
the value of the trust property remaining on such event
and in such case shall not be entitled to any benefits
under the will or the trust. Any further remainder of trust
property shall thereafter be applied according to the terms
of the trust< or
(c) opt not to claim and enjoy all benefits
under any trust and any will.
(11) When, in the case contemplated in the
preceding subarticle, the beneficiary is subject to a mental or
physical disability which renders him incapable of sustaining
himself, if it appears to the trustee that the trust property is
not susceptible of division, sale or reduction to fulfil the claims
of a legitimary in terms of paragraph (a) of subarticle (10)
above without materially prejudicing the interests of the said
beneficiary, the trustee may apply to the Court and the Court
may order that the property not be sold, divided or reduced
until the death of the said beneficiary. Furthermore, and in
such case >-
(a) the beneficiary shall not be entitled to demand
the reduction of the trust settled in his favour and claim
the legitim, and
(b) any other legitimary shall be entitled to apply
paragraph (b) of subarticle (10) at the time of death of the
beneficiary unless he had opted as stated in sub-paragraph
(c) thereof within five years of the death of the settlor.
(12) The legitimaries may choose any of the above
options by notice in writing to the trustee and to the other
heirs or executors of the estate.
(13) The action for reduction, whether against
Prescription.
trustees or against third parties, shall be barred by the prescription
on the lapse of five years to be reckoned from the day of the
opening of the succession. The aforesaid time shall also run
against minors and persons interdicted and shall not be capable
of suspension or interruption by judicial act or otherwise.
958C. (1) The provisions of article 605 shall apply to
unworthy of
trusts
in the same manner as it applies to wills, and on the
under trusts. events contemplated therein, trusts in favour of such a person
shall be subject to termination on the demand of the trustee
or any interested person.
(2) Notwithstanding that a trust may have been
settled without the reservation of the right of revocation or
variation, a settlor may demand the variation of the terms of
trust on the grounds specified in article 1787 and the provisions
of articles 1788 and 1790 of this Code and those of article 15
of the Trusts and Trustees Act shall apply.
958D. When there exist both donations and settlements,
for purposes of determining the order of transactions and other
matters for the purpose of reduction of>-
(a) donations in terms of Sub-title VI of Title XIV
of Part II of Book Second, and
(b)
of settlements in terms of this Title,
donations and settlements shall be treated as forming part of
the same type of transactions and they shall be subject to
reduction commencing with the latest in date unless the
settlor#donor has expressly stated an order he wishes to be
applied for such purpose.
958E. For the purposes of the calculation of the value
of an estate for any purposes of this Code, including for the
benefit of a claimant of a legitim and of an heir for the purposes
of collation amongst co-heirs, any settlement of property
under trust shall also be included in the estate>
Provided that the settlor of property in trust may
exempt such settlement from collation in terms of article 914>
Provided further that if the property settled in trust
for the benefit of an heir is collated in the interest of the other
co-heirs, such property as has been collated shall thereafter
be held by the trustee under separate trust absolutely for the
benefit of such heir.
Trustees and
958F. (1) A trustee appointed in terms of a
Testamentary
testamentary trust shall not be considered to be a testamentary
executor and the provisions of articles 762 to 778 shall not
apply to testamentary trustees.
(2) When a person is appointed as trustee and
also as an executor, such executorship shall be regulated in
terms of this Code until such time as the executorship is
fulfilled upon the delivery or registration of any relevant assets
to or in the name of the trustee.
958G. (1) Where movable or immovable property
situated in Malta has been settled in trust, under the laws of
foreign trust,
Malta or otherwise, by a person who is not domiciled in Malta
at the time of settlement -
(a) such person shall be deemed to have had
capacity to do so if at the time of such transfer or
disposition he was of full age and sound mind under the
law of his domicile and the law of Malta< and
(b) no provision in this Code relating to
inheritance or succession to such property including, but
without prejudice to the generality of the foregoing, rights
to legitim or similar rights applicable under this Code
shall apply to such trust property, at such time or
subsequently< and
(c) the beneficiaries shall be deemed to have
capacity to benefit.
(2) Once property has been settled in trust it shall
not be affected by a change of domicile of the settlor, even if
the settlor subsequently becomes domiciled in Malta.
(3) For the purposes of this article “legitim”
means the legal rule restricting the right of a person to dispose
of his property during his lifetime so as to preserve such
property for distribution at his death, or having similar effect.
958H. The right of redemption as provided for in article
applicability
of right of 912 of this Code shall not apply when the transfer of the
redemption.
undivided share of an inheritance shall consist of a settlement
of such right under trusts, the beneficiaries of which are the
settlor himself, his heirs or the other heirs of the estate or a
distribution or reversion thereof to such persons.
958I. The provisions of articles 1000 and 1001 shall
applicability
not
be
interpreted as creating any limitation on the power of
any person to settle a trust or a person to accept to act as
1001. trustee under a trust for the benefit of a beneficiary, on the
binding nature and effect of any trust or on the enforceablility
of such rights as arise under a trust by a beneficiary.
958J. The right of a debtor of a litigious right in terms
applicability
of article 1483 of this Code shall not arise when the settlement
1483. involves the assignment of a litigious right under trusts for
the benefit of the creditor or creditors who have assigned the
debt.”.
40. Immediately after article 1124 of the Code, there shall be
added the new sub-title and the following new articles 1124A and 1124B>-
“VII. OF FIDUCIARY OBLIGATIONS
1124A (1) Fiduciary obligations arise in virtue of
obligations.
law, contract, quasi-contract, trusts, assumption of office or
behaviour whenever a person (the “fiduciary”)>-
(a) owes a duty to protect the interests of another
person< or
(b) holds, exercises control or powers of
disposition over property for the benefit of other persons,
including when he is vested with ownership of such
property for such purpose< or
(c) receives information from another person
subject to a duty of confidentiality and such person is
aware or ought, in the circumstances, reasonably to have
been aware, that the use of such information is intended
to be restricted.
(2) A person who is delegated any function by a
fiduciary and is aware, or should, from the circumstances, be
aware, of the fiduciary obligations shall also be treated to be
subject to fiduciary obligations.
(3) Fiduciary obligations arise from behaviour when
a person>-
(a) without being entitled, appropriates or makes
use of property or information belonging to another,
whether for his benefit or otherwise< or
(b) being a third party, acts, being aware, or where
he reasonably ought to be aware from the circumstances,
of the breach of fiduciary obligations by a fiduciary, and
receives or otherwise acquires property or makes other
gains from or through the acts of the fiduciary.
(4) Without prejudice to the duty of a fiduciary to carry
out his obligations with utmost good faith and to act honestly
in all cases, a fiduciary is bound, subject to express provision
of law or express terms of any instrument in writing excluding
or modifying such duty, as the case may be >-
(a) to exercise the diligence of a bonus pater
familias in the performance of his obligations<
(b) to avoid any conflict of interest<
(c) not to receive undisclosed or unauthorised
profit from his position or functions<
(d) to act impartially when the fiduciary duties
are owed to more than one person<
(e) to keep any property as may be acquired or
held as a fiduciary segregated from his personal property
and that of other persons towards whom he may have
similar obligations<
(f) to maintain suitable records in writing of the
interest of the person to whom such fiduciary obligations
are owed<
(g) to render account in relation to the property
subject to such fiduciary obligations< and
(h) to return on demand any property held under
fiduciary obligations to the person lawfully entitled
thereto or as instructed by him or as otherwise required
by applicable law.
(5) In addition to any other remedy available under
law, a person subject to a fiduciary obligation who acts in
breach of such obligation shall be bound to return any property
together with all other benefits derived by him, whether
directly or indirectly, to the person to whom the duty is owed.
(6) The obligation to return property derived from a
breach of a fiduciary duty shall apply also to all property into
which the original property has been converted or for which
it has been substituted.
1124B. (1) When the ownership of property is vested
in a person who holds it subject to fiduciary obligations, third
parties may act in relation to such person as though he were
the absolute owner thereof.
(2) When a person holds property subject to fiduciary
obligations, such property is not subject to the claims or rights
of action of his personal creditors, nor of his spouse or heirs
at law.
(3) A person dealing with a fiduciary in relation to
property subject to fiduciary obligations need not>-
(a)
enquire into the terms of his authority< or
(b) obtain the consent of the person to whom the
fiduciary duties are owed or any other person,
and shall, subject to being in good faith, be entitled to rely on
declarations made by the fiduciary with regard to his authority.
(4) The fiduciary may furnish to any person dealing with
him a certificate containing the following information without
being in breach of any confidentiality obligations>-
(a) that the authority exists, the date the relevant
instrument was executed and that the authority has not
been revoked<
(b) a declaration that he is authorised to carry out
the transactions being entered into< and
(c)
the identity and address of the fiduciary.
(5) Any fiduciary who issues any certificate containing
any statement which he knows or ought to know is false shall
be guilty of an offence and shall on conviction be liable to
the punishment of imprisonment for a term not exceeding
two years or to a fine (multa).”.
41. Subarticle (3) of article 1322 of the Code shall be amended Amendment of
article 1322 of the
as follows>-
Code.
(a) in paragraph (l) thereof, for the words “article 2010,
and” there shall be substituted the words “article 2010<”<
(b) in paragraph (m) thereof, the words “immovable
assets.” there shall be substituted the words “immovable assets<
and”< and
(c) immediately after paragraph (m) there shall be added
the new paragraph (n) as follows >-
“(n) the settlement in trust of property forming part
of the community of acquests and the variation or revocation
of the terms of any trust in which any such property has been
settled.”.
42. Immediately after article 1740 of the Code, there shall be Addition of new
article 1740A of the
added a new article 1740A as follows>-
Code.
1740A. The rules relating to donations shall not apply
to the settlement or distribution of property under trusts except
to the extent expressly stated by the provisions of this Code.”.
43. Immediately after article 1871 of the Code, there shall be
added a new article 1871A as follows>-
1871A (1) Any person holding property for another
holds property subject to fiduciary obligations to the person
engaging him for such purpose and shall be regulated by the
provisions of this title and by the provisions of this Code
relating to fiduciary obligations.
(2) Where such person acquires property in his
own name but on behalf of a mandator, the mandator shall at
all times be entitled to demand the immediate and
unconditional transfer thereof from the mandatory. The
mandatory shall on such demand or, in any case, on the
expiration of the time during which the mandate was to
continue, immediately render account of his mandate in terms
of article 1875 of this Code and transfer the property to the
mandator by such means as may be appropriate, saving any
special terms of the mandate relating to fees and expenses
and rights of any third party in good faith.
(3) Notwithstanding article 1886 of this Code,
a mandate in favour of a person acting in terms of this article
shall not lapse>-
(i) on the death of the mandator and shall continue
to bind the mandatory to preserve the property and all
rights related thereto until such time as the property held
by him is validly transferred to the heirs or legatees of
the mandator< and
(ii) on the bankruptcy of the mandator or the
mandatory and shall continue to bind the mandatory to
preserve the property and all rights related thereto until
such time as the property held by him is validly
transferred as directed by the competent court for the
benefit of the mandator or of the creditors of the
mandator, as the case may be.
(4) A term of the mandate purporting to bind a
mandatory as referred to above to transfer the property held
by him to a third party after the death of the mandator shall
not be valid unless such bequest be made by means of a will
in accordance with the formalities required by law.
(5) In the event of the death of the mandatory, the heirs
at law or the executor, if any, of the will of the mandatory
shall be bound by the same obligations to preserve the property
held for the mandator and to immediately transfer it to him or
as he may instruct, saving such rights to the payment of
outstanding dues and expenses according to law.
