Home | Databases | WorldLII | Search | Feedback Consolidated Acts of Samoa 2013

International Trusts Act 1988

SAMOA

INTERNATIONAL TRUSTS ACT 1988

Arrangement of Provisions

PART I
PRELIMINARY

1. Short title and commencement
2. Interpretation
3. Application of Act
   

PART II
LAWS APPLICABLE TO
INTERNATIONAL TRUSTS

4. Validation of international trust

5 - 10.Repealed

11. Presumption against avoidance of trusts
12. Charitable and Purpose Trusts
13. Investments
    

PART III
REGISTRATION OF INTERNATIONAL TRUSTS

14. Registrar
15. Repealed
16. Only registered international trusts entitled to benefits
17. Register of international trusts
18. Application for registration
19. Registration
20. Annual Certificate of registration
21. Repealed

22.Registered Office

23. Registration may be revoked without appeal
    

PART IV
PRIVILEGES AND EXEMPTIONS RELATING TO INTERNATIONAL TRUSTS

24. Exemption from taxation, duties, and returns
25. Banking business
26. Exemption from currency and exchange control
27. Secrecy
    

PART V
MISCELLANEOUS

28. Prohibited international trust activities

28A.Proceedings by or against an international trust

28B.Power of exemption

29. English the authentic text
30. General penalty for offences
31. Regulations
32. Procedure where none laid down
33. Trustee Act

Schedule

INTERNATIONAL TRUSTS ACT 1988

1988 No.9

AN ACTto provide for international trusts.

[Assent and commencement date: 17 February 1988]

PART I
PRELIMINARY

1. Short title and commencement – (1) This Act may be cited as the International Trusts Act 1988.
(2) This Act comes into force or any part or section thereof on such date as may be specified by the Head of State by Order.

2. Interpretation – In this Act, unless the context otherwise requires:

“Authority” means the Samoa Inter-national Finance Authority established under the Samoa International Finance Authority Act 2005;

“Central bank”means the Central Bank of Samoa established pursuant to the Central Bank of Samoa Act 1984;

“Court”means the Supreme Court;

“disposition”means the making or grant or any transfer, sale, gift, lease, licence, easement, profit, mortgage, charge, encumbrance, trust, or other disposition, whether absolute or limited, and whether legal or equitable, of or affecting property or any interest therein; and includes a contract to make any such disposition; and includes the disposal of an interest in or right over property by the exercise of a power of appointment, power of maintenance, power of advancement or other authority; and also includes the conferring or variation or surrender of such powers or authority;

“foreign company”means a foreign company registered under the International Companies Act 1988;

“instrument”means any deed, testamentary instrument, or document giving effect to a disposition or appointment;

“international company”means a company which is incorporated under the International Companies Act 1988;

“internationaltrust”means a trust which is registered under this Act and in respect of which:

(a) at least one of the trustees, donors or holders of a power of advancement is either:

(i) a trustee company; or

(ii) an international company; or

(iii) a foreign company registered under Part X of the International Companies Act 1988; and

(b) the beneficiaries are at all times non-resident;

“Minister”means the Minister of Finance;

“non-resident”has the same meaning as in the International Banking Act 2005;

“power of appointment”means an authority to dispose of any property, whether general or special, including:

(a) a power collateral or in gross;

(b) a power coupled with an interest, or a power appendant or appurtenant;

(c) a discretionary power to transfer, grant or create a beneficial interest in property with or without the furnishing of valuable consideration by the appointees;

(d) a power, the exercise of which by the donee is subject to the consent of a third party;

(e) a power independent of, or in defeasance of any existing estate or interest in the property which is the subject of the power; and

(f) a power of revocation and new appointment;

but does not include an Act of Parliament;

“prescribed”means prescribed by regulation or in the absence of such regulation as may be publicly notified by the Registrar;

“property”includes real and personal property, and any title, right, estate or interest in any property real or personal, and any debt, letter of credit, trade acceptance, banker's acceptance, documentary draft, forward exchange contract, loan collection advance, guarantee, and a thing in action, and any other right or interest;

“public notice”means a notice published in a newspaper circulating in Samoa, in Samoan and in English, conveying the general effect of a matter or a thing done or intended to be done; and “publicly notified” has a corresponding meaning;

