International Trusts Act

April 1989

Definition

1. In this Act, "Convention" means the Convention on the Law Applicable to Trusts and their Recognition set out in the Schedule.

Application of Convention

2 (1) The Convention applies in (enacting jurisdiction).

    (2) This Act does not apply to conflicts solely between the laws of the provinces and territories of Canada.

NOTE: Jurisdictions that wish to make reservations to the Convention should redraft section 2 to make it subject to those sections of the Act that provide for the reservation.

RESERVATIONS

The following are reservations that jurisdictions may wish to make. If a reservation is made the provision should be incorporated in the draft:

1. Jurisdictions wishing to make a reservation under Article 16 of the Convention should include the following:

Paragraph 2 of Article 16 of the Convention does not apply in [enacting jurisdiction].

2. Jurisdictions wishing to make a reservation under Article 21 of the convention should include the following:

Chapter III of the Convention applies only to trusts the validity of which is governed by the law of a Contracting State under the Convention.

3. Jurisdictions wishing to make a reservation under Article 22 should substitute one of the following:

(Complete reservation)
This Act does not apply to trusts created or declared before the coming into force of this Act.

NOTE: "or declared" should be deleted if the Convention is not extended pursuant to section 3.

(Qualified reservation)
Article 22 is not to be construed as affecting the law to be applied in relation to anything done or omitted under a trust before the coming into force of this Act.

Extension of Convention

3. (1) The Convention is extended to trusts declared by judicial decisions including constructive trusts and resulting trusts.

    (2) Nothing in this Act is to be construed as requiring that recognition or effect be given to a trust declared by judicial decision in another state or a severable aspect of such a trust, if [the appropriate court in enacting jurisdiction] is satisfied that there is a substantial reason for refusing to give recognition or effect to the trust or aspect.

NOTE: Jurisdiction not wishing to extend the Convention should delete section 3.

Crown bound

4. This Act binds the Crown.

Commencement

5. (Proclamation section).

NOTE: This Act should be brought into force only when Canada has acceded to the Convention on behalf of the enacting jurisdiction.

SCHEDULE

CONVENTION ON THE LAW APPLICABLE TO TRUSTS AND ON THEIR RECOGNITION

    The States signatory to the present Convention,

    Considering that the trust, as developed in courts of equity in common law jurisdictions and adopted with some modifications in other jurisdictions, is a unique legal institution,

    Desiring to establish common provisions on the law applicable to trusts and to deal with the most important issues concerning the recognition of trusts,

    Have resolved to conclude a Convention to this effect, and have agreed on the following provision -

CHAPTER ONE - SCOPE

Article 1

    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 relationships 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 beneficially 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 on 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.

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 trustee shall be governed by the law chosen by the settlor. The choice must be express or be implied in th 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 on the duration of the trust, and on 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 recognized 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 to 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 trustees estate on his insolvency or bankruptcy;

(c) that the trust assets shall not form part of the matrimonial property of the trustee or his spouse nor part of the trustees estate on 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 13

    No State shall be bound to recognize a trust the significant elements of which, except for the choice of the applicable law, the place of administration and the habitual residence of the trustee, are more closely connected with States which do not have the institution of the trust or the category of trust involved.

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.

    If another State has a sufficiently close connection with a case then, in exceptional circumstances, effect may also be given to rules of that state which have the same character as mentioned in the preceding paragraph. Any Contracting State may, by way of reservation, declare that it will not apply the second paragraph of this article.

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 19

    Nothing in the Convention shall prejudice the powers of States in fiscal matters.

Article 20

    Any Contracting State may, at anytime, declare that the provisions of the Convention will be extended to trusts declared by judicial decisions. This declaration shall be notified to the Ministry of Foreign Affairs of the Kingdom of the Netherlands and will come into effect on the day when this notification is received.

    Article 31 is applicable to the withdrawal of this declaration in the same way as it applies to a denunciation of the Convention.

Article 21

    Any Contracting State may reserve the right to apply the provisions of Chapter III only to trusts the validity of which is governed by the law of a Contracting State.

Article 22

    The Convention applies to trusts regardless of the date on which they were created.

    However, a Contracting State may reserve the right not to apply the Convention to trusts created before the date on which, in relation to that State, the Convention enters into force.

