Consultation Paper No. 17 Consultation Paper No. 17 Trust Law
DIFC Law NO.[ ] OF 2005
This Draft Law is Published for Consultation Purposes only. the DFSA Reserves the Right to Amend this Draft at its Sole Discretion.
Trust Law of the Dubai International Financial Centre
Primary Purpose1. The primary purpose of the Trust Law is to provide a basic framework for the creation of trusts in the DIFC and the powers and duties of trustees.2. Most of the Law consists of default rules that apply only if the terms of the trust fail to address or insufficiently cover a particular issue. Pursuant to Article 10, a drafter is free to override a substantial majority of the Law's provisions. The exceptions are scheduled in Article 10(2). The Law, although comprehensive, does not legislate on every issue. Its provisions are supplemented by the common law of trusts and the principles of equity.3. The Law applies to express trusts created in writing.
Summary of the Law
1. Part 1 - General
This part provides articles of general application such as the power of the DFSA to make Rules for the purposes of this Law and limits the scope of the Law to express trusts and trusts created pursuant to a law or judgment that requires the trust to be administered in the manner of an express trust.
2. Part 2 - Choice of governing law place of administration
This part provides for the governing law of a trust and its place of administration. Article 14 allows for the migration of trusts to and from the DIFC. Articles 15, 16 and 17 deal with DIFC trusts in relation to foreign laws and heirship rights.
3. Part 3 - Judicial and non judicial proceedings
This part addresses selected issues involving judicial proceedings concerning trusts, the jurisdiction of the Court, the role of the Court in the administration of trusts and application and powers of the Court and the payment of costs.
4. Part 4 - Creation, validity and modification of a DIFC trust
This part specifies the requirements for the creation, validity and modification of a DIFC trust. Most of the requirements for creating, modifying and terminating trusts track traditional doctrine, including requirements of intent, capacity, Property and valid trust purpose. I have prescribed two types of trusts: charitable trusts and non-charitable or purpose trusts. Non charitable trusts or purpose trusts, the most common type, require the appointment of an enforcer to enforce the trust in relation to its non-charitable purposes and the purpose should be possible and sufficiently certain to allow the trust to be carried out. Charitable trusts are instead created to benefit the public at large. Articles 32 to 36 provide grounds on how a trust may be modified or terminated other than by its express terms and how trust Property should be distributed following termination.
5. Part 5 - Beneficiaries of a trust
This part describes who can be the beneficiary of a trust, what Property constitutes the interest of a beneficiary under a trust, and how a beneficiary can disclaim his interest.
6. Part 6 - Protective Trusts
This part addresses the validity of a protective trust and the rights of creditors to reach the beneficiary's interest. Certain Categories of claims are exempt from the protection such as claims for child support and alimony if supported by a Court order.
7. Part 7 - Office of trustee
This part contains a series of default rules dealing with the office of trustee, all of which may be modified by the terms of the trust. The role of a co-trustee is addressed, including the extent that one co-trustee may delegate to another and the extent to which one co-trustee can be held liable for actions of another trustee. Also covered are changes in trusteeship, including the circumstances when a vacancy must be filled, the procedure for resignation, the grounds for removal and the process for appointing a successor trustee. Finally, standards are provided for trustee compensation and reimbursement of expenses.
8. Part 7 - Part 8 - Duties and powers of trustees
This part states the fundamental duties of a trustee and enumerates the trustee's powers. In addition to a general power of a trustee in Article 59, a list of more specific powers is provided in Article 60 to give an indication of type of powers a trustee can exercise.
9. Part 9 - Liability of Trustees
This Part deals with the rights of persons dealing with a trustee. Articles 64 to 76 list the remedies for breach of trust, describe how Money damages are to be determined, provide a statute of limitations on claims against a trustee, and specify other defenses, including consent of a beneficiary and Recognition of and limitations on the effect of an exculpatory clause. Articles 72 and 74 address trustee relations with persons other than beneficiaries. The objective is to encourage third parties to engage in commercial transactions with trustees to the same extent as if the Property were not held in trust.
10. Part 10 - The Protector
Article 80 allows a settlor to include in the trust provisions which subject the exercise of the trustees' powers to the previous consent of the protector; Article 80(2) lists a series of powers which may be conferred on the protector such as the power to remove trustees or to exclude a beneficiary for the trust.
Submission of Comments
The draft Law is published for consultation purposes only. Please note, that although the draft is in near final form, the DFSA reserves the right to amend the draft at its sole discretion and as it is still "work in progress" it may therefore undergo further amendments prior to enactment.
Any persons wishing to submit comments should, where applicable, provide details of the organisations they represent. In addition, persons suggesting alternative approaches are encouraged to submit the proposed text of possible amendments that would be necessary to incorporate their suggestions.
Please note that the names of the commentators and the content of their submissions may be published on the DFSA Website and in other documents to be published by the DFSA. If you wish your name to be withheld from publication by the DFSA, please indicate this when you make your submission.
Any comments should be addressed to:
PO Box 75850
All comments should be provided in writing, on or before 14 September 2005.
or e-mailed to firstname.lastname@example.org
DUBAI Financial Services AUTHORITY
14 August 2005
DIFC LAW No.3 of 2005
Part 1: General
This Law may be cited as the "Trust Law 2005".
2. Legislative authority
This Law is made by the Ruler of Dubai.
3. Date of enactment
This Law applies in the jurisdiction of the Dubai International Financial Centre.
4. Scope of the Law
This Law applies to express trusts, charitable or non charitable, and trusts created pursuant to a law or judgment that requires the trust to be administered in the manner of an express trust.
5. Date of Enactment
This Law is enacted on the date specified in the Enactment Notice in respect of this Law.
This Law comes into force on the date specified in the Enactment Notice in respect of this Law.
Schedule 1 contains:(a) interpretative provisions which apply to this Law; and(b) a list of defined terms used in the Law.
8. Administration of this Law
This Law is administered by the DFSA.
9. The power of the DFSA to make Rules
The DFSA Board of Directors may make Rules for the purposes of this Law pursuant to the power conferred upon it under Article 23 of the Regulatory Law 2004.
10. Default and mandatory rules(1) Except as otherwise provided in the terms of the trust, this Law governs the duties and powers of a trustee, relations among trustees and the Rights and Interests of a beneficiary.(2) The terms of a trust prevail over any provision of this Law, except:(a) the requirements for creating a trust;(b) the duty of a trustee to act in good faith and in accordance with the purposes of the trust;(c) the requirement that a trust and its terms be for the benefit of its beneficiaries, and that the trust have a purpose that is lawful, not contrary to public policy in the DIFC, and possible to achieve;(d) the power of the Court to modify or terminate a trust in accordance with this Law;(e) the effect of a protective trust as provided in Part 6;(f) the power of the Court under Article 48 to adjust a trustee's compensation specified in the terms of the trust which is unreasonably low or high;(g) the effect of an exculpatory term under Article 70;(h) the rights under Articles 72, 74 and 76 of a Person other than a trustee or beneficiary;(i) periods of limitation for commencing a judicial proceeding;(j) the power of the Court to take such action and exercise such jurisdiction as may be necessary in the interests of justice; and(k) exclusive jurisdiction of the Court under Article 22.
