XI. 2014.22.
\n
43B. Notwithstanding the provisions of article 43A, a trustee set up as a company (a) whose object and activities are limited to acting as trustee in relation to a specific settlor or settlors and providing administrative services in respect of a specific family trust or trusts; and (b) which does not otherwise hold itself out as a trustee to the public; and (c) which does not act habitually as a trustee, in any case in relation to more than five settlors at a time, shall not require authorisation in terms of this Act but shall be required to apply for registration by the Authority under this article, and no company shall act as a trustee for a family trust T R U S T S A ND T R U S T E E S unless it is so registered. The registration process shall be established by rules issued by the Authority under article 52(3) and trustees shall comply with any registration requirements and conditions imposed by the Authority:
\n
Provided that for the purposes of this sub-article, a \"family trust\" shall mean a trust created to hold property settled by the settlor or settlors for the present and future needs of family members or family dependants who are definite and can be ascertained:
\n
Provided further that for the purposes of this article, rules issued by the Authority in terms of article 52 of this Act may further define the meaning of the terms \"family members\" and \"family dependants\".
\n
DUTY OF AUDITORS 43C. (1) An auditor of a trustee authorised in terms of the Act, shall have the duty to report immediately to the Authority any fact or decision of which he becomes aware in his capacity as auditor of such trustee which: (a) is likely to lead to a serious qualification or refusal of the auditor’s report on the accounts of such trustee; or (b) constitutes or is likely to constitute a material breach of the legal or regulatory requirements applicable to trustees under this Act; or (c) gravely impairs the trustee’s ability to continue as a going concern; or (d) relates to any other matter which may be prescribed:
\n
Provided that the matters prescribed in this paragraph may include matters related to any interested person other than the trustee.
\n
(2)The auditor of a corporate trustee shall report to the Authority any facts or decision, as specified in sub-article (1), regarding any person having close links with such trustee of which he becomes aware in his capacity as auditor of the trustee or of the person having such close links.
\n
(3)No duty (including the duty of professional secrecy) to which an auditor of the trustee may be subject, shall be regarded as contravened by reason of his communicating in good faith to the Authority, whether or not in response to a request from it, any information or opinion on a matter of which the auditor has become aware in his capacity as auditor of that trustee and which is relevant to any function of the Authority under the provisions of the Act or is required to be communicated by virtue of sub-article (1).
\n
Auditor’s duty to report.
\n
Added by:
\n
XI. 2014.23.
\n
TRUSTS AND TRUSTEES Substituted by:
\n
XIII. 2004.29.
\n
APPLICATION, GRANT, REVOCATION, ETC., OF AUTHORISATION Application for authorisation.
\n
Amended by:
\n
XIV. 1989.8;
\n
XX. 1994.4.
\n
Substituted by:
\n
XIII. 2004.29.
\n
Amended by:
\n
XI. 2014.44.
\n
44.(1) An application for authorisation in terms of article 43 shall be made in the form and manner required by the Authority and shall furthermore: (a) contain or be accompanied by such information and particulars, in addition to those required by this article, as the Authority may require or as may be prescribed; (b) be verified in the manner and to the extent required by the Authority, or as may be prescribed; (c) contain the address in Malta for service on the applicant of any notice or other document required or authorised to be served on him by or under this Act; (d) be accompanied by a programme of operations setting out such matters as may be prescribed by the Authority from time to time; (e) be accompanied by such fee as may be prescribed in respect of the authorisation applied for.
\n
(2)Where close links exist between an applicant and any other person, the Authority shall: (a) only grant a licence if it considers that such close links do not prevent it from exercising its supervisory functions; and (b) refuse to grant such a licence if it considers that the laws, regulations or administrative provisions of any country outside Malta governing one or more persons with whom the applicant has close links, or their enforcement prevent the effective exercise of its supervisory functions.
\n
Power to refuse or grant authorisation.
\n
Amended by:
\n
XX. 1994.4.
\n
Substituted by:
\n
XIII. 2004.29.
\n
Amended by:
\n
XXIX.2025.3.
\n
45.(1) The Authority may grant authorisation applied for under this Act. or refuse to grant
\n
(2)In granting authorisation the Authority may subject it to such conditions as it may deem appropriate, and having granted authorisation it may, from time to time, vary or revoke any condition so imposed or impose new conditions.
\n
(3)When considering whether to grant or refuse authorisation the Authority shall, in particular, have regard to: (a) the protection of settlors and beneficiaries; and (b) the protection of the reputation of Malta taking into account Malta’s international commitments; and (c) the promotion of competition and choice.
\n
(4)Without prejudice to the provisions of article 43(8), the Authority shall notify any applicant of its decision whether to grant or refuse to grant the authorisation applied for within three months from the receipt of a complete application made in compliance with the applicable provisions of this Act.
\n
(5)Any requirement in this Act that a person be an approved T R U S T S A ND T R U S T E E S p e r s o n t o ca r r y o u t ce r t a i n ac t i v i t i e s o r f u n c t io n s sh a l l b e interpreted as a requirement that, in the case of a legal entity, any director or officer of such person, and, in the case of a trust, each one of its trustees, be an approved person to carry out such activities or functions.
\n
(6)The provisions of this article shall also apply, mutatis mutandis, with respect to registration applied for in accordance with article 43B.
