Part 9: Part 9: Duties and Powers of Trustees
Chapter 1: Chapter 1: Duties of Trustees
Article 38 - Duty to administer a Trust(1) Upon acceptance of a trusteeship, the
Trusteemust in the execution of its duties and in the exercise of its powers and discretions:(A) act with due diligence as would a prudent Personto the best of its ability and skill; and(B) observe the utmost good faith;in accordance with the terms and purposes of the Trustand these Regulations.(2) A Trusteemust administer the Trustsolely in the interest of the Beneficiariesor in furtherance or support of the purposes of the Trust.(3) Subject to such further requirements as may be prescribed by the Rules, a Trusteemust be:(A) a Licensed Firmthat is a DNFBP;(B) an Authorised Firm; or(C) a Personapproved by the QFC Authoritythat is duly licensed or authorised in a jurisdiction outside of the QFCand is subject to adequate requirements in respect of anti-money laundering and counter terrorism financing, by the laws applicable to the Person.
[Guidance Note: A Licensed Firm or an Authorised Firm that wishes to carry out the provision of administration of trusts by way of business, must be licensed or authorised to do so.]
Amended (as from 24th December 2017).
Article 39 - Duties of Trustees(1) Subject to the
Terms of the Trust, a Trusteemust so far as is reasonably practical preserve the value of the Trust Property.(2) Except with the approval of the QFC Courtor as permitted by these Regulationsor expressly provided by the Terms of the Trust, a Trusteemust not:(A) directly or indirectly profit from its trusteeship;(B) cause or permit any other Personto profit directly or indirectly from such trusteeship; or(C) on its own account enter into any transaction with the Trusteesor relating to the Trust Propertywhich may result in such profit.(3) Subject to Article 60, a sale, encumbrance, or other transaction involving the investment or management of the Trust Propertyentered into by the Trusteefor the Trustee'sown personal account or which is otherwise affected by a conflict between the Trustee'sfiduciary and personal interests is voidable by a Beneficiaryaffected by the transaction unless:(A) the transaction was authorised by the Terms of the Trust;(B) the transaction was approved by the QFC Court;(C) the Beneficiarydid not commence judicial proceedings within the time allowed by Article 55; or(D) the Beneficiaryconsented to the Trustee'sconduct or ratified the transaction.(4) A Trusteemust keep accurate accounts and records of its trusteeship. Such accounts and records must be maintained for a period of five (5) years from the date that the Trusteeceases to be trustee.(5) A Trusteemust keep Trust Propertyseparate from its personal property and separately identifiable from any other property of which it is a Trustee.(6) A Trusteemust disclose its capacity as a Trusteein all business relationships entered into with a financial institution or a DNFBP.(7) A Trusteemust maintain current and up-to-date information about the identity of the Settlor, the Trustee, the Beneficiaryor class of Beneficiaries, the Protector, and details of any other Personwho exercises Control over the Trust, as well as service providers.(8) Where any of the parties set out in Article 39(7) is a legal entity, the Trusteemust maintain current up-to-date information about the identity of the ultimate Beneficial Ownerof such legal entity. Amended (as from 24th December 2017).
Article 40 - Duties of co-Trustees to act together(1) Subject to the
Terms of the Trust, where there is more than one Trusteeall the Trusteesmust join in performing the Trust.(2) Subject to Article 40(3), where there is more than one Trusteeno power or discretion given to the Trusteesmust be exercised unless all the Trusteesagree on its exercise.(3) The Terms of the Trustmay empower the Trusteesto act by a majority but a Trusteewho dissents from a decision of the majority of the Trusteesmay require its dissent to be recorded in writing. Amended (as from 24th December 2017).
Article 41 - Impartiality of a Trustee
Subject to the
Terms of the Trust, where there is more than one Beneficiary, or more than one purpose, the Trusteemust act impartially and must not execute the Trustfor the advantage of one at the expense of the other. Amended (as from 24th December 2017).
Article 42 - Cost of administration
In administering a
Trust, the Trusteemay incur only costs that are reasonable in relation to the Trust Property, the purposes of the Trustand the skills of the Trustee. Amended (as from 24th December 2017).
Article 43 - Enforcement and defence claims
Trusteemust take reasonable steps to enforce claims of the Trustand to defend claims against the Trust. Amended (as from 24th December 2017).
Article 44 - Collecting Trust Property
Trusteemust take reasonable steps to compel a former Trusteeor other Personto deliver the Trust Propertyto the Trustee, and, subject to the Terms of the Trust, to redress a breach of trust known to the Trusteeto have been committed by a former Trustee. Amended (as from 24th December 2017).