11. Common Law and Principles of equity
The common law of trusts and principles of equity supplement this Law, except to the extent modified by this Law or any other DIFC Law.
Part 2: Choice of Governing Law; Place of Administration
12. Governing Law(1) The meaning and effect of the terms of a trust are determined by:(a) the law of the jurisdiction designated in the terms; or(b) in the absence of a designation in the terms of the trust, the law of the jurisdiction having the most significant relationship to the matter at issue.(2) A settlor may, whether or not he is resident in the DIFC, expressly declare in the trust Instrument that the laws of the DIFC shall be the governing law of the trust.(3) A term of the trust expressly declaring that the laws of the DIFC shall govern the trust is valid, effective and conclusive regardless of any other circumstance.
13. Provision for change of governing law(1) Where a term of a trust so provides, the governing law may be changed to or from the laws of the DIFC, in the manner prescribed by the terms of the trust, if:(a) in the case of a change to the laws of the DIFC, such change is recognised by the governing law previously in effect; or(b) in the case of a change from the laws of the DIFC, the new governing law would recognise the validity of the trust and the respective interest of the beneficiaries.(2) A change in the governing law shall not affect the legality or validity of, or render any Person liable for, anything done before the change.
14. Migration of trust to and from the DIFC(1) Subject to the provisions of this Law, the terms of the trust and its governing law, a trust established or created in accordance with the laws of any jurisdiction other than the DIFC may, if so authorised by the laws of that jurisdiction and the terms of the trust, be transferred to and become a trust under the laws of the DIFC.(2) Subject to the provisions of this Law and the terms of the trust, a DIFC trust validly created or established under this Law may be transferred to and become a trust under the laws of another jurisdiction if so authorised by the laws of that jurisdiction.
15. Matters determined by governing law(1) Subject to Article 15(2), all matters arising in regard to a trust which is for the time being governed by the laws of the DIFC or in regard to any disposition of Property upon the trust thereof shall be determined in accordance with the laws of the DIFC.(2) Article 15(1) shall:(a) not validate any disposition of Property which is neither owned by the settlor nor the subject of a power in that behalf vested in the settlor;(b) not validate any trust or disposition of immovable Property situated in a jurisdiction other than DIFC in which such trust or disposition is invalid according to the laws of such jurisdiction;(c) not validate any testamentary trust or disposition which is invalid according to the laws of the testator's domicile;(d) not affect the Recognition of foreign laws in determining whether the settlor is the owner of the settled Property or is the holder of a power to dispose of such property;(e) not affect the Recognition of the laws of its place of incorporation in relation to the capacity of a corporation;(f) not affect the Recognition of foreign laws prescribing generally, without reference to the existence or terms of the trust, the formalities for the disposition of Property.
16. Limitations in foreign law
Without limiting the generality of Article 15, no trust governed by the laws of the DIFC and no disposition of Property to be held on trust that is valid under the laws of the DIFC is void, voidable, liable to be set aside or defective in any manner by reference to a foreign law; nor is the capacity of any settlor to be questioned nor is the trustee or any beneficiary or any other Person to be subjected to any liability or deprived of any right, by reason that:(a) the laws of any foreign jurisdiction prohibit or do not recognise the concept of a trust; or(b) the trust or disposition avoids or defeats rights, claims or interest conferred by foreign law upon any Person by reason of a personal relationship to the settlor or by way of heirship rights or contravenes any rule of foreign law or any foreign, judicial or administrative order or action intended to recognise, protect, enforce or give affect to any such rights, claims or interest.
17. Heirship rights
An heirship right conferred by foreign law in relation to the Property of a living Person shall not be recognised as:(a) affecting the ownership of immovable Property in the DIFC and movable Property wherever it is situated for the purposes of Article 15(2)(a)and(b) or for any other purpose; or(b) constituting an obligation or liability for any purpose.
18. Foreign Judgments
A foreign judgment shall not be recognised or enforced or give rise to any estoppels insofar as it is inconsistent with Articles 16 and 17.
19. Principal Place of Administration(1) Without precluding other means for establishing a sufficient connection with the designated jurisdiction, terms of a trust designating the principal place of administration are valid and controlling if:(a) a trustee's principal place of business is located in or a trustee is resident of the designated jurisdiction;(b) all or part of the administration occurs in the designated jurisdiction.(2) A trustee is under a continuing duty to administer the trust at a place appropriate to its purposes, its administration, and the interests of the beneficiaries.(3) Without precluding the right of the Court to order, approve, or disapprove a transfer, the trustee, in furtherance of the duty prescribed in Article 19(2), may transfer the trust's principal place of administration to another jurisdiction outside the DIFC.(4) The trustee shall notify the beneficiaries of a proposed transfer of a trust's principal place of administration not less than 60 days before initiating the transfer. The manner which the notice should be submitted shall be specified in the Rules.(5) The authority of the trustee under this section to transfer a trust's principal place of administration terminates if a beneficiary notifies the trustee of an objection to the proposed transfer on or before the date specified in the notice.(6) In connection with a transfer of the trust's principal place of administration, the trustee may transfer some or all of the trust Property to a successor trustee designated in the terms of the trust.
Part 3: Judicial and Non Judicial Proceedings
20. Role of Court in administration of trust(1) The Court may intervene in the administration of a trust to the extent its jurisdiction is invoked by an interested Person or as provided by Law.(2) A trust is not subject to continuing judicial supervision unless ordered by the Court;(3) A judicial proceeding involving a trust may relate to any matter involving the trust's administration, including a request for instructions and an action to declare rights.
21. Non-judicial settlement agreements(1) For purposes of this Article, "interested persons" means persons whose consent would be required in order to achieve a binding settlement were the settlement to be approved by the Court.(2) Except as otherwise provided in Article 21(3), interested persons may enter into a binding non-judicial settlement agreement with respect to any matter involving a trust.(3) A non-judicial settlement agreement is valid only to the extent it does not violate a material purpose of the trust and includes terms and conditions that could be properly approved by the Court under this Law or other applicable law.(4) Matters that may be resolved by a non-judicial settlement agreement include:(a) the interpretation or construction of the terms of the trust;(b) the approval of a trustee's report or accounting;(c) direction to a trustee to refrain from performing a particular act or the grant to a trustee of any necessary or desirable power;(d) the resignation or appointment of a trustee and the determination of a trustee's compensation;(e) transfer of a trust's principal place of administration; and(f) liability of a trustee for an action relating to the trust.(5) Any interested Person may request the Court to approve a non-judicial settlement agreement and determine whether the agreement contains terms and conditions the Court could have properly approved.