\n
46.The Authority may at any time cancel or suspend an authorisation in accordance with the provisions of this Act: (a) if it considers that the holder thereof is not or is no longer an approved person to act as a trustee; or (b) if it considers that the holder thereof does not fulfil the requirements of, or has contravened, any of the provisions of this Act or of any rules or regulations made thereunder, or has failed to satisfy or comply with any obligation or condition to which he or the authorisation is subject by virtue of or under this Act; or (c) if the Authority has been furnished by or on behalf of the authorised trustee with information which is false, inaccurate or misleading; or (d) if the authorised trustee does not commence activities pursuant to its authorisation within twelve months of its issue or within such other period as may be specified in the authorisation or has ceased to provide such service; or (e) if it considers it desirable to cancel or suspend the authorisation for the protection of the general public or the reputation of Malta taking into account Malta’s international commitments; or (f) at the request of the authorised trustee; or (g) in any other circumstances under which the Authority would have been precluded from issuing an authorisation under this Act or where it would have been entitled to refuse the grant of such authorisation:
\n
Provided that the provisions of this article shall also apply, mutatis mutandis, with respect to a registration applied for in accordance with article 43B and granted in accordance with article 45.
\n
Power to cancel or suspend authorisation.
\n
Amended by:
\n
XIV. 1989.9.
\n
Substituted by:
\n
XIII. 2004.29.
\n
Amended by:
\n
XI. 2014.25;
\n
XXIX.2025.4.
\n
Notification of proposed refusal, variation, cancellation or suspension of an authorisation.
\n
Added by:
\n
XX. 1994.4.
\n
Substituted by:
\n
XIII. 2004.29.
\n
Amended by:
\n
XXIX.2025.5.
\n
TRUSTS AND TRUSTEES 46A. (1) Where the Authority proposes (a) to vary any condition to which the authorisation is subject or to impose a condition thereon; or (b) to refuse an application for an authorisation or to cancel or suspend an authorisation, it shall give the applicant or, as the case may be, the authorised trustee notice in writing of its intention to do so, setting out the reasons for the decision it proposes to take.
\n
(2)Every notice given under subarticle (1) shall state that the recipient of the notice may, within such reasonable period after the service thereof as may be stated in the notice, being a period of not less than forty-eight hours and not longer than thirty days, make representations in writing to the Authority giving reasons why the proposed decision should not be taken, and the Authority shall consider any representation so made before arriving at a final decision.
\n
(3)The Authority shall as soon as practicable notify its final decision in writing to the applicant or the authorised trustee, as the case may be.
\n
(4)The provisions of this article shall also apply, mutatis mutandis, with respect to a registration applied for in accordance with article 43B or a registration granted in accordance with article 45, as applicable.
\n
Power of the competent authority to protect the public interest.
\n
Added by:
\n
XI. 2014.26.
\n
46B. (1) Without prejudice to the powers conferred to the competent authority under article 46, the competent authority may, where it is satisfied that sufficient circumstances exist, proceed to take any one or more of the following measures: (a) require the trustee to take forthwith such steps as the competent authority may consider necessary to rectify or remedy the matter; (b) appoint a person to advise the trustee in the proper conduct of its business; (c) appoint a person to take charge of the assets of the trustee, or any portion thereof, for the purposes of safeguarding the interests of the shareholders or any creditors of the trustee as well as any other interested person; (d) appoint a person to assume control of the business of the trustee either to carry on that business or to carry out such function or functions in respect of such business or part thereof, as the competent authority may direct; (e) fix the remuneration to be paid by the trustee to any person appointed under this article; (f) require the trustee to submit a financial recovery plan as may be determined in any rules issued by the Authority, if it considers that the interests of the T R U S T S A ND T R U S T E E S creditors or other interested persons are likely to be prejudiced owing to a deterioration in the financial position of the trustee; (g) do such other act or require the doing of such other act as it may deem appropriate in the circumstances; and having proceeded in any one or more of the manners aforesaid, the competent authority may further proceed in any one or more such manners, whether in addition thereto or in substitution therefor.
\n
(2)Where a person is appointed by the competent authority (a) under sub-article (1)(b), it shall be the duty of the trustee to act in accordance with the advice given by such person unless and until the competent authority, on representation made to it, directs otherwise; (b) under sub-article (1)(c), the trustee shall deliver to such person all the assets of which he is placed in charge, and all the powers, functions and duties of the trustee in respect of those assets, whether exercisable by the trustee or otherwise, shall be exercisable by and vest in the person appointed under the said paragraph to the exclusion of any other person; (c) under sub-article (1)(d), the trustee shall submit its business to the control of such person and shall provide him with such facilities as he may require the trustee to provide him to carry on that business or to carry out the functions assigned to him under the said paragraph; and all the powers, functions and duties of the trustee, shall be exercisable by and vest in him to the exclusion of any other person.
\n
(3)The competent authority may, where it feels is in the best interest of the public so to do, make or issue public statements or notices giving warnings or information about any action taken in terms of article 46, article 46A and this article.
\n
(4)The competent authority may require the trustee concerned to pay all the expenses of, and incidental to, the publication or issue of public statements or notices pursuant to this article or such part thereof as it may deem appropriate; and any sum so due shall be recoverable by the competent authority in the same manner as an administrative penalty imposed under this Act.
