Mauritius has become a jurisdiction of choice for trust and estate planning because of an array of fiscal and non fiscal factors, amongst which, are its well established financial services and banking infrastructure, stable economy and favourable tax regime. Indeed, a Trust with non resident settlors and beneficiaries are exempt from tax if election is made to be deemed non-resident. On the other hand, a resident trust is taxable on its chargeable income at the rate of 15% of their net income after deductions of allowable expenses. However, foreign tax credits are available up to 80% of the Mauritian tax liability so that a resident trust will pay a net effective tax of 3% only. Tax resident Trusts will enjoy the benefits of Mauritius' network of tax treaties.
This article aims to provide an overview of some of the duties of Trustees under the laws of Mauritius.
Mauritius Trusts are governed by the Trusts Act 2001 ('the Act').
The Trust property is vested in Trustees chosen by the settlor and appointed to hold and manage the assets for the benefit of the beneficiaries. A Trustee can be any person of full age who has the legal capacity to enter into contract agreements or any body corporate as permitted under its statute. However, at least one Trustee of a Mauritius Trust must be a qualified Trustee. A qualified Trustee is one licensed by the Financial Services Commission (the "FSC") to carry out Trust business. Subject to the foregoing, a settlor may be one of the Trustees and the number of Trustees may not exceed four.
Trustees are prohibited from having a beneficial interest under a Trust to which he is Trustee if that Trustee is either the: (i) sole Trustee; or (ii) sole beneficiary of that Trust. Settlors typically avoid appointing Trustees whose interests may be different than that of any beneficiary.
Statutory Duties of Trustees
The Trustee of a Mauritius Trust is under an obligation to exercise independent judgment in deciding what is in the best interest of the beneficiaries when administering the Trust. The Trustee must act in accordance with the terms of the Trust deed and under the Act is obliged to act with the utmost good faith and act with due diligence, with care and prudence and to the best of his ability and skill.
Duty relating to Trust property
The Trustees of a Mauritius Trust must preserve and enhance, so far as is reasonable, the value of the Trust property. They must take any and all such steps as may be required, with due regard to the nature and amount or value of the property, for the possession of all outstanding Trust property and for the preservation of the Trust property and the assertion or protection of the title to it. Trustees must keep updated and accurate accounts and records of their Trusteeship, and must keep Trust property separate from their own property and separately identifiable from any other property of which they are the Trustees.
Duty for Trustees to act together
Subject to the terms of the Trust, where there is more than one Trustee, all the Trustees shall join in performing the Trust and no functions given to the Trustees shall be exercised unless all the Trustees agree on its exercise.
Duty to act impartially
Where a Trust either has more than one beneficiary or more than one purpose, the Trustees must remain impartial and not execute that Trust for the advantage of one at the expense of the other, again subject to the terms of the Trust deed.
Why choose a Mauritius Trust?
- It is a very flexible vehicle and can be formed as a life interest Trust, a discretionary Trust, a purpose Trust, a charitable Trust, employee benefit Trust, a protective Trust or an asset protection Trust.
- Tax resident Truss can benefit from the network of Double Tax Treaties.
- Non-resident beneficiaries are exempt from income tax on income from the Trust.
- Trusts established in other jurisdictions can be migrated to Mauritius for tax purposes simply by ensuring that the majority of trustees are resident in Mauritius and that the trust is administered in Mauritius.
- Charitable Trusts are exempt from tax.
- It can have a Protector and a Purpose Trust must have an Enforcer.
- It can have a Managing Trustee in Mauritius and a Custodian Trustee in another jurisdiction.
- The forced heirship rules of other states will not be enforced by Courts in Mauritius.
Trustees are not required to disclose any confidential information to any person not legally entitled to it. Nor can they be required to produce or divulge that confidential information to any Court, tribunal, committee of enquiry or other authority in Mauritius or elsewhere except where ordered by the Court or a Judge in Chambers in accordance with the Act.
There is no mandatory requirement to register the Trust with the regulatory authorities in Mauritius, however, a Trustee may register the Trust to receive a "date certaine" of when the Trust was created, for which only the Trust deed is required and is registered with the Registrar General.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.