22. Jurisdiction of the Court
The Court has jurisdiction where:(a) the trust is a DIFC trust;(b) a trustee of a foreign trust is resident in the DIFC;(c) any trust Property of a foreign trust is situated in the DIFC; or(d) administration of any trust Property of a foreign trust is carried out in the DIFC.
23. Application to and certain powers of the Court(1) A trustee may make an application to the Court for direction concerning the manner in which he may or should act in connexion with any matter concerning the trust and the Court may make such order, if any, as it thinks fit.(2) The Court may, if it thinks fit:(a) make an order concerning:(i) the execution or the administration of any trust;(ii) the trustee of any trust, including an order relating to the exercise of any power, discretion or duty of the trustee, the appointment or removal of a trustee, the Remuneration of a trustee, the submission of accounts, the conduct of the trustee and payments, whether payments into Court or otherwise;(iii) a beneficiary or any Person having a connexion with the trust; or(iv) the appointment or removal of an enforcer in relation to any non- charitable purposes of the trust;(b) make a declaration as to the validity or the enforceability of a trust; or(c) rescind or vary any order or declaration made under this Law, or make any new or further order or declaration.(3) Where the Court makes an order for the appointment of a trustee it may impose such conditions as it thinks fit, including conditions as to the vesting of trust Property.(4) Subject to any order of the Court, a trustee appointed under this Article shall have the same powers, discretions and duties and may act as if he had been originally appointed as a trustee.
24. Payment of costs
The costs and expenses of and incidental to an application to the Court under this Law shall be paid out of the trust Property or be borne and paid in such other manner or by such other Person as the Court may order.
Part 4: Creation, Validity and Modification of a DIFC Trust
25. Creation of a trust(1) A trust may be created by:(a) transfer of Property to another Person as trustee during the settlor's lifetime or by will or other disposition taking effect upon the settlor's death;(b) declaration by the owner of Property that the owner holds identifiable Property as trustee; or(c) exercise of a power of appointment in favour of a trustee.(2) Except as provided in Article 75(4), a trust shall come into existence by an Instrument in writing including a will or codicil.
26. Requirements for creation(1) Except as provided in Article 75(4), a trust is created if:(a) the settlor has the capacity to create a trust;(b) the settlor indicates an intention to create the trust;(c) the trust either:(i) has a definite beneficiary; or(ii) is a charitable trust, as provided for in Article 30;(d) the trustee has duties to perform; and(e) the same Person is not the sole trustee and sole beneficiary.(2) A beneficiary is definite if the beneficiary can be ascertained now or in the future.
27. Trust purposes(1) A trust may only be created to the extent its purposes are lawful, not contrary to the public interest in the DIFC, and possible to achieve.(2) A trust and its terms shall be for the benefit of its beneficiaries.
28. Duration of a trust
A trust may continue indefinitely or terminate in accordance with this Law or with the terms of the trust.
29. Validity and invalidity of a trust(1) Subject to Article 29(2) and (3), a trust shall be valid and enforceable in accordance with its terms.(2) A trust shall be invalid to the extent that:(a) it purports to do anything which is contrary to DIFC Law;(b) it is created for a purpose in relation to which there is no beneficiary, not being a charitable purpose, unless it complies with Article 31;(c) its creation was induced by fraud, duress, undue influence or misrepresentation;(d) the trust is immoral or contrary to public policy; or(e) the terms of the trust are so uncertain that its performance is rendered impossible.(3) Where a trust is created for two or more purposes of which some are lawful and others are unlawful:(a) if those purposes cannot be separated the trust shall be invalid;(b) where those purposes can be separated the Court may declare that the trust is valid as to the purposes which are lawful;
30. Charitable trust(1) A charitable trust may be created for the relief of poverty, the advancement of education or religion, the promotion of health or art, the protection of the environment, and any other purposes which are beneficial to the community.(2) If the terms of a charitable trust do not indicate a particular charitable purpose or beneficiary, the Court may select one or more charitable purposes or beneficiaries in accordance with the settlor's intention to the extent it can be ascertained.(3) The settlor of a charitable trust may maintain a proceeding to enforce the trust.
31. Non-charitable trusts or purpose trusts(1) A trust shall not be invalid by reason of Article 29(2)(b) if the terms of the trust provide for the appointment of an enforcer in relation to its non-charitable purposes.(2) Subject to Article 31(1), a trust may be declared by trust Instrument for a non-charitable purpose, including the purpose of holding or investing in Shares in a company or any other assets constituting the trust Property if:(a) the purpose is possible and sufficiently certain to allow the trust to be carried out;(b) the purpose is not contrary to public policy in the DIFC or unlawful under the laws of the DIFC;(c) the trust Instrument specifies the event upon the happening of which the trust terminates and provides for the disposition of surplus assets of the trust upon its termination.(3) It shall be the duty of an enforcer to enforce the trust in relation to its non-charitable purposes.(4) The appointment of a Person as enforcer of a trust in relation to its non-charitable purposes shall not have effect if he is also a trustee of the trust.(5) Except as permitted by this Law or expressly provided by the terms of the trust, or with the approval of the Court an enforcer shall not:(a) directly or indirectly profit from his appointment;(b) cause or permit any other Person to profit directly or indirectly from such appointment; or(c) on his own account enter into any Transaction with the trustees or relating to the trust Property which may result in profit.(6) Subject to Article 31(7), an enforcer may resign from his office by notice in writing delivered to the trustee.(7) A resignation given in order to facilitate a breach of trust shall be of no effect.
32. Variation and revocation of a trust(1) A trust may expressly provide that:(a) its terms are capable of variation; or(b) the trust itself or a power exercisable under the trust is revocable either in whole or in part.(2) Where a trust provides that the terms of the trust may be varied, such power to vary shall be without prejudice to the power vested in the Court by this Law for the variation of the terms of the trust.(3) No variation of the terms of the trust or revocation of a trust or a power exercisable under a trust shall prejudice anything lawfully done by a trustee in relation to a trust prior to his receiving a notice of such variation or revocation.(4) Subject to the terms of the trust, where a trust is revoked, either in whole or in part, the trustee shall hold the trust Property affected by the revocation for the settlor absolutely or if the settlor is dead, for the settlor's personal representative or estate.(5) The Court may vary the terms of a trust:(a) even if unambiguous, to conform the terms to the settlor's intention if it is provided by clear and convincing evidence that both the settlor's intent and the terms of the trust were affected by a mistake of fact or law, whether in expression or inducement;(b) if, because of circumstances not anticipated by the settlor, modification will further the purpose of the trust;(c) if continuation of the trust on its existing terms would be impracticable or wasteful or impair the trust's administration;(d) where trust Property is held for a charitable purpose, if the Court is satisfied that:(i) the variation is suitable or expedient and is consistent with the original intention of the settlor and the spirit of the gift; and(ii) any Person with a material interest in the trust has had an opportunity of being heard.