\n
REGULATORY AND INVESTIGATORY POWERS Substituted by:
\n
XIII. 2004.29.
\n
Power to require information.
\n
Amended by:
\n
XIV. 1989.10;
\n
XX. 1994.4.
\n
Substituted by:
\n
XIII. 2004.29.
\n
Amended by:
\n
XXIX.2025.6.
\n
TRUSTS AND TRUSTEES 47. (1) Notwithstanding any other provision of this Act, the Authority may, by notice in writing, require any person who is or was acting, or who appears to be or to have been acting as trustee, or who was providing services which require authorisation or registration according to this Act, and any other person who appears to be in possession of relevant information to do all or any of the following: (a) to furnish to the Authority, at such time and place and in such form as it may specify, such information and documentation as it may require with respect to any such activities as aforesaid; (b) to furnish to the Authority any information or documentation aforesaid verified in such manner as it may specify; (c) to attend before the Authority, or before a person appointed by it, at such time and place as it may specify, to answer questions and provide information and documentation with respect to any such activities as aforesaid.
\n
(2)The Authority may take copies of any documents furnished or provided under this article.
\n
(3)Where the person required to provide information or documentation under this article does not have the relevant information or documentation, he shall disclose to the Authority where, to the best of his knowledge, that information or documentation is, and the Authority may require any person, whether indicated as aforesaid or not, who appears to it to be in possession of that information or documentation, to provide it.
\n
(4)A statement made and documentation provided in pursuance of any requirement under this article may be used in evidence against the person making the statement or providing the documentation as well as against any person to whom they relate.
\n
(5)Except as provided for in article 642(1) of the Criminal Code and of article 588(1) of the Code of Organization and Civil P r o c e d u r e , t h e p r o v i s i o n s o f t h i s a r t i c l e sh a l l a p p l y t o a l l information or documentation notwithstanding the provisions of the Professional Secrecy Act.
\n
(6)The power to require the production of documentation under the provisions of this article shall be without prejudice to any lien or charge claimed by any person in relation to such documentation.
\n
(7)Where the Authority has appointed a person under subarticle (1)(c), such person shall, for the purposes of carrying out his functions under his appointment, have all the powers conferred on the Authority by this article and a requirement made by him shall be deemed to be and have the same force and effect as a requirement of the Authority.
\n
T R U S T S A ND T R U S T E E S 48. (1) Without prejudice to any of the powers conferred on it by this Act, the Authority may, whenever it deems it necessary, g i v e , b y n o t i c e i n w r i t i n g , su c h d i r e c t i v e s a s i t m a y d e e m appropriate in the circumstances; and any person to whom or to which the notice is given shall obey, comply with and otherwise give effect to any such directive within the time and in the manner stated in the directive.
\n
Power to issue directives.
\n
Amended by:
\n
XIV. 1989.11;
\n
XX. 1994.4.
\n
Substituted by:
\n
XIII. 2004.29.
\n
(2)Without prejudice to the generality of the foregoing provisions of this article, a directive under this article may (a) require anything to be done or be omitted to be done, or impose any prohibition, restriction or limitation, or any other requirement, and confer powers, with respect to any transaction or other act, or to any assets, or to any other thing whatsoever; (b) require that any person having functions of a trustee be removed or replaced by another person acceptable to the Authority; (c) require a trustee to cease operations and to wind up its affairs, in accordance with such procedures and directions as may be specified in the directive, which may provide for the appointment of a person to take possession and control of all documents, records, assets and property belonging to or in the possession or control of the trustee.
\n
(3)The power to give directives under this article shall include the power to vary, alter, add to or withdraw any directive, as well as the power to issue new or further directives.
\n
(4)Where the Authority is satisfied that the circumstances so warrant, it may at any time make public any directive it has given under any of the provisions of this article.
\n
49.(1) In relation to trustees, the provisions of article 17 of the Malta Financial Services Authority Act shall apply mutatis mutandis.
\n
(2)The Authority may exercise the powers granted to it by virtue of this Act at the request of or for the purposes of assisting an overseas regulatory authority: (a) where the assistance is required by the overseas regulatory authority for the purposes of the exercise of one or more of its regulatory functions; or (b) where so required within the terms of Malta’s international commitments; or (c) where so required within the terms of undertakings assumed in bilateral or multilateral agreements for the exchange of information and other forms of collaboration with overseas regulatory authorities including a request under a memorandum of understanding concluded with the Authority.
\n
Exchange of information and collaboration.
\n
Added by:
\n
XIII. 2004.31.
\n
Right of entry.
\n
Amended by:
\n
XX. 1994.4.
\n
Substituted by:
\n
XIII. 2004.32.
\n
TRUSTS AND TRUSTEES 50. (1) Any officer, employee or agent of the Authority, on producing, if required, evidence of his authority, may enter premises occupied by a person on whom a notice has been served under this Act for the purpose of obtaining the information or documents required by that notice, or otherwise for the purpose of the investigation, and of exercising any of the powers conferred upon it.
