Trusts and Trustees Act (Cap. 331), article 2

2. (1) In this Act, unless the c ontext otherwise requires - "approved jurisdiction" means a jurisdiction which has been approved by the Authority for the purposes of this Act; "approved person" means a person of good reputation possessing experience and qualifications in financial, fiduciary, accounti ng or legal services and approved by the Authority as being fit and p roper to carry out the duties of a trustee: Provided that where a person is not in possession of any qualifications in financial, fid uciary, accounting or legal ser vices, the Authority may, in exception al circumstances, consider the requirement to be satisfied if such person can prove that he ha s experience in the r elevant fields: Provided further that in the case of a company or body corporate, the majority of membe rs of the Board of Directors or the persons entrusted with the manag ement and administration thereo f, in addition to being fit and proper persons, must satisfy both the experience and qualifications criteria; Cap. 330. "the Authority" means the Malta Financial Services Authority established in terms of the Malta Financial Services Authority Act ; "beneficiary" means a person entitled to benefit under a trust or in whose favour a discretion to distribute property held in tru st may be exercised; "body corporate" means any enti ty having a legal personality distinct from that of its members; "breach of trust" has the meanin g assigned to it by article 4; "charitable purpose" means any charitable, social or philanthropic purpose, and without prejudice to the generality of the aforesaid, inclu des in particular: (a) the advancement of education, including physical education and sports; 2 CAP. 331.] TRUSTS AND TRUSTEES (b) the advancement of religion; (c) the advancement of health; (d) social and community advancement; (e) the advancement of culture, arts and national heritage; (f) the advancement of environmental protection and improvement, including the protection of animals; (g) the promotion of human rights, conflict resolution, democracy and reconciliation; (h) the promotion or protection of the interests of other social purpose organisations, including federations of such organisations; or (i) any other purpose as may be prescribed by the Minister by means of regul ations made by virtue of this Act; but does not include a political purpose. For the purposes of t his definition ''political purpose '' means the promotion of the interests of a political party or a political candidate, whether at local , national or international level, or to seek or oppose changes i n the law or governmental policy or dec isions except when such law or government policies or decisions directly concern the achieveme nt of charitable purposes; "close links" means a situation in which two or more persons ar e linked in any of the following ways: (a) by participation, in the form of direct ownership or by way of control, of twenty p er centum or more of the voting rights or capital of a body corporate; Cap. 386. (b) by control, through the relationship between a parent undertaking and a subsidiary undertaking as defined in article 2(2) of the Companies Act , o r a s i m i l a r relationship between any natural or legal person and an undertaking; or (c) to one and the same third person when: (i) such person is a member of the individual trustee’s family, including, but not limited to, the trustee’s spouse or partner, the trustee’s child or step-child, the trustee’s parents and other dependants of the trustee; (ii) such person is acting in the capacity of trustee of any trust, the beneficiaries of which include ( a) the trustee, the trustee’s dependants, including, but not limited to, the trustee’s spouse, children or step-children; or ( b) a body corporate with which one is associated in terms of ( a) and ( b) above; (iii) such person is acting as business partner of the trustee or of any person who, by virtue of sub- paragraphs (i) or (ii) above is connected with the trustee; TRUSTS AND TRUSTEES [CAP. 331. 3 "commercial transaction" means the following transactions and any transactions connect ed or ancillary thereto: (a) securities offerings, whet h e r t o t h e p u b l i c o r f o r private placement, portfo lio management and custody of investment instruments; (b) the securitisation of assets; (c) the grant of real or personal security interests including hypothecs, mortgages, privileges, pledges and guarantees; (d) collective investment schemes; (e) employee benefit or retirement schemes or arrangements; (f) syndicated loan agreements a n d o t h e r m u l t i - c r e d i t o r banking facilities; (g) insurance policies and the payment of proceeds thereunder; (h) timeshare and multi-property structures; (i) settling an asset on trust as security for a loan obtained for commercial purposes; and (j) such other commercial transactions as may be prescribed in a Notice i ssued by the Minister; "company" means a limited liability company duly formed and registered under any law for the time being in force in Malta, and includes a similar body corporate incorporated or registered abroad; "conflict of interest" means any situation in which the trustee ’s personal interest or the interes ts which the trustee owes to an y other person, can lead to or can be p erceived as leading to a situati on where such interests conflict with the fiduciary duties which the tru stee owes to the beneficiary; "the