“Registrar”means the Registrar of International Trusts and includes a Deputy Registrar;

“registered foreign company”means a foreign company registered pursuant to Part X of the International Companies Act 1988;

“representative trustee”is the trustee company, international company or foreign company registered under Part X of the International Companies Act 1988 which is the trustee of an international trust which has been authorised in writing by every other trustee of the trust to accept legal service and to sue and be sued in the name of each and every trustee;

“trust”means an equitable obligation under which a trustee is bound to deal with trust property for the benefit of the beneficiaries of the trust or for charitable or for other lawful purposes of the trust and includes:

(a) all dispositions or settlements of or in relation to trust property;

(b) powers in the nature of trusts or coupled with a trust;

(c) powers of appointment, whether testamentary or inter vivos;

(d) implied and constructive trusts;

(e) cases where the trustee has a beneficial interest in the trust property;

(f) the duties incidental to the office of personal representative, donee of a power, and fiduciary; and “trustee” has a corresponding meaning;

“trustee company”means a company registered as a trustee company under the provisions of the Trustee Companies Act 1988.

3. Application of Act – (1) This Act, except where otherwise expressly provided, applies to:

(a) international trusts constituted or created either on, before or after the commencement of this Act; and

(b) instruments registered under this Act whether they take effect on, before or after the commencement of this Act.
(2) This Act binds the Government, except in respect of dispositions of property made by the Government.
(3) The powers conferred by or under this Act on a trustee are in addition to the powers given by the instrument, if any, creating the trust; but the powers so conferred, unless otherwise stated, apply if and so far only as a contrary intention is not expressed in the instrument, if any, creating the trust, and have effect subject to the terms of that instrument.

PART II
LAWS APPLICABLE TO INTERNATIONAL TRUSTS

4. Validation of international trust – (1) Except as otherwise provided in this Act, the production of the register established and maintained under Part III or of a certified copy thereof is held in every Court of law or equity as evidence of the particulars therein set forth or endorsed thereon and of their being entered in the register, and is, unless the contrary is proved, conclusive evidence of the validity of the trust, disposition and power of appointment therein, any rule of law or equity and any rule of law or equity of the settlor's domicile or residence or place of incorporation to the contrary notwithstanding.
(2) No trust shall be validated hereunder by registration occasioned as follows:

(a) by fraud, or by fraudulent omission, or misrepresentation of any kind on the part of any person in registering the trust under this Act;

(b) by fraud, on the part of any person causing or procuring the disposition of the trust property;

(c) by fraud on the part of any person exercising a power of appointment;

(d) by the improper use of the seal of any corporation, company, Court, officer, or other person authorised or required by law to use any such seal;

(e) by fraud on the part of the settlor to defraud creditors of the settlor.

(a) the provisions of this Act;

(b) the English common law and equity in force in Samoa in so far as they are not excluded by this Act;

(c) if to do so would validate the trust instrument, disposition on appointment, the law of any foreign State—

(i) where the trust, instrument, disposition or appointment was executed;

(ii) where the trustees, or any one of them (if more than one), are normally resident or domiciled;

(iii) where the trust property is situated; or

(iv) where the settlor, beneficiaries or appointees (any one, group or all) are normally resident or domiciled.

5-10.(repealed by s4 of Act 1988,No.45.)

11. Presumption against avoidance of trusts – (1) Unless a trust contains an express power of revocation,the trust is taken to be irrevocable by the settlor and the settlor’s legal personal representatives despite that it is voluntary.
(2) Despite:

(a) any provision of the law of the settlor’s domicile or place of ordinary residence or place of incorporation; and

(a) that the trust is voluntary and without valuable consideration being given for the same, or is made on or for the benefit of the spouse or children of the settlor or any of them, –
an international trust shall not be void or voidable in the event of the settlor’s bankruptcy or liquidation or in any action or proceedings at the suit of creditors of the settlor unless it is proven to the satisfaction of the Court that the trust was made with the intent to defraud creditors of the settlor.
(3) For the purpose of this section, the onus of proof of the settlor’s intent to defraud the settlor’s creditors lies on those creditors.