Article 45 - Duty to inform and report(1) Subject to the
Terms of the Trustand any order of the QFC Court, a Trusteemust, on application in writing by a Beneficiary, disclose to the Beneficiaryall documents which relate to or form part of the accounts of the Trust.(2) A Trusteeis not required to disclose to any Person, any document which:(A) discloses its deliberations as to the manner in which it has exercised a power or discretion or performed a duty conferred upon it;(B) discloses the reason for any particular exercise of such power or discretion or performance of duty or the material upon which such reason was or might have been based; or(C) relates to the exercise or proposed exercise of such power or discretion or the performance or proposed performance of such duty.(3) Notwithstanding the Terms of the Trust:(A) the QFC Courtmay on application made to it declare that in the particular circumstances of the Trust, its terms do not render the Trusteessufficiently or appropriately accountable to one or more Beneficiaries; and(B) the QFC Courtmay pursuant to such declaration extend or restrict the rights of all or any Beneficiariesto information regarding the Trustor may make such other order as it thinks fit. Amended (as from 24th December 2017).
Chapter 2: Chapter 2: General Powers of Trustees
Article 46 - Powers of Trustee(1) Subject to the
Terms of the Trustand duties under these Regulations, a Trusteewill in relation to the Trust Propertyhave:(A) all the same powers as a natural Person;(B) any other powers appropriate to achieve the proper investment, management, and distribution of Trust Property; and(C) any other powers conferred by these Regulations.(2) A Trusteemust exercise its powers only in the interest of the Beneficiariesand in furtherance and support of the purposes of the Trustand in accordance with the Terms of the Trust.(3)(A) Any Trusteemay apply to the QFC Courtfor an opinion, advice or direction on any question regarding the management or administration of the Trust Property, such application to be served upon, or the hearing to be attended by, all Personsinterested in such application, or such of them as the QFC Courtthinks expedient.(B) If the Trusteeacts upon the opinion, advice or direction given by the QFC Court, it is taken to have discharged its duty as a Trusteewith regards to the subject matter of such application. However, these Regulations do not apply if the Trusteeacted fraudulently or made any misrepresentations in obtaining such opinion, advice or direction.(C) The costs of such application will be subject to the discretion of the QFC Court. Amended (as from 24th December 2017).
Article 47 - Specific powers of Trustees
Without limiting the generality of Article 46, and subject to the
Terms of the Trust, a Trusteemay:(1) collect the Trust Propertyand accept or reject additions to the Trust Propertyfrom a Settloror any other Person;(2) subject to the Terms of the Trust, without the consent of any Beneficiary, appropriate the Trust Propertyin or towards satisfaction of the interest of a Beneficiaryin such manner and in accordance with such valuation as it thinks fit;(3) acquire or sell property, for cash or on credit, at public or private sale;(4) exchange, partition, or otherwise change the character of the Trust Property;(5) deposit Trustmoney in an account in a regulated financial services institution;(6) borrow money, with or without security, and mortgage or pledge the Trust Propertyfor a period within or extending beyond the duration of the Trust;(7) where the Terms of the Trustso permit, exercise a discretion in relation to the manner in which and to whom the Trust Propertyis distributed;(8) with respect to an interest in a partnership, limited liability company, business Trust, corporation, or other form of business or enterprise, continue the business or other enterprise and take any action that may be taken by shareholders, members, or Propertyowners, including merging, dissolving, or otherwise changing the form of business organisation or contributing additional capital;(9) with respect to stocks or other securities, exercise the rights of an absolute owner, including the right to:(A) vote, or give proxies to vote, with or without power of substitution, or enter into or continue a voting Trustagreement;(B) hold a security in the name of a nominee or in other form without disclosure of the Trustso that title may pass by delivery;(C) pay calls, assessments, and other sums chargeable or accruing against the securities, and sell or exercise stock subscription or conversion rights; and(D) deposit the securities with a depositary or other regulated financial services institution;(10) with respect to an interest in immovable property, construct, or make ordinary or extraordinary repairs to, alterations to, or improvements in, buildings or other structures, demolish improvements, raze existing or erect new party walls or buildings, subdivide or develop land, dedicate land to public use or grant public or private easements, and make or vacate plots and adjust boundaries;(11) enter into a lease for any purpose as lessor or lessee, including a lease or other arrangement for exploration and removal of natural resources, with or without the option to purchase or renew, for a period within or extending beyond the duration of the Trust;(12) grant an option involving a sale, lease, or other disposition of the Trust Propertyor acquire an option for the acquisition of property, including an option exercisable beyond the duration of the Trust, and exercise an option so acquired;(13) insure the property of the Trustagainst damage or loss and insure the Trustee, the Trustee'sagents, and Beneficiariesagainst liability arising from the administration of the Trustand the insurance proceeds must belong to the Trust;(14) abandon or decline to administer property of no value or of insufficient value to justify its collection or continued administration;(15) pay or contest any claim, settle a claim by or against the Trust, and release, in whole or in part, a claim belonging to the Trust;(16) pay remuneration of the Trustee, Protector or Enforcerand of employees and agents of the Trust, and other expenses incurred in the administration