(6) Notwithstanding the provisions of subarticle (1)
of article 1871 of this Code, in cases where a mandatory, as
referred to above, brings, by any means, to the attention of any
third party the fact that he is acting in such capacity, the mandatory
shall not be personally liable for the obligations entered into other
than with and to the extent of the property held by him.”.
44. Immediately after article 2095 of the Code, there shall be Addition of title and
added the new title and new articles from 2095A to 2095E as follows >- new
to 2095E to the
Code.
“Title XXIIIA
Of Trusts and Obligations
Sub-Title I
Of matrimonial regimes
2095A. (1) Property being the subject of matrimonial
contracts may be settled in trust only by means of a written
instrument. Trusts between spouses are not created by
operation of law.
(2) Property forming part of the community
of acquests or governed by the system of community of residue
under separate administration may only be settled in trust with
the consent of both spouses. Paraphernal property of either
spouse may be settled in trust by each spouse acting singly.
(3) A trust settled by both spouses jointly
may only be varied or, if revocable, may only be revoked by
both spouses acting jointly and after the death of one of the
spouses such trust shall be irrevocable notwithstanding any
of its terms, except with the authorisation of the Court in its
voluntary jurisdiction.
(4) A beneficial interest held by a spouse
under a trust shall not form part of the community of acquests
irrespective of when it was settled in his favour or when he
became a beneficiary, except in the case of a beneficial interest
under a trust into which community property has been jointly
settled by the spouses and only in relation to such property.
(5) Any distribution of income made under
a trust in favour of a spouse shall, unless otherwise expressly
provided in the trust instrument, form part of the community
of acquests or of the community of residue under separate
administration of such spouse, as may be applicable, in terms
of article 1320 and article 1338(2) of this Code respectively.
(6) When the matrimonial home is the subject of
trusts for the benefit of the spouses or any one of them, nothing
in the trust instrument or in the law shall imply that a spouse
enjoys lesser rights to the home and its enjoyment than under
article 3A of the Code, and the terms of the trust may not be
revoked or varied, nor may the trustee dispose of the said
property, without the consent in writing of both spouses or,
in the absence of consent, without the authorisation of the
Court.
(7) Any debt, indemnity or other liability due by
either spouse as a trustee shall not be charged to the assets of
the community of acquests in terms of article 1327 except as
provided in article 1329 and, for the purposes of article 1341,
any such debt shall be deemed to be a paraphernal debt.
2095B. (1) A person may settle property under trusts
to his spouse acting as trustee for the benefit of beneficiaries
including any such spouse as beneficiary.
(2) When a spouse is a beneficiary, a trustee
may not enter into a contract of sale with the settlor spouse
except in the cases specified in sub-paragraph (b) of article
1366 of the Code.
(3) A person cannot be a beneficiary under a
trust settled by his or her spouse for more than the property
that is allowed to be bequeathed or donated to such spouse in
terms of this Code. Notwithstanding the terms of the trust
and the rules at law otherwise applicable in relation to any
excess, the excess shall be held by the trustee for the use and
enjoyment of such spouse for his lifetime and thereafter shall
be held on trust for the settlor or his heirs.
(4) If a beneficiary spouse is entitled at law to
any property in ownership, the property held in trust up to the
reserved portion, having regard to any other dispositions in
such person’s favour, shall in virtue of this provision be held
on separate trust for the benefit of such spouse alone
irrespective of the terms of the trust. Any further property
settled in trust for the benefit of the spouse shall, irrespective
of the terms of the trust, be held under trust only for the use
and enjoyment of the beneficiary for his lifetime and thereafter
for the benefit of the settlor or his heirs. The above shall be
without prejudice to the right of any legitimary to demand
the reduction of the trust when the settlement impinges on
right of legitim as provided by this Code.
2095C The provisions of law relating to spouses or
matrimonial property shall not apply in any manner to the
actions of a spouse when acting as trustee.
Sub-title II
Of Annuities
2095D. Title XI of Book Second “Of the Constitution
applicability
of Annuities” and the provisions of sub-titles I and II thereof
of provisions
shall not apply in relation to annuities constituted in a deed of
on annuities.
trust or testamentary trusts and the obligations of trustees and
the rights of the beneficiaries shall be regulated exclusively
by the terms of the trust and the special laws relating to trusts.
Sub-title III
Of Security Trusts
2095E. (1) Security may be created in favour of a
Security Trusts.
trustee, called a security trustee, for the benefit of any creditor
or creditors, present or future, or in favour of a class or classes
of creditors.
For the purposes of article 2042 and other provisions
under special laws which may be applicable to security, the
trustee shall be treated as a creditor and shall be entitled to be
registered as holder of the security, indicating his position as
trustee.
(2) The security trustee shall enjoy all such
rights and be subject to such obligations as may be stated in
the instrument in writing regulating>-
(a)
the appointment of the security trustee, and
(b) the security granted to the security trustee
for the benefit of the creditor or creditors.
(3) Security, for the purposes of this article,
means any arrangement whereby the rights of a creditor are
legally protected including any undertaking, guarantee,
mandate, pledge, assignment, transfer, grant, privilege or
hypothec or the placing of property in possession or control
of the trustee with rights of retention and sale as may be agreed.
(4) When a hypothec is created in favour of a
security trustee which is a bank or other entity which is
authorised in terms of the Banking Act or in terms of
equivalent legislation overseas, such hypothec may,
notwithstanding any other provision of law, be granted to
secure future debts by the same debtor to the security trustee
or the beneficiaries of the security trusts, present or future, as
may be defined in the trust instrument. Such a hypothec shall
be valid on condition that the deed constituting the hypothec
expressly states that it secures future debts of the same debtor
and limits the effects of the hypothec to a stated maximum
sum. Such information shall form part of the relative note of
registration for the purposes of article 2042 of this Code.
(5) When security is granted to a security trustee,
such trustee shall have the power and legal interest to file any
legal proceedings for the enforcement thereof even where
under the terms of the deed of trust and the security>-
(a) the trustee is not the creditor of the
principal debt or obligation< or
(b) all creditors enjoy the right to sue, jointly
and severally, for the enforcement of the debt>
Provided that payment by the debtor either to the security
trustee or to the beneficiaries, if also creditors, shall discharge
the obligations of the debtor to the extent of the payment made.
(6) Subject to the preceding article, nothing in the
Code of Organization and Civil Procedure shall hinder the
action of a security trustee for the benefit of the beneficiaries
under a trust on the basis of any simultaneous judicial or other
action by any beneficiary under the trust.
(7) A security trustee shall not be subject to any
of the obligations of the creditors for whose benefit he may
hold security except to the extent to which he has expressly
agreed in writing.
(8) A security trustee may resign, retire or be
substituted in accordance with the terms of the trust and in
such case the original security trustee shall assign any security
held by him to the substitute security trustee in the form
required by law for the particular security held.
(9) Beneficiaries of a security trust who may be
vested with the debt, may assign the debt to third parties and
the provisions of article 1475 shall apply to the security for
such debt even when held by a security trustee and in such
case the assignees of such debt shall enjoy the rights of
beneficiaries under the security trust upon notice to or
acknowledgement by the trustee without the need of a separate
assignment of the beneficiary rights under the trust deed.
(10) The appointment of a security trustee to hold
security, his removal or his substitution by another trustee
and any related transactions shall not operate as a novation
nor shall they affect the security validly constituted in any
manner.
(11) A security trustee may also act as an agent
or mandatory for the beneficiaries of the security trust and
may carry out functions under such contract in accordance
with its terms.
(12) In the exercise of any right relating to the
enforcement of any security, the security trustee shall be bound
by the legal provisions relating to the particular type of security
and in any case where the security arrangements are not
subject to rules as to its enforcement, the security trustee shall
act in a fair and reasonable manner in relation to the debtor.
Part III
AMENDMENTS TO THE NOTARIAL PROFESSION
AND NOTARIAL ARCHIVES ACT, CAP. 55
45. (1) This Part amends and shall be read and construed as Amendments to the
one with the Notarial Profession and Notarial Archives Act, hereinafter Notarial
and Notarial
in this Part referred to as “the principal Act”.
Archives Act, Cap.
55. (2) This Part shall come into force on such date as the
Minister responsible for notarial affairs may, by notice in the
Government Gazette, appoint, and different dates may be so appointed
for different provisions and different purposes thereof.
Article 28 of the principal Act shall be amended as
46. follows>-
(a) immediately after sub-paragraph (iii) of paragraph (c)
of subarticle (1) of the said article there shall be inserted a new
sub-paragraph as follows >-
“(iv) where a party appearing declares to be acting
as a trustee in respect of the subject-matter of the Act, the
indication that the party appears as trustee in respect of that
subject-matter<” and
(b) immediately after subarticle (2) of the said article there
shall be added the following new subarticle>-
“(3) The above requirements, apart from those stated
in sub-paragraphs (a), (b), (c), (h), (i), (j) and (k) of subarticle
(1) of this article, shall not apply to a notarial deed whereby a
trust is created in terms of article 43A of the Trusts and
Trustees Act except in the case where it involves any act of
settlement under trust or unilateral declaration of a trust of
immovable property or real rights over such property or any
vesting or divesting of a trustee in respect of such property or
rights.”.
Article 50 of the principal Act shall be amended as follows>-
47. (a) immediately after paragraph (k) of subarticle (1) of the
said article there shall be inserted a new paragraph as follows>–
“(l) any act of settlement under trust or unilateral
declaration of a trust of immovable property or real rights
over such property or any vesting or divesting of a trustee in
respect of such property or rights and any act of settlement
under trust of any other property made in accordance with
article 43A of the Trusts and Trustees Act when the trustee is
a private trustee as defined in the said Act.”< and
(b) immediately after subarticle (8) there shall be inserted
the following new subarticle (9) as follows >-
“(9) In the case of a deed of settlement under trust of
property which is not immovable property, the note shall only
contain the date and nature of the act and the designation of
the settlor in accordance with paragraph (c) of subarticle (1)
of article 28< provided that the notary shall have no obligation
and shall not register such note if the settlor has exempted
him from so doing in the trust deed and the trustee is a person
who is authorised or not required to be authorised to act as a
trustee in terms of article 43 of the Trusts and Trustees Act.”.
48. Immediately after article 68 of the principal Act there shall Addition of new
article 68A to the
be a new article 68A as follows>-
principal Act.
(1) All deeds of trusts done by notarial deed in
terms of article 43A of the Trusts and Trustees Act, except
any act of settlement under trust or unilateral declaration of a
trust of immovable property or real rights over such property,
and any vesting or divesting of a trustee in respect of such
property or rights, shall not be accessible to any person other
than the settlor, the trustee or such other person as may be
permitted access by the terms of the trusts, the applicable law
or under authority of any court.
(2) The same rules shall apply to all other
documents relative to a trust held by the depository notary
in terms of the said Act.
(3) In the case of a testamentary trust, the
provisions of this Act which apply to wills shall apply
mutatis mutandis< however, the provisions of this article
shall not apply to all documents subsequently filed with
the depository notary in accordance with article 43A of
the Trusts and Trustees Act.
(4) For the better carrying out of its functions
under the Trust and Trustees Act, the Authority, as
defined in the said Act, shall have the right and power to
demand information from any depository notary relating
to any trust documents in his possession and in such a
case the depositary shall provide such information and
documents as may be requested notwithstanding any duty
of professional secrecy.”.
49. Immediately after article 84 of the principal Act, there shall Addition of new
Part IIIA and new
be inserted a new Part IIIA and a new article 84A as follows >-
article 84A to the
principal Act.