33. Failure or lapse of interest
Subject to the terms of a trust and to any order of the Court, the trust Property or interest under the trust shall be held by the trustee for the settlor absolutely or if the settlor is dead, for the settlor's personal representatives or estate where:(a) the interest in question lapses;(b) the trust Property is vested in a Person otherwise than for his sole benefit but the trusts upon which he is to hold the Property are not declared or communicated to him;(c) the trust terminates otherwise than in pursuance of Article 34(1)(f).
34. Termination of a trust(1) Without prejudice to the powers of the Court under this Law a trust terminates:(a) if the trust is revoked or expires pursuant to its terms;(b) if no purpose of the trust remains to be achieved;(c) where the trust Property or interest under the trust held by a trustee for a charitable purpose has ceased to exist or is no longer applicable;(d) if the purposes of the trust have become unlawful, or impossible to achieve;(e) if there is no beneficiary or Person who can become a beneficiary in accordance with the terms of the trust; or(f) upon consent of all the beneficiaries in existence who have been ascertained and none of whom is a minor or a Person under a legal disability.(2) The Court may terminate a trust:(a) because of circumstances not anticipated by the settlor, if termination will further the purposes of the trust; or(b) if the value of the trust Property is insufficient to justify the cost of administration.(3) An application to the Court under this Article may be made by a trustee or beneficiary as the case may be.
35. Distribution of property(1) Without prejudice to the powers of the Court under Article 35(3), on the termination of the trust the trustee shall distribute the trust Property to the persons entitled thereto within a reasonable time and in accordance with the terms of the trust.(2) The trustee may retain sufficient assets to make reasonable provision for liabilities, whether existing, future, contingent or otherwise, before distributing the trust Property under Article 35(1).(3) The Court may, on the termination of a trust or at any time thereafter, upon an application made by a trustee or any beneficiary as the case may be:(a) require the trustee to distribute the trust property;(b) direct the trustee not to distribute the trust property; or(c) make such other order as it thinks fit.
36. Managing trust Property following termination(1) On termination of a trust the Property shall be distributed by the trustee within a reasonable time in accordance with the terms of the trust to the persons entitled thereto.(2) Where a trust terminates in accordance with Article 34(1)(c), the Property shall be held for such other purpose as the Court may declare to be consistent with the original intention of the settlor.
Part 5: The Beneficiaries of a Trust
37. Beneficiaries of a trust(1) A beneficiary shall be:(a) identifiable by name; or(b) ascertainable by reference to:(i) a class; or(ii) a relationship to some Person whether or not living at the time of the creation of the trust or at the time which under the terms of the trust is the time by reference to which Members of a Class are to be determined.(2) The terms of a trust may provide for the addition of a Person as a beneficiary or the exclusion of a beneficiary from benefit.
38. Disclaimer(1) A beneficiary may disclaim his whole interest.(2) A disclaimer made under Article 38(1) shall be in writing and shall be irrevocable.(3) Subject to the terms of a trust, a beneficiary under a trust may disclaim part of his interest, whether or not he has received some benefit from his interest.(4) A disclaimer made under Article 38(3) may, subject to the terms of the trust, be revocable and it shall be exercisable in the manner and under the circumstances so expressed.
39. Interest of beneficiary and dealings thereof(1) Notwithstanding that the trust Property of a trust may include immovable Property, the interest of a beneficiary of a trust shall consist of movable Property only.(2) Where the terms of the trust so provide, a beneficiary may, by Instrument in writing, sell, Charge, transfer or otherwise deal with his interest in any manner.
Part 6: Protective Trusts and Creditors' Claims
40. Protective Trusts(1) The terms of a trust may make the interest of the beneficiary liable to termination.(2) Without prejudice to the generality of Article 40(1), the terms of a trust may make the interest of a beneficiary in the income or capital of the trust Property subject to:(a) a restriction on alienation or disposal;(b) a diminution or termination in the event of the beneficiary becoming bankrupt or any of his or her Property becoming liable to sequestration for the benefit of his or her creditors.(3) A trust under which the interest of a beneficiary is subject to restriction, diminution or termination under Article 40(2) is a protective trust.(4) A provision in the terms of a trust requiring the interest of a beneficiary in trust Property to be held upon a protective trust shall be construed as a requirement that the interest of the beneficiary be subject to restriction, diminution or termination as mentioned in Article 40(2).(5) Even if a trust contains a protective provision, a beneficiary's child, spouse, or former spouse who has a judgment or Court order against the beneficiary for support or maintenance, or a judgment creditor who has provided services for the protection of a beneficiary's interest in the trust, may obtain from the Court an order attaching present or future distributions to or for the benefit of the beneficiary.
41. Creditors claims in relation to a discretionary trust(1) In the case of a discretionary trust, whether or not such trust contains a protective provision, a creditor of a beneficiary may not compel a distribution that is subject to the trustee's discretion, even if:(a) the discretion is expressed in the form of a standard of distribution; or(b) the trustee has abused the discretion.(2) To the extent a trustee has not complied with a standard of distribution or has abused a discretion:(a) a distribution may be ordered by the Court to satisfy a judgement or Court order against the beneficiary for support or maintenance of the beneficiary's child, spouse or former spouse; and(b) the Court shall direct the trustee to pay to the child, spouse, or former spouse such amount as is equitable under the circumstances but not more than the amount the trustee would have been required to distribute to or for the benefit of the beneficiary had the trustee complied with the standard or not abused the discretion.
Part 7: Office of Trustee
42. Accepting or declining trusteeship(1) Except as otherwise provided in Article 42(3) a Person designated as trustee accepts the trusteeship:(a) by substantially complying with a method of acceptance provided in the terms of the trust; or(b) if the terms of the trust do not provide a method or the method provided in the terms is not expressly made exclusive, by accepting delivery of the trust Property, exercising powers or performing duties as trustee, or otherwise indicating acceptance of the trusteeship.(2) A Person designated as trustee who has not yet accepted the trusteeship may decline the trusteeship. A designated trustee who does not accept the trusteeship within a reasonable amount of time after knowing of the designation is deemed to have rejected the trusteeship.(3) A Person designated as a trustee, without accepting the trusteeship, may:(a) act to preserve the trust Property if, within a reasonable time after acting, he sends a rejection of the trusteeship to the settlor or, if the settlor is dead or lacks capacity, to a named beneficiary.(b) inspect or investigate trust Property to determine potential liability under any other law or for any other purpose.(4) A Person who knowingly does any act or thing in relation to the trust Property consistent with the status of a trustee of that Property shall be deemed to have accepted appointment as a trustee, but he shall not be remunerated for acting in such capacity as provided in Article 48, unless the trustee appointed under the terms of the trust otherwise agrees.
43. Number of trustees(1) Subject to the terms of the trust, the number of trustees shall not be less than two, unless only one trustee was originally appointed.(2) Where there is no trustee or less than the number required in Article 43(1), a trust shall not fail on that account.(3) Subject to the terms of the trust, where the number of the trustees falls below the minimum number required under Article 43(1), the required number of new trustees shall be appointed and until such minimum number is reached the surviving or continuing trustees shall act only for the purpose of preserving the trust Property.