12. Charitable and Purpose Trusts – (1) Despite any rule of law to the contrary, an international trust is taken to be charitable or for purposes which are charitable where it is a trust substantially for one or more of the following objects or purposes, namely:

(a) for the relief of poverty;

(b) for the advancement of education;

(c) for the advancement of religion;

(d) for other purposes beneficial to the community, notwithstanding that—

(i) the object or purposes may not be of a public nature or for the benefit of the public, but may be for the benefit of a section of the public or members of the public; or

(ii) it may also benefit privately one or more persons or objects or person within a class of persons or is liable to be defeated whether by the exercise of a power of appointment or disposition; or

(iii) the trustee has the power to defer the enjoyment of any charity or other beneficiary of the trust for any period not exceeding the perpetuity period applying or expressed to apply to the trust; and

(iv) the trust may be discretionary or contingent upon the happening of any event.

(2) Despite any rule of law or equity to the contrary a trust settled or established by a non-resident of Samoa shall not be void or voidable by virtue of the fact that the trust fund is held for a purpose or purposes, whether charitable or not:PROVIDED THATthe trust must vest in natural persons within the perpetuity period applying or expressed to apply to the trust; and any trust so created is enforceable by the settlor or his or her personal representatives or by the person or persons named in the instrument establishing the trust as the person or persons appointed to enforce the trust and the trust is enforceable at the instance of the person or persons so named notwithstanding that such person or persons are not beneficiaries under the trust.

13. Investments – (1) A trustee shall not invest any of the trust funds in the trustee’s hands other than in securities, assets or property authorised expressly or by necessary implication for the investment of the trust funds by and under the instrument by which the trust is established or created.
(2) Where the instrument by which the trust is established or created authorises or by necessary implication authorises the investment of trust funds in any investment authorised by the law of Samoa for the investment of trust funds the instrument is taken to authorise investment in such other investments as may be expressed to be trustee investments by regulations made under this Act.

PART III
REGISTRATION OF INTERNATIONAL TRUSTS

14. Registrar – (1) There shall be appointed, by the Authority and publicly notified, a Registrar of International Trusts.
(2) There shall also be appointed by the Authority such Deputy Registrars, and other officers as may be required.
(3) Anything authorised or required to be done by the Registrar under this Act may be authorised or done by any Deputy Registrar.
(4) The Registrar shall have and use a seal of office bearing the impression of the official crest of Samoa with the words “Registrar of International Trusts Samoa” encircling the crest; and every instrument bearing the imprint of such seal, and purporting to be signed or issued by a Registrar, or by his or her deputy, shall be received in evidence, and is taken to be signed or issued by or under the direction of the Registrar, without further proof, unless the contrary is shown.
(5) The office of Registrar may be held in conjunction with other offices, and the functions thereof may be exercised concurrently.

15. (repealed by section 4 of Act 1988, No.45)

16. Only registered international trusts entitled to benefits – No international trust is entitled to the privileges and exemptions under Part IV unless a valid current certificate of registration under this Part has been issued in respect of the trust.

17. Register of international trusts – The Registrar shall keep a register, whether in the form of a book or otherwise, and shall record thereon the particulars of international trusts.

18. Application for registration – (1) A person who desires to obtain the registration on an international trust under this Act shall make application to the Registrar in the prescribed form.
(2) An application shall be accompanied by:

(a) (repealed by s 7 of Act 1988, No.45)

(b) the prescribed fee payable to the Registrar;

(c) (repealed by s7 of Act 1988,No.45)

(d) a certificate by the trustee or, if more than one, by any one trustee, that the trust upon registration will be an international trust;

(e) a notice of the name of the trust and other particulars to be entered on the register;

(f) a notice of the office of the representative trustee to be entered on the register which office shall be the registered office of a trustee which is—

(i) a registered foreign company;

(ii) a trustee company; or

(iii) an international company.
(3) When an application lodged for registration with the Registrar is found not to be in order for registration the Registrar shall return the application and all other documents lodged in connection therewith to the person by whom they were lodged specifying the matter or matters which require rectification or which disqualify the trust from registration.
(4) Where any application is returned as provided in subsection (3), any fees paid to the Registrar in respect of that application is forfeited, unless any matter required to be rectified is so rectified or any disqualification is removed or overcome and the application is again lodged with the Registrar within a period of 2 months from the date of its return by the Registrar.

