The
Bahamas
VARIATION
OF TRUSTS ACT 1961
44
of 1961; CH 166
An
Act to Extend the Jurisdiction
of the Supreme Court
to Vary
Trusts
in the Interests of
Beneficiaries and Sanction
Dealings with Trust
Property 31 July 1961
Short
title
1.
This Act may be cited
as the Variation of
Trusts Act.
Jurisdiction
of the Supreme Court
to Vary trusts
2.
(1) Where property,
whether real or personal,
is held on trusts arising,
whether before or after
the commencement of
this Act, under any
will, settlement or
other disposition,
the Supreme Court may
if it thinks fit by
order approve on behalf
of
(a)
any person having directly,
or indirectly, an interest,
whether vested or contingent,
under the trusts who
by reason of infancy
or other incapacity
is incapable of assenting;
or
(b)
any person (whether
ascertained or not)
who may become entitled,
directly or indirectly,
to an interest under
the trusts (whether
discretionary or otherwise)
as being at a future
date or on the happening
of a future event a
person of any specified
description or a member
of any specified class
of persons, so however
that this paragraph
shall not include any
person who would be
of that description,
or a member of that
class, as the case
may be, if the said
date had fallen or
the said event had
happened at the date
of the application
to the Supreme Court;
or (c) any person unborn,
any arrangement (by
whomsoever proposed,
and whether or not
there is any other
person beneficially
interested who is capable
of assenting thereto)
varying or revoking
all or any of the trusts,
or enlarging the powers
of the trustees of
managing or administering
any of the property
subject to the trusts:
Provided
that the Supreme Court
shall not approve an
arrangement on behalf
of any person unless
the carrying out thereof
would be for the benefit
of that person.
(2)
Nothing in the foregoing
provisions of this
section shall apply
to trusts affecting
property settled by
Act of Parliament.
(3)
Nothing in the foregoing
provisions of this
section shall be taken
to limit the powers
conferred by section
27 of the Trustee Act
(1893) Ch 164 .
(4)
No order of the Supreme
Court made heretofor
in the exercise or
purported exercise
of such jurisdiction
as is conferred by
this section shall
be invalidated, set
aside, varied or otherwise
held to be ineffective
only by reason of the
want of such jurisdiction.
TRUSTS
(CHOICE OF GOVERNING
LAW) ACT 1989
No
33 of 1989
An
Act to provide for
a Choice of Governing
Law in the creation
of trust and for matters
connected therewith.
Date
of Assent: 29 December
1989
Enacted
by the Parliament of
The Bahamas.
Short
title and commencement
1.
This Act may be cited
as the Trusts (Choice
of Governing Law) Act,
1989 and shall come
into operation on such
date as the minister
may appoint by notice
published in the Gazette.
Interpretation
2.
In this Act --
''dispose''
and ''disposition'',
in relation to property,
means every form of
conveyance, transfer,
assignment, lease,
mortgage, pledge or
other transaction by
which any legal or
equitable interest
in property is created,
transferred or extinguished;
''formalities''
in relation to a disposition
of property means any
documentary or other
actions required generally
by the laws of a relevant
jurisdiction for all
dispositions of like
form concerning property
of like nature, without
regard to
(a)
the fact that the particular
disposition is made
in trust;
(b)
the terms of the trust;
(c)
the circumstances of
the parties to the
disposition; or
(d)
any other particular
circumstances; but
includes any special
formalities required
by reason that the
party effecting the
disposition is not
of full age, is subject
to a mental or bodily
infirmity or is a corporation;
''governing law'' means
the law governing a
trust executed in The
Bahamas or elsewhere;
''heirship right''
means any right; claim
or interest in, against
or to property of a
person arising or accruing
in consequence of that
person's death, other
that any such right,
claim or interest created
by will or other voluntary
disposition by such
person or resulting
from an express limitation
in the disposition
of the property of
such person; ''personal
relationship'' includes
every form of relationship
by blood or marriage,
including former marriage
and in particular a
personal relationship
between two persons
which exists if --
(a)
one is the child of
the other, natural
or adopted, whether
or not the adoption
is recognised by law,
legitimate or illegitimate;
(b)
one is married to the
other, whether or not
the marriage is recognised
by law;
(c)
one cohabits with the
other or so conducts
himself or herself
in relation to the
other as to give rise
in any jurisdiction
to any rights, obligations
or responsibilities
analogous to those
of parents and child
or husband and wife;
or
(d)
personal relationships
exist between each
of them and a third
person, but no change
in circumstances cause
personal relationship
once established to
terminate.