44. Appointment out of Court of a new trustee(1) Where the terms of a trust contain no provision for the appointment of a new or additional trustee, the trustee for the time being may appoint a new trustee.(2) Subject to the terms of the trust, a trustee appointed under Article 44(1) shall have the same powers, discretions and duties and may act as if he had been originally appointed a trustee.(3) A trustee having power to appoint a new trustee who fails to exercise such power may be removed from office by the Court.
45. Resignation of trustee(1) A trustee, not being a sole trustee, may resign his office by:(a) giving at least 30 days notice in writing to the beneficiaries, the settlor, if living, and all his co-trustees. Such resignation shall take effect on delivery of notice1 ; or(b) with the approval of the Court.(2) A resignation,(a) given in order to facilitate a breach of trust; or(b) which would result in there being no trustee or fewer than the number of trustees required under Article 43(1),shall have no effect.
46. Removal of trustee by Court or under the terms of a trust(1) The settlor, a cotrustee, or a beneficiary may request the Court to remove a trustee, or a trustee may be removed by the Court on its own initiative.(2) The Court may remove a trustee if:(a) the trustee has committed a serious breach of trust;(b) lack of cooperation among co-trustees substantially impairs the administration of the trust;(c) because of unfitness, unwillingness, or persistent failure of the trustee to administer the trust, the Court determines that removal of the trustee best serves the interests of the beneficiaries; or(d) there has been a substantial change of circumstances or removal is requested by all of the beneficiaries, the Court finds that removal of the trustee best serves the interests of all the beneficiaries and is not inconsistent with a material purpose of the trust, and a suitable co-trustee or successor trustee is available.(3) Pending a final decision on a request to remove a trustee, or in lieu of or in addition to removing a trustee, the Court may order an appropriate relief under Article 64.(4) A trustee shall cease to be a trustee of the trust immediately upon the coming into effect of a provision in the terms of a trust under which he is removed from office or otherwise ceases to hold his office.
47. Delivery of Property by a former trustee(1) Unless a co-trustee remains in office or the Court otherwise orders, and until the trust Property is delivered to a successor trustee or other Person entitled to it, a trustee who has resigned or been removed has the duties of a trustee and the powers necessary to protect the Property.(2) A trustee who has resigned or been removed shall proceed expeditiously to deliver the trust Property within the trustee's possession to the co-trustee, successor trustee or other Person entitled to it.
48. Compensation of a trustee(1) If the terms of a trust do not specify the trustee's compensation a trustee is entitled to compensation that is reasonable under the circumstances.(2) If the terms of a trust specify the trustee's compensation, the trustee is entitled to be compensated as specified, but the Court may allow more or less compensation if:(a) the duties of the trustee are substantially different from those contemplated when the trust was created; or(b) the compensation specified by the terms of the trust would be unreasonably low or high.
49. Reimbursement of expenses
A trustee may reimburse himself out of the trust Property for or pay out of the trust all expenses and liabilities properly incurred in connection with the administration of the trust.
1 This article rejects the common law rule that a trustee may resign only with permission of the Court. However 30(2) allows the trustee to resign with the approval of the Court.
Part 8: Duties and Powers of Trustees
Chapter 1: Duties of trustees
50. Duty to administer a trust(1) Upon acceptance of a trusteeship, the trustee shall in the execution of his duties and in the exercise of his powers and discretions:(a) act with due diligence as would a prudent Person to the best of his ability and skill; and(b) observe the utmost good faith;in accordance with the terms and purposes of the trust and this Law.(2) A trustee shall administer the trust solely in the interest of the beneficiaries.(3) A sale, encumbrance, or other Transaction involving the Investment or management of trust Property entered into by the trustee for the trustee's own personal account or which is otherwise affected by a conflict between the trustee's fiduciary and personal interests is voidable by a beneficiary affected by the Transaction unless:(a) the Transaction was authorised by the terms of the trust;(b) the Transaction was approved by the Court;(c) the beneficiary did not commence judicial proceedings within the time allowed by Article 67; or(d) the beneficiary consented to the trustee's conduct or ratified the transaction
51. Duties of trustees(1) Subject to the terms of the trust, a trustee shall:(a) so far as is reasonably practical preserve the value of the trust property; and(b) so far as is reasonably practical enhance the value of the trust Property.(2) Except with the approval of the Court or as permitted by this Law or expressly provided by the terms of the trust, a trustee shall not:(a) directly or indirectly profit from his trusteeship;(b) cause or permit any other Person to profit directly or indirectly from such trusteeship; or(c) on his own account enter into any Transaction with the trustees or relating to the trust Property which may result in such profit.(3) A trustee shall keep accurate accounts and records of his trusteeship.(4) A trustee shall keep trust Property separate from his personal Property and separately identifiable from any other Property of which he is a trustee.(5) A trustee of a trust for non-charitable purposes shall, at any time when there is no enforcer in relation to them, take such steps as may be necessary to secure the appointment of a new enforcer.(6) Where the trustee of a trust for non-charitable purposes has reason to believe that the enforcer in relation to such purposes is unwilling or refuses to act, or is unfit to act or incapable of acting, he shall apply to the Court for the removal of the enforcer and the appointment of a replacement.
52. Duties of co-trustees to act together(1) Subject to the terms of the trust, where there is more than one trustee all the trustees shall join in performing the trust.(2) Subject to Article 52(3), where there is more than one trustee no power or discretion given to the trustees shall be exercised unless all the trustees agree on its exercise.(3) The terms of a trust may empower trustees to act by a majority but a trustee who dissents from a decision of the majority of the trustees may require his dissent to be recorded in writing.
53. Impartiality of a trustee
If a trust has two or more beneficiaries, the trustee shall act impartially in investing, managing, and distributing the trust Property giving due regard to the beneficiaries' respective interests.
54. Cost of administration
In administering a trust, the trustee may incur only costs that are reasonable in relation to the trust Property, the purposes of the trust and the skills of the trustee.
55. Enforcement and defence claims
A trustee shall take reasonable steps to enforce claims of the trust and to defend claims against the trust.
56. Collecting trust property
A trustee shall take reasonable steps to compel a former trustee or other Person to deliver trust Property to the trustee, and to redress a breach of trust known to the trustee to have been committed by a former trustee.
57. Duty to inform and report
A trustee shall keep the beneficiaries of the trust reasonably informed about the administration of the trust and of all material facts necessary for them to protect their interest. Unless unreasonable under the circumstances, a trustee shall promptly respond to a beneficiary's request for information Related to the administration of the trust.
58. Duty to inform beneficiaries of their interest(1) Subject to Article 58(2), a trustee shall take all reasonable steps to inform each beneficiary who has, but may not be aware of having, a vested interest under the trust.(2) Where a beneficiary entitled to information under Article 58(1) is a minor or mentally incapacitated, the trustee shall provide such information to the parents or duly appointed legal guardians, or other legal representative as the case may be, provided it is in the best interest of the beneficiary to do so.