\n
(2)Where any officer, employee or agent of the Authority has reasonable cause to believe that if such notice as is referred to in subarticle (1) were served it would not be complied with or that any documents to which it could relate would be removed, tampered with or destroyed, such person may, on producing, if required, evidence of his authority, enter any premises referred to in s u b a r t i c l e ( 1 ) f o r t h e p u r p o s e o f o b t a i n i n g f r o m t h er e a n y in formation or docum en ts sp ecified in the auth orit y, being information or documents that could have been required under such notice as is referred to in subarticle (1).
\n
(3)For the purposes of any action taken under the provisions of this article, the Authority may request the assistance of the Commissioner of Police, who may for such purpose exercise such powers as are vested in him for the prevention of offences and the enforcement of law and order.
\n
SANCTIONS Added by:
\n
XIII. 2004.32.
\n
Offences and administrative sanctions.
\n
Amended by:
\n
XIV. 1989.12.
\n
Substituted by:
\n
XIII. 2004.32.
\n
Amended by:
\n
L.N. 424 of 2007;
\n
X. 2011.11;
\n
XI. 2014.27;
\n
XXXI. 2017.13.
\n
51.(1) Any person who contravenes or fails to comply with any of the provisions of this Act, or contravenes or fails to comply w i t h a n y authorisation, registration, condition, obligation, requirement, directive or order made or given under any of the provisions of this Act, shall be guilty of an offence.
\n
(2)Any person who for the purposes of, or pursuant to, any of the provisions of this Act or of any rules or regulations made thereunder, or any condition, obligation, requirement, directive or order made or given as aforesaid, furnishes information or makes a statement or declaration which he knows to be inaccurate, false or m isleading in any material respect, or recklessl y furnishes information or makes a statement which is inaccurate, false or misleading in any material respect, shall be guilty of an offence.
\n
(3)Any person who with intent to avoid detection of the commission of an offence under this Act, removes, destroys, conceals or fraudulently alters any book, document or other paper, shall be guilty of an offence.
\n
(4)Any person who intentionally obstructs a person exercising T R U S T S A ND T R U S T E E S rights conferred by this Act shall be guilty of an offence.
\n
(5)Any person who acts or purports to act as a trustee in Malta without being authorised or registered to do so by the Authority, when so required in terms of this Act, shall be guilty of an offence.
\n
(6)Any person who is guilty of an offence under subarticles
\n
(1), (2), (3), (4) and (5) and, saving any higher punishment which may be provided under any other law, shall be liable, on conviction, to a fine (multa) not exceeding four hundred and sixty-six thousand euro (€466,000) or to a term of imprisonment not exceeding four years, or to both such fine and imprisonment.
\n
(7)(a) Without prejudice to any other powers assigned to the Authority in terms of this Act, where a trustee, or a director of a trustee company or any other person entrusted with the management and administration thereof, or any other person having obligations with respect to the trustee, contravenes or fails to comply with any of the conditions imposed in an authorisation issued under article 43, or the conditions imposed in article 43A, or the conditions imposed by the Authority upon registration in accordance with article 43B, and, or where the Authority is satisfied that the trustee’s or the person’s conduct amounts to a breach of any provisions of the Act, regulations or rules issued thereunder, or of any directive, obligations or other requirement made or given by the Authority, including failure to cooperate in an investigation, the Authority may by notice in writing and without recourse to a court hearing, impose an administrative penalty which may not exceed one hundred and fifty thousand euro (€150,000) for each infringement or failure to comply, as the case may be. (b) Administrative penalties or other measures that may be imposed by the Authority on a trustee or any of the persons referred to in paragraph (a) as may be specified, may be imposed in the form of a fixed penalty, a daily penalty, or both. (c) The imposition by the Authority of an administrative penalty in terms of this sub-article shall be without prejudice to any other consequence of the act or omission of the offender under civil or criminal law:
\n
Provided that in all cases where the Authority imposes an administrative penalty in respect of anything done or omitted to be done by any person and such act or omission also constitutes a criminal offence, no proceedings may be taken or continued against the said person in respect of such criminal offence. (d) The provisions of article 16(8) of the Malta Financial Services Authority Ac shall apply mutatis mutandis to any administrative or disciplinary sanction or measure, of whatever type, including administrative penalties, reprimands or warnings, imposed or decided by the Authority under this Act, and any regulations or rules made thereunder.
\n
(8)A breach or non-observance by any person of any provision TRUSTS AND TRUSTEES of this Act relating to the authorisation of such person to act as a trustee or otherwise shall not in any manner prejudice the validity or enforceability of a trust or affect the duties and responsibilities of such person in terms of this Act.
\n
Added by:
\n
XIII. 2004.32.
\n
RULES Power to issue rules.
\n
Amended by:
\n
XX. 1994.4.
\n
Substituted by:
\n
XIII. 2004.32.
\n
Amended by:
\n
XI. 2014.28;
\n
XI.2025.3.
\n
52.(1) The Authority may issue rules governing trustees, whether authorised or not required to obtain authorisation in terms of this Act, the operat ions of trustees in Mal ta, and on the qualifications to act as trustees. The rules shall be binding on the trustees and other persons as may be specified therein. The rules may lay down additional requirements and conditions in relation to the activities of trustees, their responsibilities to the Authority, a code of conduct, and any other matters as the Authority may consider appropriate, including the form and content of accounting records to be kept by trustees.
\n
(2)The Authority may also issue rules to establish which activities constitute administrative services in relation to trusts and to establish the criteria for the conduct of these activities.