''Property''
means moveable and
immovable property;
''settlor''
in relation to a trust,
means each person who
directly or indirectly
,on behalf of himself
or on behalf of any
other, as owner or
as the holder of a
power in that behalf,
disposes of property
to be held in such
trust or declares or
otherwise creates such
trust.
Application
3.
(1) This Act applies
to every trust and
disposition of property
in trust.
(2)
This Act shall not
render any person liable
for anything done prior
to its commencement.
Declaration
governing law
4.
(1) For the avoidance
of doubt it is hereby
stated that in the
creation of trust,
a settlor, whether
or not he is resident
in The Bahamas, may
expressly declare in
the trust instrument
that the laws of The
Bahamas shall be the
governing law of the
trust.
(2)
A term of a trust expressly
declaring that the
laws of The Bahamas
shall govern the trust
is valid, effective
and conclusive regardless
of any other circumstance.
(3)
A term of a trust that
the laws of The Bahamas
shall govern a particular
aspect of a trust or
that The Bahamas shall
be the forum for the
administration of the
trust or any other
like provision is conclusive
evidence, subject to
any contrary term of
the trust, that the
settlor intended the
laws of The Bahamas
to be the governing
law of the trust and
is valid and effective
accordingly.
Provision
for change of governing
law
5.
(1) Where a term of
a trust so provides,
the governing law may
be changed to or from
the laws of The Bahamas
if
(a)
in the case of a change
to the laws of The
Bahamas, such change
is recognised by the
governing law previously
in effect; and
(b)
in the case of a change
from the laws of The
Bahamas, the new governing
law would recognise
the validity of the
trust and the respective
interests of the beneficiaries.
(2)
A change in the governing
law shall not affect
the legality or validity
of, or render any person
liable for anything
done before the change.
Determination of governing
law
6.
In determining the
governing law of a
trust consideration
shall first be given
to the terms of the
trust in issue and
to any evidence therein
as to the intention
of the parties; and
the other circumstances
of the trust shall
be considered only
if the terms of the
trust fail to provide
such evidence as to
the intention of the
parties .
Matters
determined by governing
law
7.
(1) Subject to subsection
(2), all questions
arising in regard to
a trust which is for
the time being governed
by the laws of The
Bahamas or in regard
to any disposition
of property upon the
trust thereof including,
without prejudice to
the generality of the
foregoing, questions
as to
(a)
the capacity of the
settlor
(b)
any aspect of the validity
of the trustor disposition
or the interpretation
or effect thereof;
(c)
the administration
of the trust, whether
the administration
be conducted in The
Bahamas or elsewhere,
including questions
as to powers, obligations,
liabilities and rights
of trustees and their
appointment and removal;
or
(d)
the existence and extent
of powers, conferred
or retained; including
powers of variation
or revocation of the
trust and powers of
appointment, and validity
of any exercise thereof,
shall be determined
in accordance with
the laws of The Bahamas,
without reference to
the laws of any other
jurisdictions with
which the trust or
disposition may be
connected.
(2)
This section --
(a)
shall not validate
--
(i)
any disposition of
property which is neither
owned by the settlor
nor the subject of
a power in that behalf
vested in the settlor;
(ii)
any trust or disposition
of immovable property
situate in a jurisdiction
other than The Bahamas
in which such trust
or disposition is invalid
according to the laws
of such jurisdiction;
(iii)
any testamentary trust
or disposition which
is invalid according
to the laws of the
testator's domicile;
(b)
shall not affect the
recognition of foreign
laws in determining
whether the settlor
is the owner of the
settled property or
is the holder of a
power to dispose of
such property;
(c)
shall take effect subject
to any express term
of a trust or disposition
to the contrary;
(d)
as regards the capacity
of a corporation, shall
not affect the recognition
of the laws of its
place of incorporation;
and
(e)
shall not affect the
recognition of foreign
laws prescribing generally,
without reference to
the existence or terms
of the trust, the formalities
for the disposition
of property.
Immitations
in foreign law
8.
Without limiting the
generality of section
7, it is hereby expressly
declared that no trust
governed by the laws
of The Bahamas and
no disposition of property
to be held on trust
that is valid under
the laws of The Bahamas
is void, voidable,
liable to be set aside
or defective in any
manner by reference
to a foreign law; nor
is the capacity of
any settlor to be questioned
by reason that
(a)
the laws of any foreign
jurisdiction prohibit
or do not recognise
the concept of a trust;
or
(b)
the trust or disposition
avoids or defeats rights,
claims or interest
conferred by foreign
law upon any person
by reason of a personal
relationship to the
settlor or by way of
heirship rights or
contravenes any rule
of foreign law or any
foreign, judicial or
administrative order
or action intended
to recognise, protect,
enforce or give affect
to any such rights,
claims or interest.