“Part IIIA – Of Notarial Trust Deeds
(1) The formalities for notarial acts for the
settlement of property under trusts, including unilateral
declarations of trusts and the vesting and divesting of a trustee
in respect of trust property applicable when a settlor wishes
to create a trust by means of a notarial trust deed or when it is
mandatory to do so in terms of article 43A of the Trusts and
Trustees Act, shall be laid down from time to time by the
Authority referred to in the Trusts and Trustees Act>
Provided that where the deed involves the transfer,
vesting or divesting of any immovable property or real rights
over such property, a notarial act shall be drawn up in
accordance with Part III of this Act.
(2) The custody of notarial trust deeds and other
trust documents relative to the same trust and their registration
by the notary, access thereto and the issue of copies and
extracts therefrom may also be regulated by such rules.
(3) In this article “notarial trust deed” shall include
such notarial deed whereby a trustee declares an inventory of
assets placed under trust in terms of article 43A of the Trusts
and Trustees Act.”.
PART IV
AMENDMENTS TO THE INCOME TAX ACT, CAP 123
50. (1) This Part amends the Income Tax Act and it shall be
read and construed as one with the Income Tax Act hereinafter in this
Part referred to as “the principal Act”.
(2) This Part shall come into force on such date as the
Minister responsible for finance may, by notice in the Government
Gazette, appoint, and different dates may be so appointed for different
provisions and different purposes thereof.
51. Article 5 of the principal Act shall be amended as follows > –
(a) immediately following sub-paragraph (ii) of paragraph
(a) of subarticle (1) thereof, there shall be inserted the following
new sub-paragraph>-
“(iii) gains or profits arising from a transfer of the
beneficial interest in a trust in accordance with the provisions
of subarticle (19) of this article. For the purposes of this sub-
paragraph, “transfer of the beneficial interest in a trust” shall
include a transfer of a full or partial beneficial interest in a
trust and any alienation of any such full or partial interest as
a result of a disclaimer of such interest or as a result of a
person not remaining a beneficiary of such trust<”<
(b) in paragraph (b) of subarticle (1) thereof for the words
“donation, sale by instalments” there shall be substituted the words
“donation, settlement of property on trust, distribution and reversion
of property settled on trust, sale by instalments”<
(c) paragraph (g) of subarticle (2) thereof shall be deleted
and shall be substituted by the following new paragraph>–
“(g) gains and profits relating to a transfer by donation,
settlement of property in trust, or distribution or reversion of
property settled in trust means the difference in the market
value of the property at the time of the donation, settlement,
distribution or reversion and the cost of acquisition of the
property at the time of acquisition of the property by the donor,
settlor or trustee as the case may be. The relevant instrument
pursuant to which the said transfers were effected shall include
a declaration of the said market value.”<
(d) immediately after subarticle (17) thereof there shall
be inserted the following new subarticles (18) to (26) as follows>
(18) On the settlement of property on trust, where the
“Settlement of
trust is established or evidenced by means of a written instrument
it shall be deemed, for the purposes of this article that>–
(a) no transfer had taken place where the sole
settlor is also the sole beneficiary of such trust<
(b) such property had been donated directly by
the settlor of such trust to the beneficiaries that are
persons other than the settlor himself>
Provided that –
(i) the relevant trust instrument specifically
provides that the beneficiaries have an irrevocable
vested right to receive all the property settled in
trust as specified in the said written instrument< and
(ii) the relevant trust instrument specifically
provides that the beneficiaries are, in relation to each
settlor, persons referred to in subparagraph (i) of
paragraph (e) of subarticle (2) of this article,
whether they are in existence or not at the time of
such settlement, or are persons referred to in
subparagraph (ii) of the said paragraph in each case,
such persons being either alone or with the settlor
himself< and
(iii) the beneficiaries include persons who
are in existence at the time of the settlement of such
property on trust<
(c)
no loss or gain had arisen>
Provided that –
(i) the relevant trust instrument specifically
provides that the beneficiaries of such trust
comprise only persons referred to in sub-paragraph
(i) of paragraph (e) of subarticle (2) of this article,
whether they are in existence or not at the time of
such settlement, in relation to each settlor and may
also include the said settlor himself< and
(ii) the beneficiaries of such trust include at
the time of such settlement a person who by reason
of an interdiction, incapacitation, or of a physical
or mental impairment, or by reason of an irregular
or dissolute lifestyle is substantially limited in his
ability to administer or manage the property settled
in trust, or include at the time of such settlement a
person who by reason of a physical or mental
impairment is or may become unable to fully
provide for his own maintenance, and where the
trustee of such trust provides the Commissioner
with the necessary evidence proving such
interdiction, incapacitation, impairment or inability
in the form of medical certificates, court orders or
any other relevant documents which the
Commissioner may deem necessary< and
(iii) the beneficiaries of such trust include
persons who are in existence at the time of the
settlement of such property.
(19) (a) For the purposes of the provisions of sub-
paragraph (iii) of paragraph (a) of subarticle (1) of this article,
gains or profits shall be deemed to arise on the date of the
execution of a written instrument (hereinafter in this subarticle
referred to as “transfer instrument”) whereby there is a transfer
of the beneficial interest in a trust which includes taxable trust
property. For the purposes of this subarticle “taxable trust
property” means property referred to in sub-paragraphs (i)
and (ii) of paragraph (a) of subarticle (1) of this article>
provided that this phrase includes only such property, the
transfer of which, had it been carried out directly by the
relevant beneficiary, would have given rise to gains or profits
chargeable to tax in accordance with the provisions of this
Act.
(b) The gain or profit arising from the transfer of the
beneficial interest in a trust which has taxable trust property
shall be equal to the consideration for the said beneficial
interest as declared in the relevant transfer instrument. No
deductions shall be allowable against the consideration
payable to the transferor.
(c) The gain or profit that is determined in accordance
with paragraph (b) of this subarticle shall be taxable at the
rate specified in subarticle (6) of article 56 of this Act. No
relief, reduction, credit or set-off of any kind shall be made in
respect of such tax.
(d) In addition to the requirements laid down in Sub-
Title VII of Title VI of Part II of Book Second of the Civil
Code, any person transferring the beneficial interest in a trust
which includes taxable trust property shall, within forty-five
days of the date on which the transfer instrument was executed,
provide the trustee of such trust with an authenticated copy
of the said transfer instrument and shall require the trustee to
collect an amount of tax equal to the tax determined in
accordance with the provisions of paragraph (c) for onward
payment to the Commissioner.
(e) The tax so collected by the trustee from the
transferor in accordance with the provisions of paragraph (d)
shall be a debt due from the trustee to the Commissioner
payable by not later than the fourteenth day following the
end of the month in which the trustee had collected the tax.
Together with this payment, the trustee shall provide the
Commissioner with>-
(i) an account of the gains or profits together with
a list of all the assets making up the taxable trust property
on the date the transfer instrument was executed on such
form as may be prescribed<
(ii) an authenticated copy of the relevant transfer
instrument< and
(iii) a copy of the last financial statements of the
trust.
(f) The trustee of the relevant trust shall, by not later
than fifteen days from the date when he receives
acknowledgement from the Commissioner of receipt of the
tax and documents referred to in paragraph (e), furnish the
parties to the transfer instrument with a certificate evidencing
that the tax has been paid and that his obligations under
paragraph (e) have been fulfilled.
(g) Notwithstanding the provisions of Sub-Title VII
of Title VI of Part II of Book Second of the Civil Code, any
transfer of a beneficial interest in a trust which includes taxable
trust property shall not take place and shall not have any effects
for the purposes of any law unless the said transfer is made
by means of a transfer instrument and unless the transferor
and the trustee have fulfilled their obligations in accordance
with the provisions of paragraphs (d) and (e) of this subarticle.
(h) Subject to the provisions of article 10A of the
Income Tax Management Act, the person transferring the
beneficial interest in a trust which includes taxable trust
property shall not be obliged to disclose the existence of such
gains or profits in any return made pursuant to the provisions
of the Income Tax Acts and no further tax shall be payable
on such gains or profits.
(i) The provisions of this article shall not apply -
(i) where the Commissioner is satisfied that an
irrevocable disclaimer of a beneficial interest was not
effected with the sole or main purpose of avoiding,
reducing or postponing liability to tax and where he has,
at his discretion, ordered in writing that the provisions
of this article are not applicable to such a disclaimer<
(ii) to any transfer of beneficial interest in a trust
where the trustee holds property solely for the purpose
of a designated commercial transaction as defined in
subarticle (24) of this article.
(20) (a) Where, in the administration of a trust, the
trustee transfers property of such trust, gains shall be
the administ-
ascertained in accordance with the provisions of this article
and the cost of acquisition shall be determined in accordance
with the provisions of paragraphs (b) and (c) of this
subarticle.
(b) In the case where such property had been settled
in trust in any of the circumstances described in subarticles
(18) and (24) of this article where the settlor is also a
beneficiary of the trust, the cost of acquisition shall be equal
to the cost of acquisition of such property at the time it was
originally acquired by the settlor of such trust. Where the
property had been settled in the circumstances described in
paragraph (a) of subarticle (18) or paragraph (a) of subarticle
(24) of this article, it shall be deemed for the purposes of this
article that the settlor has directly transferred such property.
(c) Subject to the provisions of paragraph (b) of
this subarticle, the cost of acquisition shall be the cost of
acquisition at the time when such property was first acquired
as trust property of that trust whether by way of settlement or
otherwise.
(21) (a) For the purposes of this article, property is
distributed to beneficiaries of a trust when the trustee transfers
property of a trust to any beneficiary of such trust provided
that such transfer does not constitute a reversion of property
settled on trust as defined in paragraph (a) of subarticle (22)
of this article.
(b) Where property which had been settled on trust
is distributed to the beneficiaries it shall be deemed that for
the purpose of this article>-
(i) no transfer took place in the case where such
property had been settled in the circumstances described
in paragraph (b) of subarticle (18) of this article provided
that the property was distributed to beneficiaries which
were not settlors of the trust<
(ii) property distributed to persons referred to
in sub-paragraph (i) of paragraph (e) of subarticle (2) of
this article in relation to the settlor, was donated directly
by the settlor to such beneficiaries where such property
had been settled in the circumstances described in
paragraph (c) of subarticle (18) of this article<
(iii) notwithstanding the relevant deeming
provisions of subarticle (18) of this article, such property
was donated directly by the original settlor of that
property to such beneficiaries where such property had
been settled in the circumstances described in paragraphs
(b) and (c) of subarticle (18) of this article and was
subsequently distributed to a beneficiary that was also a
settlor of such trust>
Provided that the said beneficiary is a person
referred to in sub-paragraph (i) of paragraph (e) of
subarticle (2) of this article in relation to the said original
settlor who had owned such property prior to its
settlement in trust.
(c) The provisions of subarticle (20) of this article
shall apply mutatis mutandis in the circumstances of a
distribution of property as they apply to the transfer of property
in the administration of a property of a trust.
(22) (a) For the purpose of this article, property
Reversion of
settled on trust reverts where there is a transfer to a person
who is the settlor of a trust (even where such person is a
beneficiary of that same trust) of property which had,
immediately before its settlement into such trust, been owned
by that same settlor.
(b) Where property which had been settled in trust
in the circumstances described in subarticle (18) of this article
reverts back to the settlor, notwithstanding the relevant
deeming provisions of subarticle (18) of this article, it shall
be deemed for the purposes of this article that such property
had never been settled into such trust.
(c) Where property had been settled into trust in
circumstances other than those described in paragraph (b) of
this subarticle, and where such property reverts back to the
settlor for the reasons referred to in article 16 of the Trusts
and Trustees Act, it shall be deemed for the purpose of this
article that no loss or gain had arisen in the event of such
reversion.