\n
(3)The Authority may also issue rules to regulate trustees which are subject to a registration procedure in terms of article 43B. The rules may lay down additional requirements and conditions in relation to the activities of such trustees, their responsibilities to the Authority, adherence to a code of conduct and any other matter as the Authority may consider appropriate.
\n
Disqualification orders.
\n
Added by:
\n
XX. 1994.4.
\n
Substituted by:
\n
XIII. 2004.32.
\n
Amended by:
\n
X. 2011.12.
\n
53.(1) The court, upon the application of the Authority, may make a disqualification order against any person who is found guilty of an offence under this Act or any other law, other than an offence punishable only with a fine, or who has infringed any requirement of this Act.
\n
(2)The court, upon the application of the Authority or any interested person, may also make a disqualification order against any person if it is satisfied that his conduct as a trustee of a trust, either taken alone or taken together with his conduct as a trustee of any other trust or trusts, makes him unfit to be a trustee.
\n
(3)A disqualification order made under this article may be for a minimum period of one year and a maximum period of fifteen years.
\n
(4)For the purposes of this article, a disqualification order is an order whereby a person shall not, without leave of the court (a) be a trustee of a trust or a private foundation; or (b) be delegated any functions, duties or powers of a trustee; or (c) perform or exercise any functions or otherwise act in a fiduciary capacity in relation to a mandate, trust or a private foundation.
\n
T R U S T S A ND T R U S T E E S
\n
(5)A notice of a disqualification order made under this article shall (a) be delivered by the Registrar of Courts to the Authority; (b) be furthermore recorded in a register to be kept for this purpose by the Authority and which shall be open for public inspection.
\n
(6)Any person who, while being subject to a disqualification order, acts in contravention thereof, shall be guilty of an offence and liable on conviction to a fine (multa) of not more than fortyseven thousand euro (€47,000) or imprisonment for a term not exceeding three years or to both such fine and imprisonment.
\n
(7)The provisions of this article shall be without prejudice to any other offences or remedies which may exist under any other law.
\n
54.A person shall not be qualified for appointment or to hold office as trustee if (a) he is interdicted or incapacitated or is an undischarged bankrupt;
\n
Persons not qualified to act as trustees.
\n
Added by:
\n
XIII. 2004.33. (b) he has been convicted of any of the crimes affecting public trust or of theft or of fraud or of knowingly receiving property obtained by theft or fraud; (c) he is a minor; or (d) he is subject to a disqualification order under article 53.
\n
APPEALS Added by:
\n
XIII. 2004.33.
\n
55.(1) In this article, the \"Financial Services Tribunal\" means the Tribunal established in terms of article 21 of the Malta Financial Services Authority Act, and the term \"Tribunal\" shall be construed accordingly; and the provisions of the said article 21 shall, except in so far as any of them is incompatible with the provisions of this article, apply to appeals made to the Financial Services Tribunal under this Act.
\n
Appeals.
\n
Added by:
\n
XIII. 2004.33.
\n
Amended by:
\n
XI. 2014.29.
\n
XXXI. 2017.14.
\n
(2)Any person who is aggrieved by a decision of the Authority (a) to refuse the issue of an authorisation or registration; (b) to impose or vary any condition of an authorisation or registration; (c) to impose or vary any restriction; (d) to revoke an authorisation; (e) to issue a directive under this Act; (f) to impose an administrative penalty in terms of article 51(7), TRUSTS AND TRUSTEES may appeal against the decision to the Financial Services Tribunal within such period and under such conditions as are established under the Malta Financial Services Authority Act.
\n
(3)An appeal against a decision of the Authority shall not suspend the operation of that decision.
\n
Meaning of term trustee.
\n
Added by:
\n
XIII. 2004.33.
\n
56.For the purpose of articles 44 till 55 the term \"trustee\" shall be construed as including those persons referred to in article 43(12).
\n
GENERAL PROVISIONS Power to make regulations or rules.
\n
Amended by:
\n
XX. 1994.4;
\n
XIII. 2004.30;
\n
XI. 2014.7;
\n
XVI. 2011.58;
\n
XI. 2014.30;
\n
V.2020.9.