19. Registration – (1) Where the Registrar has accepted an application for registration of an international trust made under section 11, the Registrarshall enter into the register of international trusts, the name of the trust, the address of the registered office of the trust and the date of registration, whereupon the trust is taken to be registered.
(2) Upon registration of an international trust, the Registrar shall issue a certificate of registration in the prescribed form and shall forward such certificate to the representative trustee at the registered office of the international trust.
(3) A certificate of registration signed by and under the seal of the Registrar is conclusive evidence that all the requirements of this Act in respect of registration and other matters precedent and incidental thereto have been complied with and that the international trust referred to therein has been duly registered under this Act.
(4) A trustee of an international trust may file with the Registrar a copy of the trust instrument and of any amendment thereto duly certified in the manner prescribed and the Registrar, upon payment of the prescribed fee, shall register that copy trust instrument or copy amendment as a true copy and shall note on the register that a copy trust instrument or amendment of the trust instrument has been filed.
(5) The Authority has the right without assigning any reasons, to direct the Registrar not to register any particular trust or trusts.

20. Annual certificate of registration – (1) A certificate of registration issued under section 19 is valid for 1year from the date of registration.
(2) Application for renewal of registration may be made to the Registrar on the prescribed form within one month prior to the date of the expiry of the certificate of registration and, on payment of the prescribed fee, the Registrar shall issue a certificate of renewal of registration.
(3) Subject to section 28B, no application for renewal of registration made pursuant to subsection (2) shall be granted where the application is filed or the renewal fee is paid after the date of expiry of the last certificate of registration unless the Registrar is satisfied that the omission to apply to renew the registration or pay the renewal fee was inadvertent or unavoidable for good reasons in which event the Registrar may within one month after the date of expiry of the certificate and payment of the annual fee and the prescribed penalty, issue a renewal certificate of registration.
(4) A renewal of registration shall be valid for one year from the date of expiry of the last certificate of registration.

21. (repealed by s10 ofAct 1988,No.45)

22. Registered office – (1) An international trust shall maintain a registered office in Samoa which office shall be the registered office of the representative trustee.
(2) The address for service of any documents upon an international trust shall be the registered office of the trust.
(3) An international trust shall have its name displayed at its registered office in a conspicuous position and in letters easily legible.

23. Registration may be revoked without appeal – (1) Registration of an international trust may be revoked by the Registrar where:

(a) any trustee company, international company or registered foreign company ceases to be registered in Samoa;

(b) the trust fails to maintain a registered office in Samoa as required by section 22;

(c) any trustee of the trust has made a distribution, disposition, or otherwise conferred any benefit on any person other than a non-resident of Samoa as if that person were a beneficiary so entitled;

(d) the trust has been declared invalid by any decree, order, or judgement which is in force and has been in force for not less than 3 months;

(e) any trustee of the trust has been made bankrupt or convicted of any crime involving any dishonesty, in any country, or has been sentenced to a term of imprisonment.
(2) The Authority may at the request of the Registrar make an order directing an international trust to cease to maintain its registered office in Samoa in which event the registration of the international trust shall be revoked with effect from 14 days after the date of such order or such later date as may be specified in the order.
(3) Where registration is revoked under subsection (1) or (2), the trust shall cease to be entitled to the privileges and exemptions under Part IV; and the Registrar shall make an entry in the register noting that the registration of the trust has been revoked.
(4) On the revocation of registration of a trust, the representative trustee shall, on demand, deliver the outstanding certificate of registration to the Registrar (which shall be defaced or otherwise marked or destroyed), and remove the name plate or other display of the name of the international trust from its place of business.
(5) The Registrar shall give reasons for any decision under subsection (1) to the representative trustee.
(6) The Authority need not assign reasons for making an order under subsection (2) and in making such an order the Authority shall not be required to act judicially. An order made under subsection (2) shall be final.

