TRUSTS AND TRUSTEES ACT (NOTARIAL TRUST DEEDS REGISTRATION, CONSERVATION AND ACCESS) REGULATIONS (conservationandaccess)

SUBSIDIARY LEGISLATION 331.06

TRUSTS AND TRUSTEES ACT (NOTARIAL TRUST

DEEDS REGISTRATION, CONSERVATION AND

ACCESS) REGULATIONS

6th January, 2015

LEGAL NOTICE 15 of 2015.

(1) The title of these regulations is the Trusts and Trustees

Act (Notarial Trust Deeds Registration, Conservation and Access)

Regulations.

(2) The purpose of these regulations is to regulate the

registration, conservation and access of notarial trust deeds,

particularly with reference to article 43A(6) of the Trusts and

Trustees Act and article 84A(2) of the Notarial Profession and

Notarial Archives Act.

(1) In these regulations, unless the context otherwise

requires -

"the Act" means the Trusts and Trustees Act;

"the Authority" means the Malta Financial Services Authority

established in terms of the Malta Financial Services Authority Act;

"depositary notary" refers to the person in terms article 43A of

the Act;

"notarial archives" refers to the Archives of Malta or Archives of

Gozo, as applicable, in terms of the Notarial Profession and

Notarial Archives Act;

"publishing notary" means the notary public who publishes a will

containing a testamentary trust or receives a notarial trust deed

inter vivos, irrespective of any other functions he may carry out in

terms of article 43A of the Act, whether as a trustee or as a

depositary notary;

"review officer" refers to the person as defined in article 94A of

the Notarial Profession and Notarial Archives Act.

(2) Words and expressions used in these regulations which are

also used in the Act but which are not defined herein shall have the

same meaning as in the Act.

(1) All notarial trust deeds published prior to the coming

into force of these regulations, which have not been previously

bound elsewhere, shall be bound in a separate volume, one for each

notarial trust deed.

(2) If a notarial trust deed published prior to the coming into

force of these regulations has been bound in any other volume the

following rules shall apply

(a) if the trust deed is in the volume of public deeds or in

the volume of public wills and acts of delivery of

secret wills, it shall remain in the same volume in the

chronological order in which it was bound; and

(b) the publishing notary shall manually add to the index

that the deed is a trust deed and the provisions

applicable to trust deeds shall be applied in relation to

this deed.

(1) All notarial trust deeds published on or after the

coming into force of these regulations, shall be bound by the

publishing notary in a separate volume, one for each notarial trust

deed.

(2) The publishing notary shall also create a register of the said

trust deeds and this register shall be held by the publishing notary.

(3) All notarial trust deeds shall be conserved in the notarial

archives and the access to such deeds shall be regulated in terms of

these regulations.

(1) The depositary notary shall keep all documents relative

to a trust as provided in article 43A of the Act.

(2) These documents shall be kept separate from all other

documents held by such depositary notary in the execution of his

functions and the depositary notary shall be responsible for

establishing an adequate system for the preservation of all

documentation relating to the trust while he is so engaged.

(3) The records of each trust shall be kept separate from those

relating to other trusts and shall be held for safekeeping under lock

and key.

(4)

The records of a trust shall be kept in such a manner that

(a) they are immediately available for inspection in terms

of article 43A(7) of the Act;

(b) in the event that a new depositary notary is appointed,

they shall be delivered to such notary immediately;

and

(c) the documents forming part of such records shall be

numbered consecutively as soon as they are received

by the depositary notary.

(5) In the event that a depositary notary delivers documents

relative to a trust to a new depositary notary and retains copies of

such documents in accordance with article 43A(9) of the Act, these

regulations shall mutatis mutandis apply to such copies.

In the case of a trust set up by a testamentary disposition,

where

(a) the terms of a trust form an integral part of a will; or

(b) are annexed to the will,

they shall be accessible to any person after the death of the testator

in accordance with the provisions of article 68 of the Notarial

Profession and the Notarial Archives Act.

(1) Without prejudice to sub-regulation (2), a depositary

notary shall, upon commencement of his office as depositary notary

of any particular trust and upon termination thereof, submit to the

Notary to Government, a return listing all trusts in relation to which

he acts in such capacity.

(2) The return shall be submitted in the form and at the

intervals which may be specified in any guidelines issued in terms

of these regulations

Provided that the Notary to Government may request the

submission of the return referred to in this regulation at such

intervals as may be deemed fit.

(3) The return shall only contain the designation of the trust

which shall include details of the trustee

Provided that the depositary notary shall not be obliged to

disclose the nature of the documents deposited with such notary in

the execution of his duty as depositary notary.

(4) The return referred to in sub-regulation (1) shall not include

information relating to any trusts for which the depositary notary is

no longer engaged and for which a substitute depositary notary has

been engaged, even if the depositary notary has retained copies in

accordance with article 43A(9) of the Act

Provided that the depositary notary shall inform the Notary

to Government of the termination of his engagement as depositary

notary of any such trust.

(5) The Notary to Government shall keep the returns submitted

by depositary notaries in relation to this regulation under lock and

key and in such a manner as to safeguard at all times the

confidentiality of the contents thereof.

(1) When a trust is set up by testamentary disposition, both

in case of a public will or a secret will, and the same has been

deposited for preservation in the notarial archives, the rules of

accessibility of wills in terms of article 68A of the Notarial

Profession and Notarial Archives Act shall apply.

(2) When any notarial inter vivos trust deed has been deposited

for preservation in the notarial archives, as described in regulations

3 and 4, such trust deed shall not be accessible to any person, and

copies thereof shall not be granted to any person except

(a) with the written authority of the original trustee or

substitute trustee, as confirmed to be so by the

depositary notary in the manner prescribed in the

Schedule, and provided that the trustee shall seek the

advice of the depositary notary prior to granting access

to such person. Form A annexed to these regulations

shall be filled in by the original trustee or substitute

trustee and confirmed by the depositary notary and

submitted to the notarial archives prior to copies of the

trust deed being issued therefrom; or

(b) under the authority of any Court.

TRUSTS AND TRUSTEES ACT (NOTARIAL TRUST DEEDS

REGISTRATION, CONSERVATION AND ACCESS)

(1) All trust deeds shall be submitted for inspection to the

Review Officers of the Court of Revision of Notarial Acts in the

same manner as other notarial deeds.

(2) When a testamentary trust forms part of a will and the same

is subject to review and inspection by the Court of Revision of

Notarial Acts, this shall be reviewed and inspected in the same

manner in which wills are inspected and reviewed.

(3) When reviewing and inspecting a notarial inter vivos trust

deed, the Court of Revision of Notarial Acts shall, in particular,

examine whether such deed contains an indication of

(a) the date in accordance with article 28(1)(a) of the

Notarial Profession and Notarial Archives Act;

(b) the designation of the settlor, if any, in accordance

with article 28(1)(c) and article 28(1)(d) of the

Notarial Profession and Notarial Archives Act;

(c) the designation of the trustee in accordance with

article 28(1)(c) and article 28(1)(d) of the Notarial

Profession and Notarial Archives Act;

(d) the assets which have been settled under trust in

accordance with article 28(1)(f) of the Notarial

55. Profession and Notarial Archives Act; and

(e) the designation of a beneficiary in accordance with

article 28(1)(c) and article 28(1)(d) of the Notarial

Profession and Notarial Archives Act or at least a class

of beneficiaries which is ascertainable in accordance

with article 9(4) of the Act, or the purpose of the trust

in the case of a trust set up for the fulfilment of a

charitable purpose.