Management of Trusts
Trustee – being the one managing the trust property and settlor drops out of
picture
TYPES OF TRUSTEES
(i) Qualified Trustee – Section 28(1) TA 01
The number of trustees of a trust shall not exceed 4 of whom, at any one time, at least one
shall be a qualified trustee.
Section 28(4) TA 01- Where at any time there is no qualified trustee of a trust, any person
having an interest in the trust may apply to the Judge in Chambers for the appointment of a
qualified trustee nominated in the application.
(ii) Managing Trustee – Section 25 TA 01
He is the one who gives directives on how to manage the trust without being vested with
the trust property.
(iii) Custodian Trustee – Section 26 TA 01
He is the one who holds the trust property physically and acts as per the directives of the
managing trustee.
Appointment of Trustees
Trustees are appointed in the Trust Deed by the settlors and they can also be appointed by
Judge in Chambers.
Resignation or removal of a trustee (Section 31 TA 01)
(1) A trustee other than a sole trustee may resign his office by delivering a written notice of
resignation to his co-trustees.
(2) A trustee shall cease to be a trustee immediately upon the delivery of a notice of
resignation under subsection (1) or his removal from office by the Court.
Remuneration of trustees-Section 44 TA 01
A trustee shall be remunerated for his services subject to the terms of trust and an order of
court.
According to Section 44 (2) TA 01- A trustee shall be entitled to be reimbursed out of the
trust property for all expenses and liabilities properly incurred by him in connection with the
trust.
Enforcer – SECTION 21 TA 01
An enforcer is appointed under the terms of a purpose trust who has to enforce the trust in
accordance with its terms and purposes.
No person can be a trustee and an enforcer at the same time.
According to Section 21(3) TA 01, an appointment as enforcer shall be of no effect unless
the appointment has been accepted by the enforcer, and in the case of a purpose trust
created by a Mauritian national, the appointment has been approved by the Commission
(FSC).
• Duties of Enforcer – Section 21(4) TA 01
An enforcer shall not -
(a) place himself in a position which may conflict with his duties to enforce the purposes of
the trust
(b) derive directly or indirectly any profit by reason of his appointment other than any
reasonable fee for his service and for any reasonable expenses which he may have incurred
in the discharge of his duties
(c) enter on his own account into any dealing with the trustee of the purpose trust or in
relation to the trust property of the purpose trust of which he is an enforcer.
• Resignation of Enforcers : Section 21(5) TA 01
An enforcer may resign his office and his resignation shall take effect on the delivery of
notice in writing to the trustee of the purpose trust.
Removal of Enforcers: Section 21(8) TA 01
An enforcer shall cease to act as enforcer of the trust :
• From the date he resigns
• By virtue of a term in the trust which has as effect the termination of his
appointment as enforcer
• If he is removed by the Court
• From the date he is appointed as trustee of the same trust
Liability of Enforcers -Section 21(7) TA 01:
The enforcer does not escape liability after his resignation. For instance, if he has stolen the
trust property, he needs to remedy the situation by returning the trust property.
Protectors-SECTION 24 TA 01
• Rationale for appointing Protectors
Due to the settlor not having enough trust on the qualified trustee, the settlor also appoints
a protector.
The protector may monitor the functioning of trustees or advise them. (Section 24(1) TA 01)
• Who can be appointed as Protector? – Section 24(2) TA 01
The trust instrument may appoint as protector, any person of full age and of sound mind,
including the settlor, or any corporate body, any firm, partnership or group of persons,
whether incorporate or unincorporate.
• Section 24(5) TA 01: The protector of a trust may also be a settlor, a trustee or a
beneficiary of the trust.
• Statutory Powers of Protectors – Section 24(3) TA 01
Unless otherwise provided in the terms of the trust, the protector shall have the power -
1. to remove a trustee and to appoint a new or additional trustee
2. to determine the law of which jurisdiction shall be the proper law of the trust
3. to change the forum of administration of the trust
4. to withhold consent from specified actions of the trustees either conditionally or
unconditionally
• Liability of Protectors – Section 24(4) TA 01
The protector shall not be liable to the beneficiaries and shall not be deemed a trustee.
• Decision Making in the case more than 1 protector is appointed – Section 24(6) and
24(7) TA 01
Where there is more than one protector of a trust, any functions conferred on the
protectors may be exercised, subject to the terms of the trust, by a majority of the number
of protectors.
A protector who dissents from a decision of the majority of protectors may require his
dissent to be recorded in writing.