Article 23

    For the purposes of identifying the law applicable under the Convention, where a State comprises several territorial units each of which has its own rules of law in respect of trusts, any reference to the law of that State to be construed as referring to the law in force in the territorial unit in question.

Article 24

    A State within which different territorial units have their own rules of law in respect of trusts is not bound to apply the Convention to conflicts solely between the laws of such units.

Article 25

    The Convention shall not affect any other international instrument containing provisions on matters governed by this Convention to which a Contracting State is, or becomes, a Party.

CHAPTER V - FINAL CLAUSES

Article 26

    Any State may, at the time of signature, ratification, acceptance, approval or accession, or at the time of making a declaration in terms of Article 29, make the reservations provided for in Articles 16, 21 and 22.

    No other reservation shall be permitted.

    Any Contracting State may at any time withdraw a reservation which it has made; the reservation shall cease to have effect on the first day of the third calendar month after notification of the withdrawal.

Article 27

    The Convention shall be open for signature by the States which were members of the Hague Conference on Private International Law at the time of its Fifteenth Session.

    It shall be ratified, accepted or approved and the instruments of ratification, acceptance or approval shall be deposited with the Ministry of Foreign Affairs of the Kingdom of the Netherlands.

Article 28

    Any other State may accede to the convention after it has entered into force in accordance with Article 30, paragraph 1.

    The instrument of accession shall be deposited with the Ministry of Foreign Affairs of the Kingdom of the Netherlands.

    The accession shall have effect only as regards the relations between the acceding State and those Contracting States which have not raised an objection to its accession in the twelve months after the receipt of the notification referred to in Article 32. Such an objection may also be raised by Member States at the time when they ratify, accept or approve the Convention after an accession. Any such objection shall be notified to the Ministry of Foreign Affairs of the Kingdom of the Netherlands.

Article 29

    If a State has two or more territorial units in which different systems of law are applicable, it may at the time of signature, ratification, acceptance, approval or accession declare that this Convention shall extend to all of its territorial units or only to one or more of them and may modify this declaration by submitting another declaration at any time. Any such declaration shall be notified to the Ministry of Foreign Affairs of the Kingdom of the Netherlands and shall state expressly the territorial units to which the Convention applies.

    If a State makes no declaration under this article, the Convention is to extend to all territorial units of that State.

Article 30

    The Convention shall enter into force on the first day of the third calendar month after the deposit of the third instrument of ratification, acceptance or approval referred to in Article 27.

    Thereafter the Convention shall enter into force--

(a) for each State ratifying, accepting or approving it subsequently, on the first day of the third calendar month after the deposit of its instrument of ratification, acceptance or approval;

(b) for each acceding State, on the first day of the third calendar month after the expiry of the period referred to in Article 28;

(c) for a territorial unit to which the Convention has been extended in conformity with Article 29, on the first day of the third calendar month after the notification referred to in that article.

Article 31

    Any Contracting State may denounce this Convention by a formal notification in writing addressed to the Ministry of Foreign Affairs of the Kingdom of the Netherlands, depositary of the Convention.

    The denunciation takes effect on the first day of the month following the expiration of six months after the notification is received by the depositary or on such later date as is specified in the notification.

Article 32

    The Ministry of Foreign Affairs of the Kingdom of the Netherlands shall notify the States Members of the Conference and the States which have acceded in accordance with Article 28, of the following -

(a) the signatures and ratifications, acceptances or approvals referred to in Article 27;

(b) the date on which the Convention enters into force in accordance with Article 30;

(c) the accessions and the objections raised to accessions referred to in Article 28;

(d) the extensions referred to in Article 29;

(e) the declarations referred to in Article 20;

(f) the reservation or withdrawals referred to in Article 26;

(g) the denunciations referred to in Article 31.

    In witness whereof the undersigned, being duly authorized thereto, have signed this Convention.

     Done at The Hague, on the...................day of................., 19 .................., in English and French, both texts being equally authentic, in a single copy which shall be deposited in the archives of the Government of the Kingdom of the Netherlands, and of which a certified copy shall be sent, through diplomatic channels, to each of the States Members of the Hague Conference on Private International Law at the date of its Fifteenth Session.