Chapter 2: General powers of trustees
59. Powers of trustee(1) Subject to the terms and duties under this Law, a trustee shall in relation to the trust Property have:(a) all the same powers as a natural person;(b) any other powers appropriate to achieve the proper Investment, management, and distribution of trust property; and(c) any other powers conferred by this Law.(2) A trustee shall exercise his powers only in the interest of the beneficiaries and in accordance with the terms of the trust.(3) The terms of a trust may require a trustee to obtain the consent of some other Person before exercising a power or discretion.(4) A Person who consents as provided in Article 59(3) shall not by virtue of doing so be deemed to be a trustee.(5) Subject to the terms of a trust, a trustee may, without the consent of any beneficiary, appropriate trust Property in or towards satisfaction of the interest of a beneficiary in such matter and in accordance with such valuation as he thinks fit.
60. Specific powers of trustees
Without limiting the generality of Article 59, a trustee may:(1) collect trust Property and accept or reject additions to the trust Property from a settlor or any other person;(2) acquire or sell Property, for cash or on credit, at public or private sale;(3) Exchange, partition, or otherwise change the character of trust property;(4) Deposit trust Money in an account in a regulated Financial Services institution;(5) borrow Money, with or without Security, and mortgage or pledge trust Property for a period within or extending beyond the duration of the trust;(6) where the terms of the trust so permit, accumulate for a period all or part of the income of the trust;(7) where the terms of a trust so permit, exercise a discretion in relation to the manner in which and to whom trust Property is distributed;(8) with respect to an interest in a proprietorship, Partnership, limited liability company, business trust, corporation, or other form of business or enterprise, continue the business or other enterprise and take any action that may be taken by shareholders, Members, or Property owners, including merging, dissolving, or otherwise changing the form of business organisation or contributing additional capital;(9) with respect to stocks or other Securities, exercise the rights of an absolute owner, including the right to:(a) vote, or give proxies to vote, with or without power of substitution, or enter into or continue a voting trust agreement;(b) hold a Security in the name of a nominee or in other form without disclosure of the trust so that title may pass by delivery;(c) pay calls, assessments, and other sums chargeable or accruing against the Securities, and sell or exercise stock subscription or conversion rights; and(d) Deposit the Securities with a depositary or other regulated Financial Services institution;(10) with respect to an interest in immovable Property, construct, or make ordinary or extraordinary repairs to, alterations to, or improvements in, buildings or other structures, demolish improvements, raze existing or erect new party walls or buildings, subdivide or develop land, dedicate land to public use or grant public or private easements, and make or vacate plots and adjust boundaries;(11) enter into a lease for any purpose as lessor or lessee, including a lease or other arrangement for exploration and removal of natural resources, with or without the option to purchase or renew, for a period within or extending beyond the duration of the trust;(12) grant an option involving a sale, lease, or other disposition of trust Property or acquire an option for the acquisition of Property, including an option exercisable beyond the duration of the trust, and exercise an option so acquired;(13) insure the Property of the trust against damage or loss and insure the trustee, the trustee's agents, and beneficiaries against liability arising from the administration of the trust;(14) abandon or decline to administer Property of no value or of insufficient value to justify its collection or continued administration;(15) pay or contest any claim, settle a claim by or against the trust, and release, in whole or in part, a claim belonging to the trust;(16) pay assessments, compensation of the trustee and of Employees and agents of the trust, and other expenses incurred in the administration of the trust;(17) select a mode of payment under any Employee benefit or retirement plan, annuity, or life insurance payable to the trustee, exercise rights thereunder, including exercise of the right to indemnification for expenses and against liabilities, and take appropriate action to collect the proceeds;(18) make loans out of trust Property, including loans to a beneficiary on terms and conditions the trustee considers to be fair and reasonable under the circumstances, and the trustee has a lien on future distributions for repayment of those loans;(19) pledge trust Property to guarantee loans made by others to the beneficiary;(20) appoint a trustee to act in another jurisdiction with respect to trust Property located in the other jurisdiction, confer upon the appointed trustee all of the powers and duties of the appointing trustee, require that the appointed trustee furnish Security, and remove any trustee so appointed;(21) pay an amount distributable to a beneficiary who is under a legal disability or who the trustee reasonably believes is incapacitated, by paying it directly to the beneficiary or applying it for the beneficiary's benefit, or by:(a) paying it to the beneficiary's guardian;(b) if the trustee does not know of a guardian, or custodial trustee, paying it to an adult relative or other Person having legal or physical care or custody of the beneficiary, to be expended on the beneficiary's behalf; or(c) managing it as a separate fund on the beneficiary's behalf, subject to the beneficiary's continuing right to withdraw the distribution;(22) on distribution of trust Property or the division or termination of a trust, make distributions in divided or undivided interests, allocate particular assets in proportionate or disproportionate Shares, value the trust Property for those purposes, and adjust for resulting differences in valuation;(23) resolve a dispute concerning the interpretation of the trust or its administration by mediation, arbitration, or other procedure for alternative dispute resolution;(24) prosecute or defend an action, claim, or judicial proceeding in any jurisdiction to protect trust Property and the trustee in the performance of the trustee's duties;(25) sign and deliver contracts and other Instruments that are useful to achieve or facilitate the exercise of the trustee's powers; and(26) on termination of the trust, exercise the powers appropriate to wind up the administration of the trust and distribute the trust Property to the persons entitled to it.
61. Delegation by a trustee(1) A trustee shall not delegate his powers unless permitted to do so by this Law or by the terms of the trust.(2) Subject to Article 61(1), a trustee may delegate duties and powers that a prudent trustee of comparable skills could properly delegate under the circumstances. The trustee shall exercise reasonable care, skill, and caution in:(a) selecting a competent and qualified agent;(b) establishing the scope and terms of the delegation, consistent with the purposes and terms of the trust; and(c) periodically reviewing the agent's actions in order to monitor the agent's performance and compliance with the terms of the delegation(3) In performing a delegated function, an agent owes a duty to the trust to exercise reasonable care to comply with the terms of the delegation.(4) A trustee who complies with Article 61(1) is not liable to the beneficiaries or to the trust for an action of the agent to whom the function was delegated.(5) For the purposes of this Article an "agent" may include Investment managers, accountants, lawyers, bankers, brokers, custodians, Investment advisers, nominees, Property agents, solicitors and other professional agents or persons to act in relation to any of the affairs of the trust or to hold any of the trust Property.(6) A trustee may authorise a Person referred to in Article 61(5) to retain any Commission or other payment usually payable in relation to any Transaction.
62. Combination and division of trusts
After notice to the beneficiaries, a trustee may combine two or more trusts into a single trust or divide a trust into two or more separate trusts, if the result does not impair rights of any beneficiaries or adversely affect achievement of the purposes of the trusts.