\n
57.(1) The Minister may, on the advice of the Authority make regulations or rules for the better carrying out of any of the provisions of this Act, and may, in particular, but without prejudice to the generality of the foregoing, by any such regulations or rules (a) provide for the returns, statements, and notices to be made or given for any of the purposes of this Act, and the form and contents thereof; (b) regulate the conduct, duties and other obligations of trustees, including the returns, statements and other information they are to submit to the Authority, and establish the maximum amount which, notwithstanding any provision of this Act, may be charged as fees by such trustees; (c) alter any fees established by any provision of this Act, and amend any such provision accordingly to reflect changes in the cost of living or in the value of currencies, and establish such other fees as may be deemed appropriate in respect of any matter for which a fee is not provided by this Act; (d) make rules of court for any purpose of this Act and of proceedings thereunder, providing by such rules for any matter referred to in article 29 of the Code of Organization and Civil Procedure; (e) to further regulate the activities of trustees as well as the services provided and activities carried on or in conjunction therewith or in relation thereto, providing for any matter he may deem expedient including the creation and exercise of rights by or for the benefit of the beneficiaries or settlors and the imposition of duties and obligations on persons authorised to act as trustees; (f) to establish the requirements relating to the books of account to be maintained by trustees, the form and content of accounts which trustees are obliged to prepare, which accounts have to give a true and fair view of the assets under trusts, the requirements of review or audit on such accounts, the duties of auditors T R U S T S A ND T R U S T E E S who may be engaged and related matters; (g) to exempt any activities or classes of persons from the requirements of articles 43 and 43A and to impose conditions he may deem fit for eligibility for exemption; (h) without prejudice to any rules which may apply in terms of the Investment Services Act, or the Retirement Pensions Act, to establish rules applicable to the responsibilities of trustees of unit trusts under this Act, the issue of units, the rights and responsibilities of unit holders and any other matters which may need to be regulated relating to unit trusts; (i) to regulate any matters in connection with the use of
\n
trusts in commercial transactions, to establish conditions for such use including the prohibition of such use, and to amend the definition of commercial transaction in this Act; (j) to regulate any matter in relation to security trustees and security trusts, including the definition of what constitutes fair and reasonable actions in relation to enforcement of security trustees; (k) to regulate trusts which provide for maintenance of persons or for the provision of annuities or pensions; (l) to regulate the accumulation of income and distribution of income and capital by trustees and ancillary matters; (m) to regulate the duties of private trustees and the duties and functions of depository notaries, procedures to be adopted for the safekeeping and registration of all documents filed with such notary in relation to a trust and all ancillary matters; (n) to regulate matters in relation to trusts created by holders of public office and such other persons as may be prescribed, including the qualifications of the trustees, the powers of appointment of such trustees, the powers and duties of such trustees, the rights of beneficiaries and third parties in such cases and all ancillary matters; (o) regulate the authorisation and regulation of sub-trusts to be used in connection with collective investment schemes and retirement schemes; (p) regulate the registration, conservation and access of notarial trust deeds as referred to in article 43A; (q) regulate the matters in relation to the registration by the Authority of notaries acting as qualified persons, including the powers and duties of such qualified persons and any information which they may be required to submit to the Authority, and to establish any fees payable to the Authority in respect of the registration and the supervision thereof;
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TRUSTS AND TRUSTEES (r) exempt any activities or classes of persons from the requirements in article 43(12) and to impose conditions it may deem fit for eligibility for exemption; (s) regulate any matters in connection with the use of trusts for persons with disability, including the conduct, duties and other obligations of persons acting as trustees of such trusts; (sA) regulate the conduct, duties and other obligations of administrators, trustees, directors or similar functionaries exercising control over the assets of a private foundation, as defined in article 43(12), including the returns, statements and other information they are to submit to the Authority, and establish the maximum amount which, notwithstanding any provision of this Act, may be charged as fees by such functionaries; (sB) regulate the conduct, duties and other obligations of persons acting as administrators of private foundations for persons with disability; (t) transpose, implement and give effect to the provisions and requirements of Directives, Regulations and any other legislative measures of the European Union requiring transposition and, or implementation, as they may be amended from time to time, including any implementing measures that have been or may be issued thereunder and relating to licence holders and others as may be specified therein or to any other matter falling within the terms of this Act, and for this purpose to provide that any provision in any other law shall not apply to matters falling under the regulations; and (u) prescribe any matter that may or is to be prescribed.
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(2)Regulations made under any of the provisions of this Act may be made in the English language only.
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(3)Regulations made under this article may be made subject to such exemptions or conditions as may be specified therein, may make different provision for different cases, circumstances or purposes and may give to the Authority such powers of adaptation of the regulations as may also be so specified.
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(4)Where regulations have been made in terms of this article, the Authority may issue Rules within the meaning of article 52 for the better carrying out and to better implement the provisions of the regulations.
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(5)Regulations made under this article may impose punishments or other penalties in respect of any contravention or failure of compliance not exceeding a fine (multa) of one hundred and fifty thousand euro (€150,000) or imprisonment for a term not exceeding one year, or both such fine and imprisonment.
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T R U S T S A ND T R U S T E E S TRANSITORY PROVISIONS 58. (1) Subject to the provisions of the Trusts and Trustees (Amendment) Act, 2014, trustees and providers of other fiduciary services in possession of an authorisation before the date of coming into force of the amendments contained in the Act abovementioned shall take all necessary measures to comply with the provisions of articles 43(4)(i)(e), 43(4)(ii)(e), 43(13)(i)(e), 43(13)(ii)(d) and article 43C within six months from the said date.
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Transitory provisions.
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Added by:
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XI. 2014.31.
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Act XI of 2014.
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(2)Trustees in possession of an authorisation prior to the coming into force of the amendments contained in the Act abovementioned shall comply with the provisions of articles 43(4)(i)(d), 43(4)(ii)(d) within two years from the said date.
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(3)Mandatories in possession of an authorisation prior to the coming into force of the amendments contained in the Act abovementioned shall comply with the provisions of article 43(13)(i)(d) and article 43(13)(ii)(c), within two years from said date.
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Transitory provisions - Act XIII of 2004:
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35.(1) The following provisions in this Part shall apply in relation to registered trusts, trustees of unregistered trusts, licensed nominees and nominee companies as referred to in the principal Act (Cap. 331) as in force immediately before the coming into force of this Part and the Malta Financial Services Centre Act as retained in force by Act XVII of 2002 (hereinafter referred to as \"the applicable law\").