(d) The provisions of subarticle (20) of this article
shall apply mutatis mutandis in the circumstances of a
reversion of property settled on trust as they apply to the
transfer of property in the administration of a property of a
trust.
(23) In the case of a subsequent transfer of property
by a settlor or beneficiary, as the case may be>-
(a) where such property had reverted to such
settlor< or
(b) where such property was distributed to the
beneficiaries, and where>-
(i) such distribution was deemed, in
accordance with the provisions of this article, to be
a direct donation from the settlor of the trust to the
said beneficiaries of such trust< and
(ii) such property is transferred by such
beneficiaries within the period of time referred to
in paragraph (f) of subarticle (2) of this article from
the date of such deemed donation<
capital gains shall be ascertained in accordance with the
provisions of this article by taking into account the cost of
acquisition of such property at the time it was originally
acquired by the settlor of the trust before the relevant
settlement.
(24) (a) No transfer of the property shall be
deemed to have taken place>-
(i) on the settlement of property consisting of
shares in one company when the settlor who owned the
said shares prior to the settlement thereof on trust is also
the sole beneficiary of the trust<
(ii) on the settlement of property consisting of
shares in one company when the settlement is made by
more than one settlor, and the said settlors are the only
beneficiaries of the trust, and the beneficiaries are
entitled to benefit in accordance with the terms of the
trust in the same proportion as they would have done as
settlors<
(iii) on the reversion to the settlors of the shares
referred to in sub-paragraphs (i) and (ii) of this paragraph
in the same proportion which the settlors would have
been entitled to when the property was owned by them
as settlors immediately prior to the settlement<
(iv) upon the transfer of shares in one company
purchased by a trustee with money settled in trust by a
settlor for the purpose of acquiring, purchasing or
subscribing to such shares, when the said transfer is made
to the sole beneficiary of the trust who is also the original
settlor<
and in each case, the trustee is a person authorised or not
required to be so authorised to act as a trustee in terms of
articles 43 and 43A of the Trusts and Trustees Act.
(b) No transfer of the property of a trust shall be
deemed to have taken place where the trustee of such trust
transfers all the property of such trust, which transfer involves
only a change in the trustee of such trust and there is no change
in the beneficiaries or in the beneficial interest.
(c) No loss or gain shall be deemed to have arisen
where property is settled into a trust and where the trustee
holds such property for the purpose of designated commercial
transactions or where such property so settled reverts to the
settlor. Where such property is transferred by the trustee of
such trust to its beneficiaries (or to any person through a
judicial sale or otherwise), the cost of acquisition shall be the
cost at which the settlor of such trust had acquired the said
property. In such a case, the provisions of subarticle (10) of
this article can be availed of by the settlor in the same manner
as if the transfer of the property by the trustee had been made
directly by the settlor himself. Where such property is not so
transferred but reverts to the settlor, or where the settlor waives
his right to a reversion of the property, and there is a
subsequent transfer of such property, the cost of acquisition
shall be the cost at which the settlor had acquired the said
property prior to its settlement into the said trust. Subject to
the approval of the Commissioner, the provisions of this sub-
paragraph shall also be applicable where a property is settled
into a trust for the purpose of a commercial transaction not
being a designated commercial transaction. For the purposes
of this sub-paragraph, “designated commercial transactions”
means the custody of investment instruments, the
establishment or holding of real or personal security interests
(including hypothecs, privileges, pledges and guarantees), and
any other commercial transaction which may be prescribed,
while “commercial transaction” shall have the meaning
assigned to it in article 2 of the Trusts and Trustees Act.
(25) (a) Where a person that is authorised or not
required
to be so authorised to act as a trustee in terms of
articles 43 and 43A of the Trusts and Trustees Act holds in
relationships.
its own name shares in a company on behalf of the beneficial
owner of such shares, and where such person transfers or
otherwise disposes of the beneficial ownership of such shares
to a third party, such a transaction shall be deemed to constitute
a transfer of shares for the purposes of this article.
(b) Where a change in the registered holder of shares
in a company does not involve a change in the beneficial
ownership thereof, such change shall not be deemed to
constitute a transfer of shares for the purposes of this article
provided that the registered holder of such shares remains a
person authorised or not required to be so authorised to act as
a trustee in terms of articles 43 and 43A of the Trusts and
Trustees Act.
(c) For the purposes of this subarticle “beneficial
owner” means a person who is the real owner of, or who is
otherwise beneficially entitled to, the shares which are
subscribed or held on his behalf and in his interest by a person
authorised or not required to be so authorised to act as a trustee
in terms of articles 43 and 43A of the Trusts and Trustees Act
and “beneficial ownership” shall be construed accordingly.
(d) When the shares referred to in this subarticle are
transferred either by the trustee to a person other than the
settlor or by the settlor to a third party after the shares have
reverted to the settlor, the acquisition cost shall be deemed to
be the cost of acquisition of the shares by the settlor when the
shares were originally purchased or subscribed by the settlor
prior to the shares being settled into the trust.
(26) The Minister may make regulations
determining the method of calculation of capital gains in
relation to transfers involving trusts and to prescribe any
matter that may be prescribed in relation to such transfers.”.
52. Immediately after article 27A of the principal Act there Addition of new
articles 27B to 27D
shall be added the following new articles 27B to 27D>
to the principal Act.
“Taxation of
27B. (1) Where at least one of the trustees of a trust
is a person resident in Malta, tax shall be payable on any
income attributable to a trust accruing or deriving in the year
immediately preceding the year of assessment commencing
on such date as the Minister responsible for finance may, by
notice in the Government Gazette, appoint and for each
subsequent year.
(2) For the purposes of this article, “income
attributable to a trust” means the aggregate of any relevant
income referred to in article 4 of this Act which has accrued
to or is derived by a trustee or trustees of a trust from property
which was settled in such trust and from property which was
acquired in the administration of such trust including any
income from the employment of such property.
27C. The trustee of a trust shall be answerable for doing
all matters and things required to be done under the Income
Tax Acts for the purposes of the determination, assessment
and payment of tax in connection with the income attributable
to a trust. Where two or more persons act in the capacity of
trustees of the same trust, they shall be jointly and severally
so answerable.
27D. (1) (a) The trustee of a trust that has been
Trusts treated
companies. granted authorisation under subarticle (3) of Article 43 of the
Trusts and Trustees Act where such trustee is a person resident
in Malta (hereinafter a resident trustee) may elect, in
accordance with the provisions of this subarticle, to have the
income attributable to a trust treated in the manner provided
for in paragraph (c) of this subarticle. Such election, which
shall be irrevocable, is to be effected on the date of the
establishment of such trust, or the date of appointment of the
said resident trustee, whichever is the later, and is to be made
on such form and under such conditions as may be prescribed.
The said trustee shall submit such form to the Commissioner
not later than 30 days from the date of the establishment of
such trust or the appointment of a resident trustee whichever
is the later.
(b) An election as provided for in this subarticle may
only be made where the trust is established by a written
instrument which specifically provides that the income
attributable to a trust shall comprise only of income in the
form of royalties, dividends, capital gains, interest, rents or
any other income from investments. For the purposes of
paragraph (c) of this subarticle, such income shall not
constitute income from a trade, business, profession or
vocation.
(c) Where an election has been made in accordance
with the provisions of this subarticle, the trustee of such trust
shall compute the chargeable income in relation to the income
attributable to a trust for the relevant year of assessment as if
such income was derived by a company ordinarily resident
and domiciled in Malta. Tax thereon shall be charged at the
rate specified in subarticle (6) of article 56 of this Act and
payable in the same manner applicable to such companies.
Distributable profits shall be allocated in the same manner
applicable to such companies and distributions of such
allocated profits to beneficiaries of such trust shall be treated
as if they were dividends distributed to shareholders of such
a company. For the purposes of this subarticle, distributable
profits of a trust shall mean the total profits which would be
available for distribution to the beneficiaries resulting from
the income attributable to a trust. The trustee shall keep all
records and submit all returns and documents to the
Commissioner as is required in the case of such companies.
Where the Income Tax Acts require documents which are to
comply with the Companies Act, the trustee shall submit
similar documents, certified by a certified public auditor, and
which are either provided for under the Trusts and Trustees
Act or, in the absence of such provision, which comply as far
as is possible, with the Companies Act.
(2) The trustee of a trust where such trustee is a
person in possession of a valid licence issued in terms of the
Banking Act or the Financial Institutions Act may apply to
the Commissioner for a determination that property has been
settled into such trust as a result or consequence of another
transaction or set of transactions, and that the duration of such
trust is of a temporary nature lasting only until such time as is
necessary so that the said transaction or transactions may be
effectively concluded. Such an application may be made on
such form and under such conditions as may be prescribed.
Where the Commissioner makes, at his discretion, such a
determination>-
(i) no deduction or exemption contemplated by
this Act shall be allowable or granted in relation to the
income attributable to a trust< and
(ii) the said income shall be taxable at the rate
specified in subarticle (6) of article 56 of this Act< and
(iii) the tax payable as provided for in this
subarticle shall not be reduced whether by way of relief
of double taxation or otherwise, and no set-off or credit
shall be made or allowed in respect of such tax. The
resulting tax shall be payable by such time as may be
prescribed< and
(iv) the trustee of such trust shall declare such
income and property settled in trust on such form as may
be prescribed and no further disclosure of such income
shall be required by the beneficiaries of such trust< and
(v) no further tax shall be payable on such income.
(3) (a) Where neither an election in accordance
with subarticle (1) nor a determination in accordance with
subarticle (2) has been made the provisions of paragraphs
(b), (c), (d) and (e) of this subarticle shall apply.
(b) In the case where –
(i) all the income attributable to a trust consists
of income either arising outside Malta or income referred
to in paragraph (c) of subarticle (1) of article 12 of this
Act< and
(ii) all the beneficiaries of the trust are persons
who are either not ordinarily resident in Malta or not
domiciled in Malta, or are persons whose income is
totally exempt from tax under the provisions of article
12 of this Act<
it shall be deemed that such income is not income attributable
to a trust but is income derived directly by such beneficiaries,
and that where the income arising outside Malta is received
in Malta by the trustee of the trust, it shall be deemed to be
received in Malta by such beneficiaries. The trustee shall
notify the beneficiary of such income and shall inform him
of his duties under the Income Tax Acts.
(c) In the case where the income attributable to a
trust comprises solely income referred to in sub-
paragraph (i) of paragraph (b) of this subarticle or
dividends distributed out of the profits allocated to the
foreign income account or out of the profits of an
international trading company which were derived by
such company whilst it was an international trading
company, or both such income and dividends, and all
the beneficiaries of such trust are persons not resident
in Malta, and the trustee of such trust provides the
Commissioner with a certificate as referred to in
subarticle (3) of article 5 of the Income Tax Management
Act, it shall be deemed that such income does not
constitute income attributable to a trust and that such
income is derived directly by such beneficiaries.
(d) Without prejudice to the provisions of paragraphs
(b) and (c) of this subarticle, capital gains derived in
accordance with the provisions of article 5 of this Act from
the transfer of property settled in trust in the administration
of such trust or in the distribution or reversion of such property
shall form part of the income attributable to a trust.
(e) The chargeable income in relation to the income
attributable to a trust shall be computed as if the trust was a
person that is ordinarily resident and domiciled in Malta but
shall exclude amounts of income attributable to a trust
allocated to beneficiaries as determined in accordance with
the provisions of subarticle (4) of this article.
(4) For the purpose of paragraph (e) of subarticle (3)
of
this
article>-
beneficiaries.