FRAUDULENT
DISPOSITIONS ACT 1991
No
1 of 1991
An
Act to Amend the Law
Relating to Dispositions
made with an intent
to Defraud Date of
Assent: 5 March 1991
Enacted
by the Parliament of
The Bahamas.
Short
title and commencement
1.
(1) This Act may be
cited as the Fraudulent
Dispositions Act, 1991.
(2)
This Act shall come
into operation on such
date as the Minister
of Finance may by notice
in the Gazette appoint
Interpretation
2.
In this Act --
''appointed
date'' means the date
on which this Act comes
into operation;
''creditor''
means a person to whom
an obligation is owed;
''disposition''
means any disposition
or series thereof,
however effected, and
(without prejudice
to the generality thereof)
includes any transaction,
gift, grant or transfer
of property of any
nature whatsoever
''intent
to defraud'' means
an intention of a transferor
wilfully to defeat
an obligation owed
to a creditor;
''obligation''
means an obligation
or liability (which
shall include a contingent
liability) which existed
on or prior to the
date of a relevant
disposition and of
which the transferor
had actual notice;
''relevant
disposition'' means
a disposition to which
section 4(1) applies;
''transferor''
means the person who
as owner or as the
holder of a power in
that behalf directly
or indirectly makes
a relevant disposition
or causes it to be
made;
''transferee''
means the person to
whom a relevant disposition
is made and shall include
any successor in title;
''undervalue'',
in relation to a disposition
of property, means
(a)
the provision of no
consideration for the
disposition; or
(b)
a consideration for
the disposition the
value of which in money
or money's worth is
significantly less
than the value of the
property the subject
of the disposition.
Application
3.
(1) With effect from
the appointed date
this Act shall apply
in place of the law
in effect prior to
the appointed date
to every disposition
of property made after
the appointed date
by any person and whether
or not the property,
the subject of the
disposition, is situate
in The Bahamas or elsewhere;
save that in any action
or proceedings commenced
prior to the appointed
date or within six
months of the appointed
date but in respect
of a disposition made
prior to the appointed
date this Act shall
have no application
and the law to be applied
shall be that in effect
prior to the appointed
date.
(2)
In this section, ''the
law in effect'' means
the law relating to
fraudulent dispositions
of property.
Avoidance
fraudulent disposition
4.
(1) Subject to the
provisions of this
Act, every disposition
of property made with
an intent to defraud
and at an undervalue
shall be voidable at
the instance of a creditor
thereby prejudiced.
(2)
The burden of establishing
an intent to defraud
for the purposes of
this Act shall b upon
the creditor seeking
to set aside the disposition.
(3)
No action or proceedings
shall be commenced
pursuant to this Act
unless commenced within
two years of the date
of the relevant disposition.
Saving
of certain rights
5.
(1) In the event that
any disposition shall
be set aside pursuant
to this Act, then --
(a)
unless the court is
satisfied that the
transferee has acted
in bad faith
(i)
the transferee shall
have a first and paramount
charge over the property,
the subject of the
disposition, of an
amount equal to the
entire costs properly
incurred by the transferee
in the defence of the
action or proceedings
to set aside (and not
merely such costs as
might otherwise be
allowed by the court),
and
(ii)
the relevant disposition
shall be set aside
subject to the proper
fees, costs, pre-existing
rights, claims and
interests of the transferee,
(and of any predecessor
transferee which has
not acted in bad faith);
and
(b)
unless the court is
satisfied that a beneficiary
of a trust has acted
in bad faith the disposition
shall only be set aside
subject to the right
of such beneficiary
to retain any distribution
made consequent upon
the prior exercise
of a trust, power or
discretion vested in
the trustee of such
trust or any other
person, and otherwise
properly exercised.
(2)
The burden of proving
that a transferee or
beneficiary has acted
in bad faith shall
be upon the person
making the allegation.
Extent of avoidance
of relevant dispositions
6.
A disposition shall
be set aside pursuant
to this Act only to
the extent necessary
to satisfy the obligation
to a creditor at whose
instance the disposition
had been set aside
together with such
costs as the court
may allow. Act not
to validate certain
dispositions
7.
Nothing in this Act
--
(a)
shall validate any
disposition of property
which is neither owned
by the transferor nor
the subject of a power
in that behalf vested
in the transferor;
(b)
shall affect the recognition
of a foreign law in
determining whether
the transferor is the
owner of such property
or the holder of such
power. Relationship
with Trusts (Choice
of Governing Law) Act
8.
Nothing in this Act
shall create or enable
any right, claim or
interest on behalf
of a creditor or person
which right, claim
or interest would be
avoided or defeated
by the Trusts (Choice
of Governing Law) Act.