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Transitory provisions.
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(2)Upon the coming into force of this Part no further trusts shall be registered in terms of the principal Act as in force immediately before the coming into force of this Part.
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Registered trusts.
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(3)All trusts registered prior to the coming into force of this Part shall continue to be regulated by the principal Act as in force immediately before the coming into force of this Part for a maximum period of ten years from the date of their registration and they shall continue to enjoy the rights and exemptions and other privileges due as provided by the principal Act as in force immediately before the coming into force of this Part.
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(4)A trustee of a registered trust in relation to which the period of ten years has expired prior to the coming into force of this Part shall amend the trust deed in consultation with the settlor, any protector or other interested parties so as to achieve compliance with the principal Act as amended by this Part within a maximum period of two years from the coming into force of this Part.
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(5)A trustee of a registered trust in relation to which the said period of ten years is due to expire on or after the coming into force of this Part shall amend the trust deed in consultation with the settlor, any protector or other interested party so as to achieve compliance with the principal Act as amended by this Part within a maximum period of two years from the expiry of the said period of ten years.
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TRUSTS AND TRUSTEES
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(6)Notwithstanding the provisions of subarticles (4) and (5), a trustee of a registered trust may at any time prior to the lapse of said period of ten years amend the trust deed as aforesaid to achieve compliance with the principal Act as amended by this Part and such am endment shall im ply a waiver of all rights and exemptions and other privileges contemplated by the provisions of the principal Act as in force immediately before the coming into force of this Part.
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Trustees of unregistered trusts.
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(7)The trustee of any trust, other than a registered trust, which is in existence on the date of the coming into force of this Part, and to which the provisions of article 43(1) of the principal Act as amended by this Part applies, shall, within two years of such date, do all such acts as may be necessary to comply with the provisions of the principal Act including: (a) applying for and obtaining authorisation as a trustee in terms of article 43 of the principal Act as amended by this Part; or (b) making the relevant declarations and preparing such inventory of trust assets as required by article 43A of the principal Act as amended by this Part; or (c) notifying the Authority of his activities to the extent necessary; or (d) cease to act as a trustee in Malta unless he obtains authorisation as required by the principal Act as amended by this Part.
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(8)Nothing validly done in relation to a trust prior to the coming into effect of this Part shall be affected hereby and no action carried out prior to the coming into force of this Part and, without prejudice to any trust regulated by a foreign law and the provisions of the Recognition of Trusts Act, no relationship in existence prior to the coming into force of this Part shall be treated as a trust relationship unless it unambiguously appears from the relationship that it was intended to create a trust relationship.
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Licensed nominees.
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(9)On the coming into force of this Part, no further licences to act as a licensed nominee shall be issued in terms of the applicable law and all existing valid licences issued up to such date shall expire upon the lapse of two years from the coming into force of this Part.
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(10)(a) Upon the lapse of six months from the coming into force of this Part and until the expiry date referred to in subarticle (9), no licensed nominee shall undertake any new nominee activities and licensed nominees shall only continue to service existing arrangements. (b) A licensed nominee shall, prior to the lapse of two years from the coming into force of this Part (i) either apply for authorisation under article 43 of the principal Act as amended by this Part; (ii) or cease its business activities:
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Provided that if such licensed nominee does not obtain T R U S T S A ND T R U S T E E S authorisation to act as a trustee under article 43, such licensed nominee shall be obliged to ensure that all rights of property held under trusts or other arrangements are transferred in the form required by law to a person who is duly authorised to act as trustee in terms of article 43 or that the provisions of article 43A are fully complied with, as the case may be.
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(11)Notwithstanding any limitation in any memorandum and articles of association of any licensed nominee company in terms of the applicable law, any such company may at any time apply for and may be granted authorisation to act as a trustee in terms of the principal Act as amended by this Part.
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(12)Upon the issue, in terms of article 43 of the principal Act as amended by this Part, of authorisation to any such company to act as a trustee in terms of article 43 of the said Act, any licence issued pursuant to the applicable law shall expire and be cancelled and shall be surrendered to the Authority.
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(13)Upon the coming into force of this Part no further warrants to act as a nominee company shall be issued in terms of the applicable law.
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(14)(a) Where upon the coming into force of this Part, a nominee company is solely performing the functions of liquidator of offshore companies, it shall immediately submit its warrant to the Authority for modification and such warrant shall continue to be renewed only in relation to the functions of liquidator and until such time as the nominee company completes the winding u p o f s u c h o ff s h o r e c o m p a n i e s , w h e r e u p o n t h e nominee company shall immediately surrender its modified warrant to the Authority for cancellation. (b) A nominee company solely performing the functions of liquidator as aforesaid shall not act as trustee in any manner and shall not be entitled to apply for authorisation to act as trustee in terms of the principal Act as amended by this Part.