Part 9: Liability of Trustees and Rights of Persons Dealing with a Trustee
63. Liability for breach of trust(1) A violation by a trustee of a duty the trustee owes to a beneficiary is a breach of trust.(2) A trustee who is liable for a breach of trust shall be liable to the beneficiaries for:(a) the loss or depreciation in value of the trust Property resulting from such breach; and(b) the profit, if any, which would have accrued to the trust Property if there had been no such breach.(3) Where there are two or more breaches of trust, a trustee shall not set off a gain from one breach of trust against the loss resulting from another breach of trust.(4) A trustee shall not be liable for a breach of trust committed prior to his appointment, if such breach of trust was committed by some other Person.(5) A trustee shall not be liable for a breach of trust committed by a co-trustee unless:(a) he becomes aware or ought to have become aware of the Commission of such breach or of the intention of his co-trustee to commit a breach of trust; and(b) he actively conceals such breach or such intention of fails within a reasonable time to take proper steps to protect or restore the trust Property or prevent such breach.(6) A beneficiary may:(a) relieve a trustee of liability to him for a breach of trust; or(b) indemnify a trustee against liability for a breach of trust.(7) Article 63(6) shall not apply unless the beneficiary:(a) has legal capacity;(b) has full knowledge of all material facts; and(c) is not improperly induced by the trustee to take action under Article 63(6).(8) Where two or more trustees are liable in respect of a breach of trust, they shall be liable jointly and severally.(9) A trustee who becomes aware of a breach of trust under Article 63(3) shall take all reasonable steps to have such breach remedied.(10) Nothing in the terms of a trust shall relieve, release, or exonerate a trustee from liability for breach of trust arising from his own fraud, wilful misconduct or gross negligence.
64. Remedies for breach of trust(1) To remedy a breach of trust that has occurred or may occur, the Court may:(a) compel the trustee to perform the trustee's duties;(b) restrain the trustee from committing a breach of trust;(c) compel the trustee to redress a breach of trust by paying Money, restoring Property, or other means;(d) order a trustee to account;(e) appoint a special fiduciary to take possession of the trust Property and administer the trust;(f) suspend the trustee;(g) remove the trustee as provided in Article 46;(h) reduce or deny compensation to the trustee;(i) subject to Article 74, invalid an act of the trustee, impose a lien or a constructive trust on trust Property, or trace trust Property wrongfully disposed of and recover the Property or its proceeds; or(j) order any other appropriate relief.
65. Damages in absence of a breach(1) A trustee is accountable to an affected beneficiary for any profit made by the trustee arising from the administration of the trust, even absent a breach of trust.(2) Absent a breach of trust, a trustee is not liable to a beneficiary for a loss or depreciation in the value of trust Property or for not having made a profit.
66. Legal Fees and costs
In a judicial proceeding involving the administration of a trust, the Court, as justice and equity may require, may award costs and expenses, including reasonable lawyers' Fees, to any party, to be paid by another party or from the trust that is the subject of the controversy.
67. Limitation of action against trustee(1) A beneficiary may not commence a proceeding against a trustee for breach of trust more than one year after the date the beneficiary or a representative of the beneficiary was sent a report that adequately disclosed the existence of a potential claim for breach of trust and informed the beneficiary of the time allowed for commencing a proceeding.(2) A report adequately discloses the existence of a potential claim for breach of trust if it provides sufficient information so that the beneficiary or representative knows of the potential claim or should have inquired into its existence.(3) If Article 67(1) does not apply, a judicial proceeding by a beneficiary against a trustee for breach of trust shall be commenced within five years after the first to occur of:(a) the removal, resignation, or death of the trustee;(b) the termination of the beneficiary's interest in the trust; or(c) the termination of the trust.
68. Reliance on trust instrument
A trustee who acts in reasonable reliance on the terms of the trust as expressed in the trust Instrument is not liable to a beneficiary for a breach of trust to the extent the breach resulted from the reliance.
69. Event affecting administration and distribution
If the happening of an event, including marriage, divorce, performance of educational requirements, or death, affects the administration or distribution of a trust, a trustee who has exercised reasonable care to ascertain the happening of the event is not liable for a loss resulting from the trustee's lack of knowledge.
70. Exculpation of trustee(1) A term of a trust relieving a trustee of liability for breach of trust is unenforceable to the extent that it:(a) relieves the trustee of liability for breach of trust committed in bad faith or with reckless indifference to the purposes of the trust or the interests of the beneficiaries; or(b) was inserted as the result of an abuse by the trustee of a fiduciary or confidential relationship to the settlor.(2) An exculpatory term drafted or caused to be drafted by the trustee is invalid as an abuse of a fiduciary or confidential relationship unless the trustee proves that the exculpatory term is fair under the circumstances and that its existence and contents were adequately communicated to the settlor.
71. Beneficiary's consent, release or ratification
A trustee is not liable to a beneficiary for breach of trust if the beneficiary, consented to the conduct constituting the breach, released the trustee from liability for the breach, or ratified the Transaction constituting the breach, unless:(a) the consent, release, or ratification of the beneficiary was induced by improper conduct of the trustee; or(b) at the time of the consent, release, or ratification, the beneficiary did not know of the beneficiary's rights or of the material facts relating to the breach.
72. Limitation on personal liability of trustee(1) Except as otherwise provided in the contract, a trustee is not personally liable on a contract properly entered into in the trustee's fiduciary capacity in the course of administering the trust if the trustee in the contract disclosed the fiduciary capacity.(2) A trustee is personally liable for torts committed in the course of administering a trust, or for obligations arising from ownership or control of trust Property only if the trustee is personally at fault.(3) A claim based on a contract entered into by a trustee in the trustee's fiduciary capacity, on an obligation arising from ownership or control of trust Property, or on a tort committed in the course of administering a trust, may be asserted in a judicial proceeding against the trustee in the trustee's fiduciary capacity, whether or not the trustee is personally liable for the claim.
73. Personal obligations of trustee
Trust Property is not subject to personal obligations of the trustee, even if the trustee becomes insolvent or bankrupt.
74. Protection of persons dealing with trustees(1) A Person other than a beneficiary who in good faith assists a trustee, or who in good faith and for value deals with a trustee, without knowledge that the trustee is exceeding or improperly exercising the trustee's powers is protected from liability as if the trustee properly exercised the power.(2) A Person other than a beneficiary who in good faith deals with a trustee is not required to inquire into the extent of the trustee's powers or the propriety of their exercise.(3) A Person who in good faith delivers assets to a trustee need not ensure their proper application.(4) A Person other than a beneficiary who in good faith assists a former trustee, or who in good faith and for value deals with a former trustee, without knowledge that the trusteeship has terminated is protected from liability as if the former trustee were still a trustee.(5) Comparable protective provisions of other DIFC laws relating to commercial transactions or transfer of Securities by fiduciaries prevail over the protection provided by this Article.