PART IV
PRIVILEGES AND EXEMPTIONS RELATING TO
INTERNATIONAL TRUSTS

24. Exemption from taxation, duties and returns – (1) For the purposes of this section, an international trust shall include severally each trustee as trustee of the international trust and each of the beneficiaries as beneficiaries of the international trust.
(2) Despite anything contained in any other enactment:

(a) no income tax, stamp duty, nor any other direct or indirect tax or impost shall be levied in Samoa on the transactions, contracts, securities or other dealings nor upon the income, profits or gains of an international trust including interest, dividends or other earnings from any business conducted by an international trust.
(3) Despite anything contained in any enactment (other than this Act, the International Banking Act 2005, the International Companies Act 1988 and the Trustee Companies Act 1988) an international trust shall not be required to do the following:

(a) deposit any money in any public account;

(b) file any accounts, returns, reports or records;

(c) register with or be licensed by any authority.

25. Banking Business – All banking business carried out in Samoa under or in connection with an international trust in Samoa shall be carried out either through a trustee company or by an off-shore bank licensed under the Off-Shore Banking Act 1988 or a bank approved for that purpose by the Registrar and shall be exempt from taxation, stamp duties, currency and other exchange controls as provided in that Act.

26. Exemption from currency and exchange control – (1) No person shall transact any business under or in connection with an international trust, in the currency of Samoa, or by, for, or in respect of any person other than a non-resident of Samoa.
(2) A business transacted under or in connection with an international trust in compliance with the restrictions in subsection (1) shall be exempt from any currency and exchange control restrictions or regulations; and no foreign exchange levy shall be imposed or be payable in respect of such business.
(3) A person who contravenes subsection (1) commits an offence and is liable on conviction to a fine not exceeding 100 penalty units and, if, the offence is a continuing one, to a further fine not exceeding 5 penalty units for each day on which the transaction has continued to contravene subsection (1).

27. Secrecy – (1) Except where the provisions of this Act require and subject to subsection (2), it is an offence for a person to divulge or communicate to any other person information relating to the establishment, constitution, business undertaking or affairs of an international trust.
(2) All judicial proceedings, other than criminal proceedings relating to international trusts shall, unless ordered otherwise be heard in camera and no details of the proceedings shall be published by any person without leave of the Court or person presiding.
(3) A person who commits an offence under this section is liable upon conviction to a fine not exceeding 5penalty units or to imprisonment for a term not exceeding 5 years, or both.

PART V
MISCELLANEOUS

28. Prohibited international trust activities – (1) Trustees under an international trust shall not:

(a) use or operate under a name which—

(i) so closely resembles or is identical to the name of any company, firm, business house or other financial entity or institution whether within or outside Samoa as is likely to mislead or deceive;

(ii) is calculated to suggest falsely the patronage of or connection with some person or authority whether within Samoa or not; or

(iii) is calculated to suggest falsely that such trustee has a special status in relation to or derived from the Government of Samoa or has the official backing of or acts on behalf of the said Government or of any department or official thereof or is recognised in Samoa as a national or central bank;

(b) make any disposition or grant any power or settle any property on any person who is a resident of Samoa other than a company incorporated or registered under the International Companies Act 1988 or a trustee company registered under the Trustee Companies Act 1988;

(c) make any disposition or grant any power or settle any property in the currency of Samoa;

(d) engage in any advertising or soliciting of trust business within Samoa; or

(e) engage in any such activities as may be prescribed from time to time by regulations issued by the Head of State acting on the advice of the Authority.
(2) A person who contravenes this section commits an offence and is liable on conviction to a fine not exceeding 10 penalty units for each offence and where the offence is a continuing one, 10 penalty units for each day during which the offence continues.

28A. Proceedings by or against an international trust – Where any proceedings are instituted by or against an international trust it is sufficient to name the representative trustee entered on the register and it is not be necessary to join in the action any other trustee.

28B.Power of Exemption – (1) The Authority may, on its own initiative or pursuant to an application in writing lodged with the Registrar by an international trust or a trust, which if it were registered would be an international trust, exempt that international trust or trust from all or any of the provisions of this Act and any Regulations made thereunder and may impose such terms and conditions as the Registrar thinks fit as a condition under which that exemption is granted. An exemption so granted may be revoked or varied by the Authority at any time.
(2) In dealing with an application under this section, the Authority is not required to act judicially and the Authority’s decision shall in all cases be final.
(3) An exemption or condition imposed pursuant to subsection (1), takes effect from the date decided by the Authority in its discretion.

