Cap. 331 Art. 43APrivatetrusteesand notarial procedure.

(1) In this article the term "Notarial Law" means the

Notarial Profession and Notarial Archives Act.

(2) An individual who agrees to act as a trustee because -

(a) he is related to the settlor, by consanguinity or affinity in the direct line up to any degree or in the collateral line up to the fourth degree inclusively, or

(b) he has known the settlor for at least ten years, and, in the cases mentioned in paragraphs (a) and (b), the individual:

(i) is not remunerated, even indirectly, except as permitted by any rules issued by the Authority;

(ii) does not hold himself out as a trustee to the public, and

(iii) does not act habitually as trustee, in any case in relation to more than five settlors at any time, (hereafter referred to as a "private trustee") may act as a trustee without the need for authorisation in terms of the preceding article, subject to the conditions stated in subarticle (3).

(3) A private trustee shall be permitted to act as trustee under the following conditions which shall apply as the case may be:

(i) in the case of a testamentary trust, that within six months of accepting to act as trustee, he shall draw up an inventory by notarial deed in terms of Part IIIA of the Notarial Law and shall declare in the deed that the inventory includes all the property under the trust and an extract of the will containing all the terms of the said trust shall be annexed to the said notarial deed;

(ii) in the case of an trust, the trust must inter vivos be created by a notarial trust deed;

(iii) where property, other than immovable property, is added to the trust by a settlor or any other person, in terms of article 10 or by declaration of the trustee, such addition shall be recorded by a notarial trust deed on delivery of the additional property to the trustee, if practicable, but in any case not later than fourteen working days of receipt of such property by the trustee. In the case of immovable property the addition of property shall be carried out by a notarial act, an authenticated copy of which shall be delivered to the depository notary for safekeeping and registration with the trust documents within such time;

(iv) records of meetings with beneficiaries, advisors or protectors, the exercise of discretion by the trustee in appointing or removing a beneficiary, in reducing, distributing or advancing trust property, in the termination of the trust for any reason, or other material events shall be rendered in writing and shall, together with any annual accounts and Court decrees, orders, declarations or directions which may be issued in relation to trust property, be delivered to the depositary notary;

(v) in all cases, the trustee shall declare the facts applicable to himself to show that he does not require authorisation to act as a trustee in terms of this Act and is not disqualified in terms of article 53, after the notary has warned him as to the importance of the truthfulness of such declarations;

(vi) in the case of a trust relating to relevant property for the purposes of article 43(9), the depositary notary shall ascertain that the provisions of article 43 are observed by the trustee.

(4) Where the trustee is a private trustee, the notary public who publishes a will containing a testamentary trust or receives a notarial trust deed inter vivos shall be the sole depository of all acts referred to in the preceding subarticle and such notary shall be known as the depository notary: Provided that if such notary public is appointed as a trustee in the deed creating the trust and accepts to so act, such notary shall ensure that the deed of trust names another notary public to carry out the functions of the depositary notary.

(5) Notwithstanding any other law relating to the profession of notaries public, a notary who receives a will containing a trust, or a notarial trust deed shall not be precluded from being appointed as the trustee in such will or deed but if a notary is a trustee he may not act as the depository notary, the notary keeper or qualified person, as applicable: Provided that should the depositary notary be appointed trustee subsequent to the creation of a trust, his acceptance to act shall be conditional on such notary delivering all trust documents to another depositary notary to the satisfaction of the Authority and as provided in sub-article (9), and also to appoint a new qualified person where applicable.

(6) It shall be the duty of the trustee to submit to the depository notary all documents relative to the trust within fifteen days of coming into existence or of coming into existence or of coming into possession of the trustee or of the date of relevant event to which the document refers, as the case may be. On receipt of any such document the notary shall declare in writing on the document the date, time, and place of receipt. Such declaration shall, until the contrary is proved, be evidence of its content. All such documents shall be held for safekeeping and registration in the manner as may be laid down by the Authority from time to time: Provided that the depository notary shall not be held responsible for the failure of the trustee to deliver the documents relative to the trust as laid down in this sub-article.

(7) The trust deed and all documents relative to a trust filed with a depository notary shall be confidential. The depository notary shall not be obliged to provide information on the trust deed or any other document relative thereto except as provided by this Act or article 68A of the Notarial Profession and Notarial Archives Act and with the written consent of the trustee or upon an order of the Court.

(8) Where in terms of Notarial Law a notary keeper has been appointed instead of the depository notary, the notary keeper shall be the depository notary relative to the trust and a reference to the depository notary in this or any other law shall be construed accordingly.

(9) The trustee may, by notice in writing to the notary and to the Authority, substitute the depositary notary or the notary keeper in his capacity as the depositary notary and the latter shall deliver to the substitute depositary notary all documents in his possession in the preceding subarticles and, in case of public deeds, authenticated copies thereof and this within thirty days from the date of the receipt of such notice, unless otherwise ordered not to do so by the Authority. The substituted notary may request a written receipt and keep copies of the documents delivered to the appointed depository notary but shall keep such copies secure and in strict confidence and shall not provide access to any person other than the serving depository notary, the trustee or the Authority. A publishing notary who is not also the depository notary may also request a written receipt and keep copies of the documents delivered to the appointed depositary notary, in which case the publishing notary shall also be subject to the same duties of confidentiality as set out above, with respect to such documents.

(10) A notary who fails to observe the provisions of this article shall be guilty of an offence and shall on conviction be liable to a fine (ammenda) of not less than one hundred and sixteen euro and forty-seven cents (116.47) and not more than two hundred and thirty-two euro and ninety-four cents (232.94): Provided that no proceedings shall be instituted where the notary, upon a notice in writing by the Authority admits liability to pay such fine at its maximum amount.

(11) When a trust is created in accordance with the provisions of this article, the trustee shall remain subject to the requirements set out in relation to the depository notary until the termination of the trust even if the trustee becomes authorised or is substituted by a trustee authorised or not required to be authorised in terms of article 43.

(12) When a trust is not created in accordance with the provisions of this article and a private trustee is subsequently appointed to office, it shall be a condition to his acceptance to act that a notarial deed of acceptance be executed in such manner that the provisions of this article are observed as far as possible at that stage, reference being made to the settlor for the purposes of the note of enrollment and a full inventory, of the trust property being transferred to the trustee, being attached.

(13) If any person wishes to create a trust and appoints a trustee other than a private trustee and also wishes that the provisions of this article apply, such person may choose to do so by notifying the notary public that it is his wish that the provisions of this article apply and that the notary act as depository notary under the provisions of this article. In such case the notary shall request the trustee to declare, in lieu of the declaration in subarticle (3)(v), that he is authorised, or not required to be authorised, in terms of article 43 and is aware of his obligations under this article. In such cases the requirement of article 50 of the Notarial Law to the effect that the Notary registers a note of enrollment relating to the creation of the trust shall not apply if the settlor expressly exempts him from such duty.

(14) In all cases the Court may exercise the power to appoint, remove, substitute and give directions to a depositary notary on the application of the depositary notary, any interested person or the Authority.