(a) amounts of income attributable to a trust
allocated to beneficiaries shall consist of -
(i) amounts over which beneficiaries had a
vested right in the year immediately preceding the
year of assessment< and
(ii) amounts over which an entitlement had
been bestowed to beneficiaries other than in the
manner referred to in subparagraph (i) of this
paragraph, and where such entitlement had been so
bestowed by the end of the year immediately
preceding the year of assessment< and
(iii) amounts representing income
attributable to a trust for the year of assessment
which were distributed to beneficiaries by the end
of the year immediately preceding the year of
assessment, and which amounts do not form part
of the amounts referred to in subparagraphs (i) and
(ii) of this paragraph.
(b) In order that the amounts referred to in
paragraph (a) of this subarticle may be excluded in terms
of paragraph (e) of subarticle (3) of this article, the trustee
must ensure that>-
(i) the return referred to in article 24A of the
Income Tax Management Act has been submitted
in accordance with the provisions of that same
article< and
(ii) he has furnished the beneficiaries in
question with a certificate indicating, for the relative
year of assessment and where applicable, the
relevant amounts referred to in paragraph (a) of this
article on such form and giving such additional
details as may be prescribed< and
(iii) where the amounts referred to in
subparagraphs (i) and (ii) of paragraph (a) of this
subarticle were not distributed to the beneficiaries
by the 31 st March following the end of the year
immediately preceding the relevant year of
assessment, a payment of tax has been made on
behalf of the beneficiaries equivalent to the tax
which would result were the said amounts charged
to tax at the rate specified in subarticle (6) of article
56 of this Act. Where such distribution is not made
by the said date, this tax becomes a debt due from
the relevant trustee to the Commissioner payable
by not later than the 30 th June following the end of
the said year. The tax so paid shall be available as a
credit against the beneficiary’s tax liability, or for
a refund as the case may be, for the relevant year of
assessment.
(5) Except as provided in subarticle (4) of article 56
of this Act, tax shall be charged upon the chargeable income
in relation to the income attributable to a trust at the rate
specified in subarticle (6) of article 56 of this Act.
(6) (a) Where foreign tax has been paid on the income
attributable to a trust, such tax shall be deemed to have been
paid by a trustee of such trust, whether it was paid by a trustee
or a beneficiary of such trust.
(b) A claim for relief of double taxation with
respect to the tax referred to in paragraph (a) of this paragraph,
may only be made through the provisions of articles 79 to 88
of this Act. Any reference in these articles to a person, shall,
for the purposes of this subarticle, be deemed to be a reference
to a trustee of a trust while any reference to income or income
of a person, shall be deemed to be a reference to the income
attributable to a trust.
(7) Unless otherwise provided for in this article, no
person shall be charged to further tax under this Act in respect
of income attributable to a trust which has been charged to
tax in accordance with the provisions of subarticles (1), (2)
and (3) this article.
(8) (a) Amounts allocated to beneficiaries referred
Beneficiaries.
to in paragraph (a) of subarticle (4) of this article shall be
aggregated with other income of the said beneficiaries for
the purposes of article 4 of this Act and tax shall be charged
accordingly for the year of assessment commencing on such
date as the Minister responsible for finance may, by notice in
the Government Gazette, appoint and for each subsequent
year of assessment.
(b) Amounts allocated to beneficiaries referred
to in paragraph (a) of subarticle (4) of this article shall be
treated as income derived by the beneficiary at the time it
vests, or the beneficiary becomes entitled to it, or it is
distributed, as the case may be.
(c) Income distributed to beneficiaries shall retain
its character as to type and country of source. A claim for
relief of double taxation with respect to such income may be
made in accordance with the provisions referred to in article
74 of this Act notwithstanding that foreign tax may have been
paid by the trustee or the beneficiary himself.
Interpretation.
(9) (a) For the purposes of this article the terms
“beneficiary”, “settlor”, “trust” and “trustee” shall have the
meaning assigned to them by article 2 of the Trusts and
Trustees Act.
(b) Words and expressions used in this article and in
other parts of the Income Tax Acts which relate to the income
attributable to a trust, shall, in so far as their meanings are not
defined by the Income Tax Acts, have the meaning assigned
to them in the Trusts and Trustees Act and any rules and
regulations made thereunder.
(10) (a) Where in the opinion of the Commissioner,
transactions involving a trust are carried out with the sole or
main purpose of reducing the amount of tax payable by a
person, the Commissioner shall disregard such trust and the
income of such person shall be determined as if it had been
derived without the involvement of such trust.
(b) Article 57 of the Income Tax Management
Act shall apply mutatis mutandis in the circumstances relating
to trustees. References in that article to>
(i) “warrant holder” shall be construed as
references to any person acting as trustee as provided
for under the Trusts and Trustees Act<
(ii) “Board” shall be construed as references to
the Malta Financial Services Authority<
(iii) “article 14(1)(a)(i) of the Accountancy
Profession Act” shall be construed as references to article
51 of the Trusts and Trustees Act<
(iv) “documents” shall be construed as references
to any document required to be produced by a trustee in
relation to a trust under Maltese law<
(v) “1 st January, 1998” shall be construed as
references to the date of the coming into force of the
Trusts and Trustees Act.”
53. In subarticle (2) of article 30 of the principal Act, for the
words “allied institution, trust, foundation” there shall be substituted
the following words “allied institution, foundation”.
Amendment of
In subarticle (10) of article 56 of the principal Act>
54. article 56 of the
principal Act.
(a) in paragraph (b) thereof, for the words “15c on every
lira.” there shall be substituted the words “15c on every lira<”<
(b) immediately after paragraph (b) thereof, there shall be
included the following new paragraph>
“(c) Where income has been deemed to be derived
directly under the provisions of paragraph (b) of subarticle
(3) of article 27D of this Act by an individual who has been
granted a residence permit under article 7 of the Immigration
Act, such income shall be charged to tax at the rate of 15
cents on every lira as if such income constitutes separate
chargeable income.”.
Article 61 of the principal Act shall be amended as follows>– Amendment of
55. article 61 of the
principal Act.
(a) in the Maltese text only, paragraphs (i) and (ii) shall be
renumbered as (a) and (b), while sub-paragraphs (a) and (b) shall
be renumbered as (i) and (ii)< and
(b) in subparagraph (ii) of paragraph (a) thereof, for the
words “and domiciled in Malta<” there shall be substituted the
words “and domiciled in Malta< or”< and
(c) immediately after sub-paragraph (ii) of paragraph (a)
thereof there shall be included the following new sub-paragraph>-
“(iii) a trustee of a trust where the beneficiaries of such
trust are persons referred to in paragraphs (i) and (ii) of this
subarticle<”<
Article 70 of the principal Act shall be amended as follows>- Amendment
56. article 70 of the
principal Act.
(a) in subarticle (1) thereof, for the word “trustee” wherever
it occurs, there shall be substituted the word “administrator”< and
(b) in subarticle (2) thereof the word “trust,” shall be deleted<
and for the words “a trustee” there shall be substituted the words
“an administrator”.
Article 72 of the principal Act shall be deleted.
57. PART V
AMENDMENTS TO THE EXTERNAL
TRANSACTIONS ACT, CAP. 233
58. (1) This Part amends and shall be read and construed as
one with the External Transactions Act, hereinafter referred to as “the
principal Act”.
(2) This Part shall come into force on such date as the
Minister responsible for finance may, by notice in the Government
Gazette, appoint.
59. Subarticle (1) of article 2 of the principal Act shall be
amended as follows>-
(a) for the definition of “non-resident” there shall be
substituted the following new definition>-
“ “non resident” means>
(a) any person, body corporate or other entity
which is not a resident<
(b) any resident trustee in terms of a trust where
any of the beneficiaries are non-resident and in the case
of a discretionary trust, where the power of appointment
or any discretion may be exercised in favour of any non-
resident”< and
(b) for the definition of “resident” there shall be substituted
the following new definition>-
“ “resident” means>
(a) any natural person regardless of nationality
whose place of business is ordinarily in Malta or in a
Member State or who has resided in or has the intention
to reside in Malta or in a Member State for a continous
period of one year<
(b) any body corporate incorporated in or under
the laws of Malta or of a Member State, or any entity
which operates from or is otherwise registered in Malta
or in a Member State<
(c) any trustee in terms of a trust whose place of
residence is ordinarily outside Malta or any Member
State but where all the beneficiaries of the trust are
determined and are residents and in case of a
discretionary trust where the power of appointment or
any discretion may be exercised only in favour of
residents.”.
PART VI
AMENDMENTS TO THE MERCHANT SHIPPING ACT,
60. (1) This Part amends and shall be read and construed as Amendment to the
Merchant Shipping
one with the Merchant Shipping Act, hereinafter referred to as “the Act, Cap. 234.
principal Act”.
(2) This Part shall come into force on such date as the
Minister responsible for merchant shipping may, by notice in the
Government Gazette, appoint.
61. In subarticle (4) of article 38 of the principal Act after the Amendment of
words “any other enactment.” there shall be inserted the words “Any subarticle
article 38 of the
such security trust shall be governed by the provisions of article 2095E principal Act.
of the Civil Code when the applicable law is the law of Malta.”.
PART VII
AMENDMENTS TO THE IMMOVABLE PROPERTY
(ACQUISITION BY NON-RESIDENTS) ACT, CAP. 246
62. (1) This Part amends and shall be read and construed as Amendments to the
Immovable Property
one with the Immovable Property (Acquisition by Non-Residents) Act, (Acquisition by
hereinafter referred to as “the principal Act”.
Non-Residents) Act,
(2) This Part shall come into force on such date as the Minister
responsible for finance may, by notice in the Government Gazette, appoint.
Article 2 of the principal Act shall be amended as follows>- Amendment of
63. article 2 of the
principal Act.
(a) in paragraph (c) of the definition of “non-resident
person” there shall be deleted the word “trust,” and in sub-paragraph
(iii) thereof, for the words “ or is registered in the name of a
company licensed to act as a nominee company” there shall be
inserted the words “or is registered in the name of a trustee for the
benefit of a non-resident person”<
(b) immediately after paragraph (c) there shall be added a
new paragraph (d) as follows>-
“(d) any trustee in terms of a trust who is>
(i) a non-resident person unless all the
beneficiaries of the trust are determined and are residents
of Malta and in case of a discretionary trust where the
power of appointment or any discretion may be exercised
in favour of residents of Malta<
(ii) a resident of Malta where any of the
beneficiaries are non-resident persons and in case of a
discretionary trust, where the power of appointment or
any discretion may be exercised in favour of any non-
resident person<”.
PART VIII
AMENDMENTS TO THE LAND REGISTRATION ACT,
64. (1) This Part amends and shall be read and construed as
one with the Land Registration Act, hereinafter referred to as “the
principal Act”.
(2) This Part shall come into force on such date as the
Minister responsible for land registration may, by notice in the
Government Gazette, appoint, and different dates may be so appointed
for different provisions and different purposes thereof.
65. Sub-paragraph (a) of subarticle (1) of Article 12 of the
principal Act shall be deleted and substituted by the following>-
“(a) every contract conveying the ownership of
immovable property, or any real right over such property including
transactions relating to immovable property under trusts, or
whereby any act having the effect of conveying the ownership of
immovable property or any real right over such property, is
dissolved, rescinded or revoked, and every contract creating or
varying such right or whereby any such right is converted into any
other of such rights or is waived, and every contract whereby
immovable property is partitioned, and every act having a
declaratory effect as to the ownership of, or any real right over,
immovable property (including a deed made for a purpose of the
Duty on Documents and Transfers Act, 1993 and an inventory
drawn by a trustee accepting a testamentary trust and a unilateral
declaration of trust with regard to additional trust property, but
excluding any other deed of inventory), and every contract of
antichresis< and”.
