Trusts may be created in Gibraltar under the Trustee Act which is based on the English Trustee Act of 1893. There is no legal requirement to register Trusts in Gibraltar although voluntary registration is possible.
A settlor will normally transfer assets into a Trust under the terms of a Trust Deed. The assets will then be administered by the Trustees appointed for the benefit of beneficiaries named in the Trust Deed. The result is that legal ownership of the assets passes from the settlor to the Trustees who will manage these in accordance with the terms of the Trust deed.
Upon the occurrence of a pre-determined event, such as the beneficiaries attaining a certain age, the Trustees will transfer the assets to the beneficiaries plus any income earned form the investment of the assets of the Trust.
Pending the occurrence of such event, the Trustees are under a strict duty to administer the Trust funds in accordance with the terms set out in the Trust Deed and to exercise a high degree of prudence and caution.
The Settlor will appoint Trustees of his choice to administer the trust for the benefit of the beneficiaries. These are normally persons of the Settlor’s confidence or professional persons but we can provide Trustees in certain circumstances.
The Settlor may wish to appoint a Protector of the Trust. He/she would normally be a person who enjoys the confidence of the Settlor and will control and supervise the exercise of the powers of the Trustees.
On important matters, such as the addition or removal of beneficiaries or the change of the proper law of the Trust and its place of administration, such powers cannot be exercised by the Trustees without the explicit consent of the Protector. The Protector will frequently have the power to remove and appoint Trustees.
These are Trusts peculiar to English Law and are widely used in Gibraltar.
The Trust Deed can name a number of possible beneficiaries and the Trustees, in their discretion, can choose between them as to who will ultimately receive the benefit of the assets. This makes it impossible to establish at any time who the actual beneficiary is or may be under the Trust.
Trust assets can be held by Gibraltar companies whose shares are owned by the Trust. This gives both flexibility and enables the Settlor to exercise a greater degree of control in the administration of the assets whilst distancing himself/herself from the Trust. The reason for this is that, as a commercial vehicle, a company is a more convenient entity to own and deal in and with assets rather than a trust.
Asset Protection Trusts
Gibraltar’s asset protection trust laws are contained in bankruptcy legislation rather than falling, as with other jurisdictions, within the ambit of fraudulent conveyancing laws.
This type of trust seeks to protect the assets of a Settlor from risks arising out of damages awarded in actions for professional negligence, political instability, confiscatory taxes, excessive awards in matrimonial suits and other risks associated with commercial activity and everyday life.
Creditors of the Settlor seeking to set aside transfers of assets into an offshore asset protection trust will seek to do so in one of two ways; under fraudulent conveyancing rules or under bankruptcy rules. Fraudulent conveyancing rules in most jurisdictions depend for their effect upon the definition given in the relevant statute to “intent” to defraud. If the creditor is able to meet such standards and to show that the creditor’s intent was to defraud when the trust was settled, he may successfully be able to initiate proceedings in the jurisdiction where the trust was settled for the recovery of his debt.
Since asset protection trust legislation in Gibraltar is part of the bankruptcy laws where there is no definition of “intent”, the only direct action which can be commenced is a bankruptcy proceeding where the standard of intent to defraud that must be met is much narrower and more difficult for the creditor to satisfy.
The creditor’s right of access to the Courts of Gibraltar is significantly restricted since, in order to commence bankruptcy proceedings, it must be demonstrated that the Settlor is resident or domiciled in Gibraltar or that an act of bankruptcy was committed here.
Asset Protection Trusts are registerable in Gibraltar. The Trustees must be companies with permanent addresses in Gibraltar and must be authorised by the Financial Services Commission to act as such.
A Purpose Trust is a trust created for the fulfilment of a purpose and not for the benefit of a person. With the exception of charitable trusts, these are normally considered invalid by the courts; usually because they have no beneficiaries and, therefore, nobody who can enforce the Trust. In 2015, Gibraltar enacted the Purpose Trusts Act which enables valid Purpose Trusts to be established in Gibraltar.