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(15)(a) Where upon the coming into force of this Part, a nominee company is solely performing the functions of t r u s t e e o f r e g i st e r e d t r u s t s, t h e w a r r a n t o f s u c h nominee company shall be renewable for a maximum period of two years from the coming into force of this Part and such nominee company shall, during the said period, continue to be regulated by the principal Act as in force prior to the coming into force of this Part and by the relevant provisions of the applicable law. (b) A nominee company solely performing the functions of trustee as aforesaid shall, prior to the lapse of the period of two years from the coming into force of this Part: (i) either apply for authorisation to act as trustee under article 43 of the principal Act as amended Nominee companies.
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TRUSTS AND TRUSTEES by this Part, (ii) or cease to act as trustee:
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Provided that where such nominee company does not obtain authorisation to act as trustee under article 43, it shall be bound to ensure that all the rights of property under trusts and all other arrangements are transferred in the form required by law to a person authorised to act as trustee in terms of article 43 or that the provisions of article 43A are fully complied with, as the case may be.
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(16)Where upon the coming into force of this Part, a nominee company is performing both the functions of liquidator of offshore companies and also the functions of trustee of registered trusts, the provisions of subarticle (12) shall mutatis mutandis apply to such nominee company in respect of its functions of trustee and the provisions of subarticle (11)(a) shall mutatis mutandis apply to such nominee company in respect of its functions of liquidator, and the modification of its warrant as provided for in subarticle (11)(a) shall be required only in respect of any period following the lapse of two years from the coming into force of this Part, during which the nominee company continues to act as liquidator of offshore companies.
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(17)The Authority shall have the power to require such changes to the memorandum and articles of association of any licensed nominee or any nominee company applying for authorisation, including a change in name to the extent considered necessary, so as to more suitably reflect its status, provided that any such changes shall not affect the authorisation of the company to act as a trustee in terms of the principal Act as amended by this Part or the functions as liquidator of a nominee company under the applicable law.
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Nota bene: in furtherance of the above transitory provision, note is to be taken of regulation 1(2) and regulation 3 of the Trusts Act (Amendment of article 43(7)) Regulations, 2008 - Legal Notice 355 of 2008 - which state: \"1.(2) These regulations shall come into force on the 1st December, 2009 and shall apply to fees falling due on or after the said date. Nothing in these regulations shall be deemed to affect the liability in respect of any fees due under the Trusts Act prior to the coming into force of these regulations.\"; and \"3. In article 43(7) of the Act (the reference is to the Trusts Act before its amendment by Act XIII of 2004), for the words \"on the payment of a fee of Lm15\", there shall be substituted the words \"on the payment of a fee of €34.94 until 30th November 2009 and on the payment of a fee of €120 as from the 1st December, 2009\".\".
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T R U S T S A ND T R U S T E E S Amended by:
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XIV. 1989.13;
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XX. 1994.4.
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Substituted by:
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XIII. 2004.34.
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SCHEDULE (Articles 2 and 5A) CONVENTION ON THE LAW APPLICABLE TO TRUSTS AND ON THEIR RECOGNITION
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CHAPTER 1- SCOPE
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Article 1This Convention specifies the law applicable to trusts and governs their
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recognition.
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Article 2For the purposes of this Convention, the term \"trust\" refers to the legal
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relationship 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 beneficiary or for a specified purpose.
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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 upon 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.
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Article 3The Convention applies only to trusts created voluntarily and evidenced in
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writing.
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Article 4The Convention does not apply to preliminary issues relating to the validity of
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wills or of other acts by virtue of which assets are transferred to the trustee.
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Article 5The Convention does not apply to the extent that the law specified by Chapter II
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does not provide for trusts or the category of trusts involved.
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CHAPTER II - APPLICABLE LAW
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Article 6A trust shall be governed by the law chosen by the settlor. The choice must be
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express or be implied in the terms of the instrument creating or the writing evidencing the trust, interpreted, if necessary, in the light of the circumstances of the case.
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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.
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TRUSTS AND TRUSTEES
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Article 7Where no applicable law has been chosen, a trust shall be governed by the law
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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.
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Article 8The law specified by Article 6 or 7 shall govern the validity of the trust, its
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construction, its effects, and the administration of the trust.
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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 upon the duration of the trust, and upon 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.
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Article 9In applying this Chapter a severable aspect of the trust, particularly matters of
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administration, may be governed by a different law.
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Article 10The law applicable to the validity of the trust shall determine whether that law or
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the law governing a severable aspect of the trust may be replaced by another law.
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CHAPTER III – RECOGNITION
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Article 11A trust created in accordance with the law specified by the preceding Chapter
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shall be recognised 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 or 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;
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T R U S T S A ND T R U S T E E S (b) that the trust assets shall not form part of the trustee’s estate upon 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 trustee’s estate upon 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.
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Article 12Where the trustee desires to register assets, movable or immovable, or documents
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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.
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Article 14The Convention shall not prevent the application of rules of law more favourable
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to the recognition of trusts.
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CHAPTER IV - GENERAL CLAUSES
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Article 15The Convention does not prevent the application of provisions of the law
\n
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.
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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.
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Article 16The Convention does not prevent the application of those provisions of the law of
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the forum which must be applied even to international situations, irrespective of rules of conflict of laws.
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Article 17In the Convention the word \"law\" means the rules of law in force in a State other
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than its rules of conflict of laws.
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Article 18The provisions of the Convention may be disregarded when their application
\n
would be manifestly incompatible with public policy (ordre public).
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Article 22The Convention applies to trusts regardless of the date on which they were
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created.