66. In Article 24 of the principal Act, immediately after the words “only Amendment of
article 24 of the
for a limited period,” there shall be inserted the words “or is owned under trusts.” principal Act.
67. In paragraph (a) of Article 25 of the principal Act immediately Amendment of
article 25 of the
after the word “the owner,” there shall be inserted the words “a trustee,”. principal Act.
PART IX
AMENDMENTS TO THE MALTA FINANCIAL SERVICES
AUTHORITY ACT, CAP. 330
68. (1) This Part amends and shall be read and construed as Amendments to the
Malta Financial
one with the Malta Financial Services Authority Act, hereinafter in this Services Authority
Part referred to as “the principal Act”.
Act, Cap. 330.
(2) The provisions of this Part shall come into force on such
date as the Minister responsible for finance, may by notice in the Gazette
establish and different dates may be so established for different
provisions or different purposes of this Part.
Article 18 of the principal Act shall be amended as follows> Amendments of
69. article 18 to the
principal Act.
(a) the present provision shall be renumbered as subarticle
(1) thereof< and
(b) immediately after subarticle (1) thereof as renumbered
there shall be added the following new subarticle (2)>-
“(2) The Authority may, subject to such conditions it
may deem fit to impose and to such procedures as may be
applicable according to law, disclose information to overseas
central banks and other authorities responsible for monetary
policy and, where appropriate to other overseas public
authorities responsible for overseeing payment systems, where
such information relates and is connected to their respective
functions in terms of law.”.
70. Immediately after article 20A of the principal Act, there shall Addition of new
articles 20B and
be added the following two new articles 20B and 20C>-
20C to the principal
Act.
20B. (1) The Minister may, acting on the advice of the
Conglomerates.
Authority, make regulations for the transposition of Directive
2002#87#EC of the European Parliament and of the Council
of 16 December 2002 and to provide for the supplementary
supervision of credit institutions, financial institutions,
insurance undertakings and investment firms in a financial
conglomerate, and to otherwise regulate the supervision of
financial conglomerates and financial groups with cross-
sectoral financial activities.
(2) Regulations made by the Minister in virtue of
subarticle (1) shall, in particular and without prejudice to the
authority vested in the Minister by the said subarticle>
(a) provide for the appointment of a coordinator
responsible for coordination and examination of
supplementary supervision, for the assessment of the
financial situation of a group, including solvency
requirements, risk concentration and intra-group
transactions, and the means for obtaining from the
entities within a financial group and from other
competent authorities, the information necessary for the
performance of this supplementary supervision and may
provide for consultation and the sharing and exchange
of information with overseas competent authorities, as
may be necessary<
(b) provide for the establishment and imposition
of administrative penalties or other measures for the
contravention of any of the regulations, and to provide
for appeals therefrom to the Financial Services Tribunal.
20C. Regulations which are required to be issued
by the Minister upon the advice of the Authority or after
consultation therewith under any Act in respect of which the
Authority has been appointed as the competent authority, may
be made in the English language only.”.
PART X
AMENDMENTS TO DUTY ON DOCUMENTS AND
TRANSFERS ACT, CAP. 364
71. (1) This Part amends and shall be read and construed as one
with Duty on Documents and Transfers Act, hereinafter referred to as
“the principal Act”.
(2) This Part shall come into force on such date as the
Minister responsible for finance may, by notice in the Government
Gazette, appoint, and different dates may be so appointed for different
provisions and different purposes thereof.
72. Immediately after article 32A of the principal Act, a new
article to be numbered 32B shall be inserted as follows>-
32B. (1) Notwithstanding any other provisions of this
Act,
no
duty shall be chargeable on any transfer of immovable
property or any real right over an immovable property>
(a) by a settlor to the trustees of a trust of which
the settlor is the sole beneficiary and where the settlor has
an irrevocable vested right to receive the trust property<
(b) by a settlor to the trustees of a trust created
for the purpose of a designated commercial transaction<
(c) by a settlor to the trustees of a trust created for
the purpose of a commercial transaction not being a
designated commercial transaction but which has been
approved by the Commissioner for the purposes of this
paragraph<
(d) between trustees consequent to a change in
the trustees (whether by addition, substitution or
otherwise) holding the immovable property upon trust
provided that no beneficial interest in the trust is also
transferred upon such change in trustees<
(e) by trustees to the settlor where the trust
property reverts back to the settlor< and
(f) by trustees to a beneficiary of the trust where
duty has been previously charged on the initial transfer
by the settlor to the trustees in accordance with subarticle
(1) of article 32< provided that duty shall be chargeable
in relation to any increase in value between the date of
the initial transfer to the trustees and the subsequent
distribution to the beneficiaries>
Provided that in all cases the trust must be established
or evidenced by means of a written instrument.
For the purposes of this subarticle, “designated
commercial transactions” means the custody of
investment instruments, the establishment or holding
of real or personal security interests (including
hypothecs, privileges, pledges and guarantees), and any
other commercial transaction which may be prescribed,
while “commercial transaction” shall have the meaning
assigned to it in article 2 of the Trusts and Trustees Act.
(2) Where a beneficiary under a trust for
immovable property assigns or otherwise transfers inter vivos
to a third party his beneficial interest in such trust, such a
transfer shall be deemed to constitute a transfer for the
purposes of this Act, and the transfer value shall be deemed
to be the amount limited to that part of the value of the
immovable property which is proportionate to the value of
the beneficial interest transferred by such beneficiary.
(3) The provisions of sub article (2) of this article shall
apply mutatis mutandis in those cases when there is any change
in beneficiary, including a disclaimer or renunciation whether
in full or in part of a beneficiary’s entitlement under a trust<
Provided that where the Commissioner is satisfied that
an irrevocable disclaimer of a beneficial interest was not
effected with the sole or main purpose of avoiding, reducing
or postponing liability to duty, he may at his discretion order
in writing that the provisions of this subarticle shall not apply
to such a disclaimer and that no duty shall be chargeable.”.
73. In subarticle (6) of article 33 of the principal Act, immediately
after the words “testamentary executors” there shall be inserted the words “and
trustees”.
74. In article 34 of the principal Act immediately after the words
“as may be prescribed.” there shall be inserted a new paragraph as follows>-
“For the purpose of determining the applicability of the
benefits of this Article whenever the immovable property or real
rights thereon are held on trust, reference shall be made to the
beneficiaries of the trust as indicated in the declaration, and the
trustee shall be ignored for such purpose.”.
Article 35 of the principal Act shall be amended as follows>-
75. (a) subarticles (3) to (6) shall be renumbered as subarticles
(4) to (7) respectively<
(b) immediately after subarticle (2) there shall be added a
new subarticle (3) as follows>-
“(3) For the purpose of determining the applicability
of the benefits referred to in subarticles (1)(a) and (2) of this
Article whenever the dwelling house is transferred causa
mortis to a trustee, reference shall be made to the beneficiaries
of the trust as indicated in the declaration, and the trustee
shall be ignored for such purpose. No reference to the
beneficiaries of a trust shall be made for the purpose of
subarticle (1)(b) of this article.”< and
(c) in subarticle (6) as renumbered, immediately after the
words “which is not merely potestative” there shall be inserted the
words “or of a transfer causa mortis upon trust”.
76. Immediately after article 42 of the principal Act, a new article Addition of new
article 42A to the
to be numbered 42A shall be inserted as follows>-
principal Act.
42A. The provisions of Article 32B shall apply
mutatis mutandis to any transfers of marketable securities,
applicable to
and references to “immovable property” in Article 32B shall
be construed as references to “marketable securities” for the
purposes of this article.”.
77. In subarticle (4) of article 47 of the principal Act, for the Amendment
article 47 of the
words “are held by persons who” there shall be substituted by the words principal Act.
“are held by persons who, or by a trustee of a trust the beneficiaries of
which are all persons who”.
PART XI
AMENDMENTS TO THE INVESTMENT SERVICES
ACT, CAP. 370
78. (1) This Part amends and shall be read and construed as one with Amendments to the
Investment Services
the Investment Services Act, hereinafter referred to as “the principal Act”.
Act, Cap. 370.
(2) This Part shall come into force on such date as the
Minister responsible for finance may, by notice in the Government
Gazette, appoint, and different dates may be so appointed for different
provisions and different purposes thereof.
Article 12 of the principal Act shall be amended as follows> Amendment to
79. article 12 of the
principal Act.
(a) paragraphs (j) and (k) of subarticle (1) thereof shall be
respectively re-numbered as (l) and (m)<
(b) immediately after paragraph (i) of subarticle (1) thereof,
there shall be added the following new paragraph (j)>-
“(j) transpose the requirements of Directive 2002#87#EC
of the European Parliament and of the Council of 16 December
2002 on the supplementary supervision of credit institutions,
insurance undertakings and investment firms in a financial
conglomerate, as may be applicable to a licence holder<”.
80. Paragraph 4 of the First Schedule to the principal Act shall Amendment
First Schedule to the
be amended as follows>-
principal Act.
(a) in sub-paragraph (a) the words “this Schedule< or”
shall be substituted by the words “this Schedule>”<
(b) immediately after sub-paragraph (a) there shall be
added the following proviso>-
“Provided that for the purposes of this sub-paragraph any
person who is authorised or otherwise exempt from authorisation
in the terms of Article 43 or 43A of the Trusts and Trustees Act
shall not by virtue of holding such assets be required to have a
licence in terms of this sub-paragraph if such person does not
provide an investment service and delegates all activities which
are investment services in terms of this Act to a person who is
licenced to provide such services< or”<
(c) in sub-paragraph (b) of the said paragraph the words
“investment service< or” shall be substituted by the words
“investment service>”< and
(d) immediately after sub-paragraph (b) thereof there shall
be added the following proviso>-
“Provided that for the purposes of this paragraph any person
who is authorised or otherwise exempt from authorisation in the
terms of Article 43 or 43A of the Trusts and Trustees Act shall not
by virtue of holding such assets be required to have a licence in
terms of this Act.”
PART XII
AMENDMENTS TO THE BANKING ACT, CAP. 371
81. (1) This Part amends and shall be read and construed as
one with the Banking Act, hereinafter in this Part referred to as “the
371. principal Act”.
(2) This Part shall come into force on such date as the
Minister responsible for finance may, by notice in the Government
Gazette, appoint, and different dates may be so appointed for different
provisions and different purposes thereof.
82. In subarticle (1) of article 2 of the principal Act, in the
definition of “competent authority” for the words “article 3(2)” there
shall be substituted the words “article 3(1)”.
83. In subarticle (3) of article 13 of the principal Act, for the
words “ listed a stock exchange licensed under the Financial Markets
Act” there shall be substituted the words “listed on a recognised
investment exchange in terms of the Financial Markets Act”.
84. Immediately after article 29A of the principal Act, there shall Addition
articles 29B and
be added the following new articles 29B and 29C>-
29C. “29B. The Minister may, after consultation with the “Financial
competent authority, make regulations for the transposition conglomerates.
of Directive 2002#87#EC of the European Parliament and of
the Council of the European Union of 16 December 2002 on
the supplementary supervision of credit institutions, insurance
undertakings and investment firms in a financial
conglomerate, as may be applicable to credit institutions.
29C. Regulations made under this Act and any Language of
amendment thereto or revocation thereof may be made in the regulations.
English language only.”.
PART XIII
AMENDMENTS TO THE INCOME TAX
MANAGEMENT ACT, CAP. 372
(1) This Part amends the Income Tax Management Act and Amendments to the
it shall be read and construed as one with the Income Tax Management Income
Management Act,
Act hereinafter in this Part referred to as “the principal Act”.