of the Trust;(17) indemnify outgoing Trustees;(18) select a mode of payment under any employee benefit or retirement plan, annuity, or life insurance payable to the Trustee, exercise rights thereunder, including exercise of the right to indemnification for expenses and against liabilities, and take appropriate action to collect the proceeds;(19) make loans out of the Trust Property, including loans to a Beneficiaryon terms and conditions the Trusteeconsiders to be fair and reasonable under the circumstances, and the Trusteehas a lien on future distributions for repayment of those loans;(20) pledge the Trust Propertyto guarantee loans made by others to the Beneficiary;(21) appoint a Trusteeto act in another jurisdiction with respect to the Trust Propertylocated in the other jurisdiction, confer upon the appointed Trusteeall of the powers and duties of the appointing Trustee, require that the appointed Trusteefurnish security, and remove any Trusteeso appointed;(22) pay an amount distributable to a Beneficiarywho is under a legal disability or who the Trusteereasonably believes is incapacitated, by paying it directly to the Beneficiaryor applying it for the Beneficiary'sbenefit, or by:(A) paying it to the Beneficiary'sguardian and the receipt by such guardian must constitute a full discharge of the Trustee'sobligation;(B) if the Trusteedoes not know of a guardian, or custodial Trustee, paying it to an adult relative or other Person having legal or physical care or custody of the Beneficiary, to be expended on the Beneficiary's behalf and the receipt by such Person must constitute a full discharge of the Trustee; or(C) managing it as a separate fund on the Beneficiary's behalf, subject to the Beneficiary's continuing right to withdraw the distribution;(23) on distribution of Trust Propertyor the division or termination of a Trust, make distributions in divided or undivided interests, allocate particular assets in proportionate or disproportionate shares, value the Trust Propertyfor those purposes, and adjust for resulting differences in valuation;(24) resolve a dispute concerning the interpretation of the Trustor its administration by mediation, arbitration, or other procedure for alternative dispute resolution;(25) prosecute or defend an action, claim, or judicial proceeding in any jurisdiction to protect the Trust Propertyand the Trusteein the performance of the Trustee's duties;(26) sign and deliver contracts and other instruments that are useful to achieve or facilitate the exercise of the Trustee's powers;(27) on termination of the Trust, exercise the powers appropriate to wind up the administration of the Trustand distribute the Trust Propertyto the Personsentitled to it; or(28) consult accountants, lawyers, bankers, investment bankers, and other specialists and professional advisers in relation to the affairs of the Trust, at the expense of the Trust. Amended (as from 24th December 2017).
Article 48 - Power of accumulation and advancement(1) Where the
Terms of the Trustso authorise, a Trusteemay accumulate for a period, part or all of the Incomeof the Trust.(2) Subject to Article 48(3), Incomeof the Trustwhich is not accumulated under Article 48(1) must be distributed.(3) Subject to the Terms of the Trustand subject to any prior interests or charges affecting the Trust Property, where a Beneficiaryis a Minorand whether or not the Beneficiary'sinterest:(A) is a vested interest; or(B) is an interest which will become vested:(i) on attaining the age of majority;(ii) at any later age; or(iii) upon the occurrence of any event;the Trusteemay:(C) accumulate the Incomeattributable to the interest of such Beneficiarypending the attainment of the age of majority or such later age or the occurrence of such event;(D) apply such Incomeor part of it to or for the maintenance, education or other benefit of such Beneficiary; or(E) advance or appropriate to for the benefit of any such Beneficiarysuch interest or part of such interest.(4) The receipt by a parent or the lawful guardian of a Beneficiarywho is a Minormust be a sufficient discharge of the Trustee'sobligations for a payment made under Article 48(3). Amended (as from 24th December 2017).
Article 49 - Delegation by a Trustee(1) A
Trusteemust not delegate its powers unless permitted to do so by these Regulationsor by the Terms of the Trust.(2) Subject to Article 49(1), a Trusteemay delegate duties and powers that a prudent Trusteeof comparable skills could properly delegate under the circumstances. The Trusteemust exercise reasonable care, skill, and caution in:(A) selecting a competent and qualified agent;(B) establishing the scope and terms of the delegation, consistent with the purposes and Terms of the Trust; and(C) periodically reviewing the agent's actions in order to monitor the agent's performance and compliance with the terms of the delegation.(3) In performing a delegated function, an agent owes a duty to the Trustto exercise reasonable care to comply with the terms of the delegation.(4) A Trusteewho complies with Article 49(1) and otherwise acts in good faith is not liable to the Beneficiaries or to the Trustfor an action, omission or negligence of the agent to whom the function was delegated.(5) For the purposes of this Article, an “agent” may include investment managers, accountants, lawyers, bankers, brokers, custodians, investment advisers, nominees, property agents and other professional advisers or Personsto act in relation to any of the affairs of the Trustor to hold any of the Trust Property.(6) A Trusteemay authorise a Personreferred to in Article 49(5) to retain any commission or other payment usually payable in relation to any transaction. Amended (as from 24th December 2017).
Article 50 - Combination and division of Trusts(1) Subject to the
Terms of the Trust, a Trusteemay combine two or more Trustsinto a single Trustor divide a Trustinto two or more separate Trusts, if the result does not impair rights of any Beneficiaries or adversely affect achievement of the purposes of the Trusts.(2) Subject to the tTrms of the Trust, where a Trusteedivides a Trustinto two or more separate Trusts, it must have the power to appoint Trusteesfor such Trusts. Amended (as from 24th December 2017).