29. English the authentic text – (1) Adocument filed with the Registrar, and all records and accounts required to be kept under this Act shall be in the English language.
(2) Where a document is not in the English language it shall be accompanied by an authentic English translation; and if there is any conflict in meaning between the foreign language and the English versions, the English version prevails.

30. General penalty for offences – A person who commits an offence against this Act and any regulations issued hereunder for which no penalty is provided otherwise than in this section is liable upon conviction to a fine not exceeding 100 penalty units or to imprisonment for a term not exceeding 1 year or to both, and, if the offence is a continuing one, to a further fine not exceeding 5penalty units for each day during which the offence has continued.

31. Regulations – The Head of State, acting on the advice of Cabinet, may make regulations prescribing all matters and things required or authorised by this Act to be prescribed or provided, or which are necessary or convenient to be prescribed or provided, for the carrying out of or the giving full effect to the provisions of this Act and its due administration including all or any of the following particular purposes:

(a) prescribing forms to be used for the purposes of this Act and the matters to be specified in such forms;

(b) prescribing forms of application and other notices under this Act;

(c) fixing the fees and charges to be paid under this Act and the penalties for breaches thereunder, or delegating the power of fixing such fees charges and penalties to prescribed persons or bodies.

32. Procedure where none laid down – If any act or step is required or permitted to be done under this Act, and no form is prescribed or procedure laid down in this Act or Regulations for doing the same, application may be made to the Registrar for directions as to the manner in which the same may be done, and any act or step done or taken in accordance with his or her directions is valid performance of such act or step.

33. Trustee Act – Nothing in provisions of the Trustee Act 1975 applies to any international trust registered under this Act.

SCHEDULE
(Section 21)

INCIDENTAL OR CONSEQUENTIAL AMENDMENTS

SECTION AMENDMENTS

22(3) By inserting after the words “Every person” the words “who contravenes subsection (2) of this section” : by omitting all the words after the words “offence has continued”.

23(1)(e) By inserting after the words “trust has been” the words “made bankrupt or” : by inserting after the “crime” the words “involving any dishonesty” : by omitting the word “and” and substituting the word “or” by omitting all of the words after the word “imprisonment”.

25(1) By inserting after the expression “1988” the words “or a bank approved for that purpose by the Registrar”.

26(2) By omitting the word “prescriptions” and substituting the word “restrictions”.

27(3) By omitting the word “of” and substituting the words “not exceeding”.

28(1)(a)(iii) By omitting the word “licensee” and substituting the word “trustee”.

28(1)(d) By omitting the word “and” and substituting the word “or”.

28(1)(e) By omitting the words “such other” and substituting the words “engage in any such”.

28(2) By inserting after the word “offence” the words “against this Act” : by inserting after the expression $1000 the words “for each offence and where the offence is a continuing one, $1000”.

30. By omitting the word “on” and inserting the word “during”.

REVISION NOTES 2008 – 2013

This is the official version of this Act as at 31 December 2013.

This Act has been revised by the Legislative Drafting Division in 2008, 2009, 2010, 2011, 2012 and 2013 under the authority of the Attorney General given under the Revision and Publication of Laws Act 2008.

The following general revisions have been made:

(a) Amendments have been made to conform to modern drafting styles and to use modern language as applied in the laws of Samoa.
(b) Amendments have been made to up-date references to offices, officers and statutes.
(c) Insertion of the commencement date
(d) Other minor editing has been done in accordance with the lawful powers of the Attorney General.

• (i) “Every” and “any” changed to “a”
• (ii) “shall be” changed to “is” and “shall be deemed” changed to “is taken”
• (iii) “shall have” changed to “has”
• (iv) “shall be guilty” changed to “commits”
• (v) “notwithstanding” changed to despite”
• (vi) “pursuant to” changed to “under”
• (vii) “it shall be lawful” changed to “may”
• (viii) “it shall be the duty” changed to shall”
• (ix) Numbers in words changed to figures
• (x) “hereby” and “from time to time” (or “at any time” or “at all times”) removed
• (xi) “under the hand of” changed to “signed by”
  

There were no amendments made to this Act since the publication of the Consolidated and Revised Statutes of Samoa 2007.

This Act is administered by
the Samoa International Finance Authority.