(2) This Part shall come into force on such date as the
Minister responsible for finance may, by notice in the Government
Gazette, appoint, and different dates may be so appointed for different
provisions and different purposes thereof.
Article 5 of the principal Act shall be amended as follows>- Amendment of
article 5 of the
principal Act.
(a) in subarticle (3) thereof, for the words “is licensed
under article 51A of the Malta Financial Services Centre Act” there
shall be substituted the words “had been licensed under article
51A of the Malta Financial Services Authority Act and until such
time that he is so licensed or is authorised or otherwise permitted
to act as a trustee under article 43 or 43A of the Trusts and Trustees
Act”< and
(b) in subarticle (4) thereof, for the words “A licensed
nominee shareholder who” there shall be substituted the words
“A person referred to in subarticle (3) of this article who”.
In subarticle (1) of article 24 of the principal Act, for the Amendment of
article 24 of the
words “Where any person in any capacity whatsoever” there shall be principal Act.
substituted the words “Where any person in any capacity whatsoever,
but not in the capacity of a trustee of a trust”.
Immediately after article 24 of the principal Act there shall
be added the following new articles 24A and 24B>-
“24A. (1) The Commissioner may give notice to a
trustee of a trust requiring him to furnish, within the time
limited by such notice, not being less than 30 days from the
date of service of such notice, a return containing>–
(a) a true and correct statement, certified by a
warrant holder referred to in article 57 of this Act, of the
income attributable to such trust as referred to in article
27B of the Income Tax Act< and
(b) (i) the names and addresses of those
beneficiaries to whom income has been allocated as
provided in subarticle (4) of article 27D of the Income
Tax Act, together with the relative amounts so allocated<
and
(ii) the amount, date of allocation, type and
country of source of the income so allocated for
each beneficiary referred to in subparagraph (i) of
this paragraph.
(2) (a) A return under the provisions of this
article shall be deemed to be a return required to be furnished
under the provisions of article 10 of this Act.
(b) A trustee who issues a false certificate
to the Commissioner shall be guilty of making a false
statement within the meaning of paragraph (b) of subarticle
(1) of article 52 of this Act.
24B. Where –
(a) the settlor of a trust is a person resident in
Malta< and
(b) none of the trustees of such trust is a person
resident in Malta< and
(c) property is settled into such trust after such
date as the Minister responsible for finance may, by
notice in the Gazette, appoint,
the said settlor shall inform the Commissioner of the property
so settled together with a copy, where applicable, of the
relevant trust instrument or of any other document evidencing
the existence of such trust. This information shall be submitted
to the Commissioner by not later than 30 days from the date
of the relevant settlement. Any settlor who fails to comply
with the provisions of this article shall be guilty of an offence
and liable on conviction to a fine (multa) of not less than 50
liri and not exceeding 500 liri and to a further fine (multa) of
not less than 2 liri but not exceeding 10 liri for every day
during which the offence continues after the lapse of the said
30 days.”.
Immediately after article 42 of the principal Act there shall Addition of new
article 42A to the
be inserted the following new article 42A>-
principal Act.
42A. Notwithstanding anything contained in article 42
within which
of this Act, tax payable on the income attributable to a trust
as defined in article 27B of the Income Tax Act for any year
of assessment, shall be paid not later than the tax settlement
date as defined in the Income Tax Acts.”.
Paragraph (a) of subarticle (1) of article 43 of the principal Amendment of
article 43 of the
Act shall be amended as follows>
principal Act.
(a) in sub-paragraph (iii) thereof, for the words “31st
October, 2004” there shall be substituted the words “31st October,
2005”<
(b) in sub-paragraph (iv) thereof for the words “15th
December, 2004” there shall be substituted the words “15th
December, 2005”.
PART XIV
AMENDMENTS TO THE RECOGNITION OF TRUSTS ACT,
As from the date established by notice in the Gazette by the Amendment to the
Minister responsible for finance the Recognition of Trusts Act shall be Recognition
Trusts Act, Cap.
repealed.
374. PART XV
AMENDMENTS TO THE FINANCIAL INSTITUTIONS ACT,
(1) This Part amends and shall be read and construed as one
with the Financial Institutions Act, hereinafter in this Part referred to as
“the principal Act”.
(2) This Part shall come into force on such date as the
Minister responsible for finance may, by notice in the Government
Gazette, appoint, and different dates may be so appointed for different
provisions and different purposes thereof.
Immediately after subarticle (2) of article 12 of the principal
Act, there shall be added the following new articles 12A and 12B>-
12A. The Minister may, after consultation with the
conglomerates.
competent authority, make regulations for the transposition
of Directive 2002#87#EC of the European Parliament and of
the Council of the European Union of 16 December 2002
and to provide for the supplementary supervision of financial
institutions in an financial conglomerate.
12B. Regulations made under this Act and any
Language of
amendment or revocation of such may be made in the English
language only.”.
PART XVI
AMENDMENTS TO THE COMPANIES ACT,
(1) This Part amends and shall be read and construed as one
with the Companies Act, hereinafter in this Part referred to as “the
principal Act”.
(2) This Part shall come into force on such date as the
Minister responsible for finance may, by notice in the Government
Gazette, appoint, and different dates may be so appointed for different
provisions and different purposes thereof.
Immediately after subarticle (2) of article 16 of the principal
Act, there shall be inserted the following new subarticle (3)>
“(3) The registration of a partnership by the Registrar
under this article shall be without prejudice to any other licence
or other authorisation as may be required in respect of the
activities to be carried on by the partnership under any other
law.”.
Article 70 of the principal Act shall be amended as follows>- Amendment
article 70 of the
principal Act.
(a) for subarticle (5) thereof, there shall be substituted the
following>-
“(5) A company shall not be registered by a name
which includes the word “fiduciary”, “nominee” or “trustee”,
or any abbreviation, contraction or derivative thereof, unless
such company is authorised to act as a trustee in terms of the
applicable laws of Malta, or unless otherwise permitted to do
so by the relevant competent authority.”< and
(b) for paragraph (b) of subarticle (6) thereof, there shall be
substituted the following>-
“ (b) under a name or title which contains the words
“fiduciary”, “nominee” or “trustee”, or any abbreviation,
contraction or derivative thereof, which is not the name of a
company which is authorised to use such name as provided
in subarticle (5) of this article< or”.
Immediately after subarticle (2) of article 77 of the principal Amendment of
article 77 of the
Act, there shall be inserted the following new subarticle (3)>-
principal Act.
“(3) The registration of a company by the Registrar
under this article shall be without prejudice to any other licence
or other authorisation as may be required in respect of the
activities to be carried on by the company under any other
law.”.
In subarticle (4) of article 88 of the principal Act, for the Amendment of
words “the offer in the Gazette” there shall be substituted the words article
principal Act.
“the offer in the Gazette or on a website maintained by the Registrar”.
Article 127 of the principal Act shall be amended as follows>- Amendment of
article 127 of the
principal Act.
(a)
subarticles (2), (4), (5) and (10) thereof shall be deleted<
(b) subarticle (3), (6), (7), (8) and (9) thereof shall be re-
numbered as subarticles (2), (3), (4), (5) and (6) respectively<
(c) in subarticle (2) as renumbered immediately after the
words “any nominee” there shall be added the words “or any trust>
Provided that the company shall not be obliged to obtain
or to record any information on the number of beneficiaries
and it shall be the sole duty of the trustee to inform the
company of the number of beneficiaries if it appears to the
trustee that, paying regard to the number of beneficiaries, it
may result in the aggregate number of persons interested
exceeding fifty. The Registrar may at any time order any
trustee to declare in writing to the company the number of
beneficiaries and in such a case reference shall only be made
to beneficiaries who enjoy a fixed interest in the shares under
the trust.”<
(d) subarticle (3) as renumbered shall be substituted by the
following new subarticle (3)>-
“(3) Where a trustee holds shares in a company for
the benefit of beneficiaries>
(a) the memorandum of association and articles
of association, if any, shall be deemed to be validly
entered into for the purposes of articles 68 and 75 of this
Act if they are signed only by the trustee when all the
shares in the company are subscribed by the trustee<
(b) the memorandum of association, the register
of members, share certificates, returns of allotments and
any annual return of a company may specify the number
of shares held by the trustee on its own account, if any,
and the amount of shares held under trusts or each trust
if more than one, and the provisions of paragraphs (a),
(b) and (c) of subarticle (1) of article 123 of this Act
shall be construed accordingly<
(c) a resolution in writing pursuant to article 210
of this Act shall be deemed to be valid and effective if it
is signed only by the trustee when all the shares in the
company are subscribed by the trustee.”<
(e) subarticle (4) thereof as renumbered shall be amended as
(a) paragraph (a) thereof shall be substituted by the
following new paragraph (a)>-
“(a) Where a beneficial owner of shares in a
company which are held by a trustee, transfers or
otherwise disposes of the beneficial ownership of such
shares inter vivos to a third party, such a transaction shall
be deemed to constitute a transfer of shares for the
purposes of the Duty on Documents and Transfer Act,
and for the purposes of article 5(1) of the Income Tax
Act.”< and
(b) in paragraph (c) thereof, for the words “licensed
nominee” there shall be substituted the words “trustee”<
(f)
in subarticle (5) thereof as renumbered>-
(i) the definition of “beneficial owner” shall be
substituted by the following new definition>-
“beneficial owner” means the person beneficially
entitled to the shares under a trust or a fiduciary agreement<
(ii) the definition of “licensed nominee” shall be
deleted< and
(iii) following the definition of “beneficial owner”
there shall be inserted the following new definition>-
“trustee” shall mean a person who may act as a
trustee in accordance with the Trusts and Trustees Act
and shall include any fiduciary holding shares on behalf
of another person”.
In subarticle (1) of article 324 of the principal Act, for the Amendment of
article 324 of the
words “notice thereof in the Gazette” there shall be substituted the words principal Act.
“notice thereof in the Gazette or on a website maintained bythe Registrar”.
Article 325 of the principal Act shall be amended as follows>- Amendment of
article 325 of the
principal Act.
(a) in subarticle (2) thereof, for the words “notice in the
Gazette” there shall be substituted the words “notice in the Gazette
or on a website maintained by the Registrar”<
(b) in subarticle (3) thereof, for the words “ publish in the
Gazette” there shall be substituted the words “publish in the Gazette
or on a website maintained by the Registrar”< and
(c) in subarticle (4) thereof, for the words “publish a notice
in the Gazette” there shall be substituted the words “publish a notice
in the Gazette or on a website maintained by the Registrar”.
Article 356 of the principal Act shall be amended as follows> Amendment of
article 356 of the
principal Act.
(a) in paragraph (a) thereof, for the words “the Registrar in
the Gazette” there shall be substituted the words “the Registrar in
the Gazette or on a website maintained by the Registrar”< and
(b) in paragraph (c) thereof, for the words “published by
the Registrar in the Gazette” there shall be substituted the words
“published by the Registrar in the Gazette or on a website
maintained by the Registrar”.
Article 401 of the principal Act shall be amended as follows>-
(a) in paragraph (e) of subarticle (1) thereof, for the words
“in the Gazette” wherever they occur, there shall be substituted
the words “in the Gazette or on a website maintained by the
Registrar”< and
(b) in paragraph (g) of subarticle (1) thereof, for the words
“statement published in the Gazette” there shall be substituted the
words “statement published in the Gazette or on a website
maintained by the Registrar”.
In subarticle (6) of article 402 of the principal Act, for the
words “a licensed nominee as defined in article 127, who holds in his
name shares in the company on behalf of and for the interest of another
person beneficially entitled thereto.” there shall be substituted the words
“a trustee, as defined in article 127 of this Act, who holds shares in the
company.”