Convention” means the Hague Convention on the law applicable to trusts and on their recognition, which was adopte d by the Hague Conference on Private International Law on the 20 October 1984, and which came in to force on the 1 January 1992 s et out in all material parts in the Schedule; "corporate trustee" means a tru stee which is a legal person wherever incorporated; "Court" means the Civil Court in its voluntary jurisdiction unl ess otherwise indicated or unless the context refers to any court s eized of a matter in which case it is the court where the matter aris es; "foreign trust" means a trust the proper law of which is not th e law of Malta; "Malta’s international commitments" means Malta’s commitments, responsibilities and obligations arising out of membership of, or affiliation to, or relationship with, any international, global or regional organisations or grouping of countries or out of any treaty, convention or other internation al 4 CAP. 331.] TRUSTS AND TRUSTEES agreement, however called, wheth er bilateral or multilateral, t o which Malta is a party; "Maltese trust" means a trust whose proper law is the law of Malta; "Minister" means the Minister re sponsible for the regulation of Financial Services; Cap. 55. "Notary keeper" means the pers on entrusted to be a keeper of notarial acts in terms of the Notarial Profession and Notarial Archives Act ; "operating in or from Malta" means the existence of an office, branch, or other centre of profe ssional or commercial activitie s of a regular nature in Malta and does not include one or more unconn ected and sporadic acts; "person" means an individual or body corporate; "prescribed" means prescribed by regulations made under this Act; "property" means property of a ny kind or description, whether movable or immovable, personal or real, and wherever situated, and in relation to rights and interests whether vested, conting ent, voidable or future; "qualifying shareholding" means a direct or indirect holding in a company which represents ten per centum or more of the share ca pital or of the voting rights or which makes it possible to exercise a significant influence on the mana gement of the company in which that holding subsists, and "qualifying shareholder" shall be constru ed accordingly; "register" includes any kind of record; Cap. 345. "regulated market" shall have th e same meaning assigned to it b y the Financial Markets Act ; "remuneration" means any compensation or reward for acting as a trustee to be paid out of trus t property in accordance with t he terms of trust, or otherwise, other than the reimbursement of expenses of the trustee or the i ndemnification in favour of the trustee for expenses, liabilities and other claims; "resident in Malta" shall mean, in case of an individual, a per son whose habitual residence is in Malta and in the case of a body corporate, a body corporate having its registered address in Ma lta; "securities" includes shares, debe ntures, interest in investmen t funds or any other similar instrument issued by a company or other commercial partnership; "settlor" means the person who makes the trust and includes a person who provides trust property or makes a disposition on tr ust or to a trust; "terms of a trust" means the written or oral terms of a trust, expressed or implied, and any other terms made applicable by th e proper law; TRUSTS AND TRUSTEES [CAP. 331. 5 "trust" has the meaning describe d in article 3, and includes th e trust property, the rights, powers, duties, interests, relation ships and obligations under a trust; "trustee", in relation to property, means the person or persons holding the property or in whom the property is vested on terms of trust in accordance with the provisions of this Act or, a perso n that is otherwise deemed to be a trustee under this Act; "trust instrument" means the instrument whereby the trust is created and includes any instrume nt varying the terms of the tr ust and also a unilateral declaration of trust; "trust property" means the pr operty for the time being held on trust; "unilateral declaration of trust" has the meaning assigned to i t in terms of article 7(3); Cap. 370. Cap. 514. "unit trust" means any trust es tablished for the purpose of, or having the effect, or providing, for persons having funds avail able for investment, facilities for the participation by them as beneficiaries under the trust, in any profits or income arising from the acquisition, holding, management or disposal of any propert y whatsoever, being a collective i nvestment scheme as defined in the Investment Services Act or a retirement scheme or a retirement fund licensed under the Retirement Pensions Act set up as a unit trust; (2) Any reference in this Act to any law, or provision thereof, shall be construed as a reference to that law or provision as f rom time to time in force, and shall include a reference to any ena ctment replacing such law or provision, and to any subsidiary legislat ion made thereunder. (3) Words and expressions used in this Act with reference to any other law shall, so far as necessary to give effect to this Act and consistently with the provisions t hereof, have the same meaning as they have in the law with reference to which they are used in t his Act. (4) In this Act and in any regulations made thereunder, if there is any conflict between the English and Maltese text, the Engli sh text shall prevail. Amended by; XX. 1994.4. TRUSTS Meaning of trust. Amended by: XIII. 2004.4.