75. Constructive trustee(1) Subject to Article 75(2), where a Person makes or receives any profit, gain or advantage from a breach of trust the Person shall be deemed to be a trustee of that profit, gain or advantage.(2) Article 75(1) shall not apply to a bona fide purchaser of Property for value without notice of a breach of trust.(3) A Person who is or becomes a constructive trustee shall deliver up the Property of which the Person is a constructive trustee to the Person properly entitled to it.(4) This Article shall not be construed as excluding any other circumstances under which a Person may be or become a constructive trustee.
76. Certification of trust(1) Instead of furnishing a copy of the trust Instrument to a Person other than a beneficiary, the trustee may furnish to the Person a certification of trust containing the following information:(a) that the trust exists and the date the trust Instrument was executed;(b) the identity of the settlor;(c) the identity and address of the currently acting trustee;(d) the powers of the trustee;(e) the revocability or irrevocability of the trust and the identity of any Person holding a power to revoke the trust;(f) the authority of co-trustees to sign or otherwise authenticate and whether all or less than all are required in order to exercise powers of the trustee; and(g) the manner of taking title to trust Property.(2) A certification of trust may be signed or otherwise authenticated by any trustee.(3) A certification of trust shall State that the trust has not been revoked, modified, or amended in any manner that would cause the representations contained in the certification of trust to be incorrect.(4) A certification of trust need not contain the dispositive terms of a trust.(5) A recipient of a certification of trust may require the trustee to furnish copies of those excerpts from the original trust Instrument and later amendments which designate the trustee and confer upon the trustee the power to act in the pending Transaction.(6) A Person who acts in reliance upon a certification of trust without knowledge that the representations contained therein are incorrect is not liable to any Person for so acting and may assume without inquiry the existence of the facts contained in the certification. Knowledge of the terms of the trust may not be inferred solely from the fact that a copy of all or part of the trust Instrument is held by the Person relying upon the certification.(7) A Person who in good faith enters into a Transaction in reliance upon a certification of trust may enforce the Transaction against the trust Property as if the representations contained in the certification were correct.(8) A Person making a demand for the trust Instrument in addition to a certification of trust or excerpts is liable for damages if the Court determines that the Person did not act in good faith in demanding the trust Instrument.(9) This section does not limit the right of a Person to obtain a copy of the trust Instrument in a judicial proceeding concerning the trust.
Part 10: The Protector
77. The Protector(1) A trust Instrument may contain provisions by virtue of which the exercise by the trustees of any of their powers shall be subject to the previous consent of the settlor or some other Person as protector, and if so provided in the trust Instrument the trustees shall not be liable for any loss caused by the actions of the protector if the previous consent was given and he acted in good faith.(2) The trust Instrument may confer on the settlor or on the protector any powers, including without limitation the power to:(a) determine the law of which jurisdiction shall be the governing law of the trust;(b) change the forum of administration of the trust;(c) remove trustees;(d) appoint new or additional trustees;(e) exclude any beneficiary as beneficiary of the trust;(f) add any Person as a beneficiary of the trust in addition to any existing beneficiary of the trust;(g) give or withhold consent to specified actions of the trustee either conditionally or unconditionally; and(h) release any of the protector's powers.(3) A Person exercising any one or more of the powers set forth in Article 77(2) shall not by virtue only of such exercise be deemed to be a trustee and, unless other wise provided in the trust Instrument, is not liable to the beneficiaries for the bona fide exercise of the power.
Schedule 1 Interpretation
1. Rules of interpretation(1) In the Law, a reference to:(a) a statutory provision includes a reference to the statutory provision as amended or re-enacted from time to time;(b) a Person includes any natural Person, Body Corporate or body unincorporate, including a company, Partnership, unincorporated association, government or state;(c) an obligation to publish or cause to be published a particular document shall, unless expressly provided otherwise in the Law, include publishing or causing to be published in printed or electronic form;(d) a day shall refer to a business day, being a normal working day in the DIFC;(e) a calendar year shall mean a year of the Gregorian calendar;(f) a reference to the masculine gender includes the feminine; and(2) The headings in the Law shall not affect its interpretation.
2. Legislation in the DIFC
References to legislation and Guidance in the Law shall be construed in accordance with the following provisions:(a) Federal Law is law made by the federal government of the United Arab Emirates;(b) Dubai Law is law made by the Ruler, as applicable in the Emirate of Dubai;(c) DIFC Law is law made by the Ruler (including, by way of example, the Law), as applicable in the DIFC;(d) the Law is the Trust Law, DIFC Law No.[xxx] of 2005 made by the Ruler;(e) the Rules are legislation made by the DFSA under the Law and are binding in nature;(f) Guidance is indicative and non-binding and may comprise (i) Guidance made and issued by the Chief Executive under the Law; and (ii) any standard or code of practice issued by the DFSA Board of Directors which has not been incorporated into the Rules; and(g) references to "legislation administered by the DFSA" are references to DIFC Law and Rules conferring functions and powers on the DFSA.
3. Defined Terms
In the Law, unless the context indicates otherwise, the defined terms listed below shall have the corresponding meanings:
Term Definition beneficiary means a Person entitled to benefit under a trust. breach of trust means a breach of any duty imposed on a trustee by the Law or by the terms of the trust. charitable trust means a trust or portion of a trust, created for a charitable purpose described in Article 30. Court DIFC Court as established under Dubai Law No. 12 of 2004. DFSA the Dubai Financial Services Authority. DIFC the Dubai International Financial Centre. DIFC trust means a trust whose governing law is DIFC law. discretionary trust is a trust in which the settlor has delegated nearly complete or limited discretion to the trustee to decide when and how much income or Property is distributed to a beneficiary. enforcer shall be construed in accordance with Article 31. foreign law any law other than DIFC Law foreign trust is a trust whose governing law is the law of a jurisdiction other than DIFC. governing law means the law chosen by the settlor to be applicable to the trust; or where no law is chosen, the law most closely Connected to the trust at the time of its creation. Law the Trust Law 2005. minor means a Person who has not attained the age of majority under the governing law of trust, or where no law has been chosen, the law of his domicile. person has the meaning given in Article 1 of the Schedule. President the president of the DIFC appointed by a decree of the Ruler pursuant to Dubai Law No. 9 of 2004. property means any movable or immovable Property, and includes Rights and Interests, whether present or future and whether vested or contingent. protector shall be construed in accordance with Article 77. Ruler the ruler of the Emirate of Dubai. Rules has the meaning given in Article 2 of Schedule 1 to the Law. Schedule a schedule to the Law. settlor means a Person who makes a trust and includes a Person who provides trust Property but does not include a Person who contributes to a unit trust. terms of the trust means the written or oral terms of a trust or any other terms applicable under its governing law. trust includes the trust Property and the rights, powers, duties, interests, relationships and obligations under a trust. trust instrument means an Instrument by which a trust is created and includes a unilateral declaration of trust and any Instrument varying the terms of the trust. trust property means the Property for the time being held on trust. trustee means a Person appointed to act as a trustee of a trust in accordance with the provisions of this Law. unit trust means any trust established for the purpose, or having the effect, of providing, for persons having funds available 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 Property whatsoever.