Article 425 of the principal Act shall be amended as follows>
(a)
subarticle (5) thereof shall be renumbered as subarticle
(7)<
(b) immediately after subarticle (4) thereof there shall be
added two new subarticles (5) and (6) as follows>
“(5) The Minister may by regulations provide for the
formation, constitution and regulation of European Companies
(SE). In this subarticle, a European Company (Societas
Europea or SE) refers to a company set up within the territory
of the European Union on the conditions and in the manner
laid down in Council Regulation 2157#2001 of 8 October 2001
on the Statute for a European Company (SE).
(6) Regulations made under any of the provisions of
this Act may be made in the English language only.”.
In paragraph (b) of subarticle (1) of article 431 of the
principal Act, for the words “from when the provisions of this Act”
there shall be substituted the words “from when the provisions of this
Act or of any other law”.
The Tenth Schedule to the principal Act shall be amended
as follows>-
(a) sub-paragraph (a) of paragraph (1) thereof, shall be
deleted<
(b) sub-paragraph (b) of paragraph (1) thereof, shall be
renumbered as paragraph (1)<
(c) in sub-paragraph (1)(a) of paragraph (3) thereof, for the
words “and at least one of whom shall be a licence holder licensed
as a manager of a collective investment scheme within the meaning
of the Investment Services Act” there shall be substituted the words
“and each of whom shall satisfy the competent authority within
the meaning of the Investment Services Act that he is a fit and
proper person to carry out such activities or functions and shall
further satisfy the requirements of subarticle (7) of article 6 of the
Investment Services Act and any other requirements as may be
established by guidelines issued by the competent authority under
and within the meaning of the Investment Services Act”< and
(d) in sub-paragraph (8) of paragraph (22) thereof, for the
words “published in the Gazette” there shall be substituted the
words “published in the Gazette or on a website maintained by the
Registrar”.
PART XVII
AMENDMENTS TO THE ARBITRATION ACT, CAP. 387
(1) This Part amends and shall be read and construed as Amendments to the
Arbitration Act,
one with the Arbitration Act, hereinafter referred to as “the principal Cap. 387.
Act”.
(2) This Part shall come into force on such date as the
Minister for justice may by notice in the Government Gazette appoint.
Immediately after article 15 of the principal Act there shall Addition
article 15A to the
be inserted the following new article 15A as follows>
principal Act.
“Arbitration
15A. (1) It shall be lawful for a testator to insert an
clause in
arbitration clause in a will. In such event such clause shall be
wills and
trusts.
binding on all persons claiming under such will in relation to
all disputes relating to the interpretation of such will, including
any claim that such will is not valid.
(2) It shall be lawful for a settlor of a trust to insert
an arbitration clause in a deed of trust and such clause shall
be binding on all trustees, protectors and any beneficiaries
under the trust in relation to matters arising under or in relation
to the trust.
(3) In the cases referred to in the preceding
subarticles, the right of a party to seek directions of the Court
of voluntary jurisdiction in terms of the Trusts and Trustees
Act shall not be limited by any such clause and
notwithstanding the provisions of this Act, the said Court shall
not be bound to stay proceedings in terms of subarticle (3) of
article 15 or otherwise, but shall enjoy a discretion to do so
until such time as it determines that the matter is of a
contentious nature, in which case it shall stay the proceedings
and shall refer the parties to arbitration.”.
PART XVIII
AMENDMENTS TO THE INSURANCE BUSINESS ACT,
(1) This Part amends the Insurance Business Act,
hereinafter in this Part referred to as “the principal Act” and shall be
read and construed as one with the principal Act.
(2) The provisions of this Part shall come into force on such
date as the Minister responsible for finance may, by notice in the Gazette,
establish and different dates may be so established for different
provisions or different purposes of this Part.
For paragraph (b) of subarticle (1) of article 10 of the
principal Act, there shall be substituted the following>
“(b) where the authorisation sought or held is one not
restricted to reinsurance, the company submits proof that it
maintains the minimum guarantee fund in accordance with article
16 of the Act.”.
Article 12 of the principal Act, shall be amended as follows>
(a) the present article 12 shall be renumbered as subarticle
(1) thereof< and
(b) immediately after the new renumbered sub-article (1)
there shall be inserted the following new subarticle>
“(2) Without prejudice to the provisions of subarticle
(1) of this article, the general representative shall not be
personally liable for the debts and obligations of the company
referred to in article 11.”.
For paragraph (b) of subarticle (5) of article 14 of the Amendment
article 14 of the
principal Act, there shall be substituted the following>
principal Act.
“(b) the Malta margin of solvency is the margin of solvency
of an authorised company computed by reference to the assets and
liabilities of the business carried on by that company in Malta.”.
In subarticle (1) of article 16 of the principal Act, for the Amendment of
article 16 of the
words “shall maintain in Malta at all times a guarantee fund” there principal Act.
shall be substituted the words “shall maintain at all times a guarantee
Subarticle (1) of article 28 of the principal Act, shall be Amendment
article 28 of the
amended as follows>-
principal Act.
(a) the present paragraph (h) shall be re-numbered as
paragraph (i) thereof< and
(b) immediately after paragraph (g) thereof, there shall be
inserted the following new paragraph>-
“(h) require the company to submit a financial recovery
plan if it considers that the interest of insureds, policyholders,
creditors or other interested persons are likely to be prejudiced
owing to a deterioration in the financial position of the
company<”.
Article 38 of the principal Act shall be amended as follows>- Amendment of
article 38 of the
principal Act.
(a) immediately after subarticle (1) thereof, there shall be
inserted the following new subarticle>
“(2) If the person acquiring a qualifying shareholding
is an insurance undertaking, a credit institution or an
investment firm authorised in a Member State or an EEA State,
or the parent undertaking of such an entity, or a natural or
legal person controlling such an entity, and if, as a result of
that acquisition, the undertaking in which the acquirer
proposes to hold a holding would become a subsidiary or
subject to the control of the person acquiring such
shareholding, the assessment of the acquisition must be subject
to the prior consultation referred to in Article 12a of Council
Directive 73#239#EEC of 24 July 1973 on the coordination of
laws, Regulations and administrative provisions relating to
the taking up and pursuit of the business of direct insurance
other than life assurance and Article 12a of Council Directive
79#267#EEC of 5 March 1979 on the coordination of laws,
regulations and administrative provisions relating to the taking
up and pursuit of the business of direct life assurance, as
amended from time to time.”<
(b) in subarticle (3) thereof, for the words “listed on
any Stock Exchange” there shall be substituted the words
“listed on any recognised investment exchange”< and
(c) immediately after subarticle (11) thereof, there shall
be inserted the following new subarticle>-
“(12) In this article, the expressions “Member
State” and “EEA State” have the following meanings>
(a) “Member State” means a Member State
of the European Communities< and
(b) “EEA State” means a State which is a
contracting party to the agreement on the European
Economic Area signed at Oporto on 2 May, 1992 as
amended by the Protocol signed at Brussels on the
17 May, 1993 and as amended from time to time.”.
For paragraph (a) of subarticle (1) of article 41 of the
principal Act, there shall be substituted the following>
“(a) in the case of a company whose head office is in
Malta, dissolve and consequentially wind up under and in
accordance with regulations made under this article< and”.
Article 58 of the principal Act, shall be amended as follows>–
(a) paragraph (c) of subarticle (1) thereof, shall be
substituted by the following>-
“(c) to suspend or revoke an authorisation under article
26, or under any regulation made under this Act<”< and
(b) subarticle (3) thereof, shall be substituted by the
following>-
“(3) An appeal made under this article shall not
suspend the operation of any decision from which the appeal
is made>
Provided that, a decision to revoke an authorisation shall
not become operative until the expiration of the period within
which an appeal may be made under this article and, if an
appeal is made within such period, the decision shall become
operative on the date of the decision of the Tribunal dismissing
the appeal or the date on which the appeal is abandoned.”.
Article 62 of the principal Act shall be amended as follows>- Amendment of
article 62 to the
(a) in subarticle (1) thereof for the words principal Act.
“Notwithstanding the provisions of the Companies Act,
regulations”, there shall be substituted the words
“Regulations”< and
(b) immediately after subarticle (3) thereof, there shall
be added a new subarticle (4) as follows>-
“(4) The provisions of this article and of any
regulations made thereunder shall prevail over anything
to the contrary contained in the Companies Act, or
regulations made thereunder, with respect to continuance
of companies.”
Article 64 of the principal Act, shall be amended as follows> Amendment of
article 64 to the
(a) paragraph (c) of subarticle (1) thereof, shall be principal Act.
substituted by the following>-
“(c) provide for and regulate the payment by any
person, body or cell created by a cell company, as the case
may be, of any fees, duties and such other charges payable to
the competent authority in respect of any matter provided for,
by or under this Act or any regulations made under this
article<”< and
(b) subarticle (3) thereof, shall be renumbered as subarticle
(4)< and
(c) immediately after sub-article (2) there shall be added
the following new subarticle>-
“(3) The Minister may, after consultation with the
competent authority, make regulations for the transposition
of Directive 2002#87#EC of the European Parliament and of
the Council of 16 December 2002 on the supplementary
supervision of credit institutions, insurance undertakings and
investments firms in a financial conglomorate, as may be
applicable to insurance undertakings.”.
Immediately after paragraph 4.3 of the First Schedule to
the principal Act, there shall be inserted the following new paragraph>-
“4.4 Without prejudice to the other provisions of this
paragraph, the general representative shall not be personally liable
for the debts and obligations of Lloyd’s or any of its members.”.
The Fourth Schedule to the principal Act, shall be amended
as follows>-
(a)
Part I thereof, shall be amended as follows>-
(i) in 3.8 thereof, for the words “signed by a senior
officer of the company”, there shall be substituted the words
“signed by a senior officer of an insurer or an insurance broker,
as the case may be,”< and
(ii) in 3.9 thereof, for the words “shall not act for any
company”, there shall be substituted the words “shall not act
for an insurer or an insurance broker, as the case may be,”< and
(b) in item (ii) of sub-paragraph (b) of paragraph 5.5 of Part
III thereof, for the words “arranging a contract of insurance with
an authorised company” there shall be substituted the words
“arranging a contract of insurance with a company”.
PART XIX
AMENDMENTS TO THE LEGAL PROCEDURES
(RATIFICATION OF CONVENTIONS) ACT, CAP. 443
(1) This Part amends and shall be read and construed as
one with the Legal Procedures (Ratification of Conventions) Act,
hereinafter referred to as “the principal Act”.
(2) This Part shall come into force on such date as the
Minister for justice may, by notice in the Gazette, appoint.
Article 40 of the principal Act shall be substituted by the
following>
“40. For the purposes of this Part of the Act, a trust shall
be deemed to be domiciled in Malta if any of the factors stated
in subarticle (1) of article 8 of the Trusts and Trustees Act
exist, subject to the provisions of subarticle (2) thereof.”.
PART XX
AMENDMENT TO THE MONEY LAUNDERING ACT,
This Part amends and shall be read and construed as one Amendment to the
with the Money Laundering Act, hereinafter referred to as “the principal Money
Act, Cap. 373.
Act”, and it shall come into force on its publication.
Immediately after article 30 of the principal Act there shall Addition of new
article 30A to the
be added the following new article>–
principal Act.
30A. (1) Notwithstanding anything contained in any
other law, the Unit may likewise demand form any person,
authority or entity, as is referred to in article 30, any
under article
information it deems relevant and useful for the purpose of
16. pursuing its functions under article 16.
(2) The provisions of article 30(2) shall mutatis
mutandis apply where any information is demanded by the
Unit under this article.”.”