Cap. 331 Art. 9Rights of beneficiaries.

(1) A beneficiary has an entitlement, called a beneficial interest, in or to the trust property, as the case may be. The beneficiary may enjoy the beneficial interest subject to the terms of the trust and the provisions of this Act and any other provisions of law applicable to trusts.

(2) Rights of a beneficiary are personal to him and cannot be transmitted by inheritance except as provided for in the terms of the trust. Subject to any applicable laws and only as stated in terms of the trust, creditors, spouses, heirs or legatees of the beneficiary may have rights only to the extent of the beneficiary’s entitlements under the trust and have no other rights in relation to the trust property or the trustee.

(3) The interest of a beneficiary under a trust shall be deemed to be movable property, even if the trust property includes immovable property.

(4) A person shall not be entitled to benefit under a trust unless he is -

(a) identifiable by name; or

(b) ascertainable by reference to a class or to a relationship to some person, whether or not living 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;

and if there are no beneficiaries identifiable or ascertainable as aforesaid the trust shall, unless the purpose of the trust is a charitable purpose, fail.

(5) Persons who are not yet conceived at the time of the settlement of property under trusts may be named as beneficiaries or form part of a class of beneficiaries but their rights arise only once they are born viable.

(6) A settlor of a trust may also be a beneficiary under the trust.

(7) The terms of the trust may provide for the addition of a person as a beneficiary, the exclusion of a beneficiary from benefit, or the imposition on a beneficiary of an obligation as a condition for benefit.

(8) When the trustee is granted the power to add a person as a beneficiary such power shall be valid on condition that such person is identifiable by name or forms part of a class of persons the members of which are reasonably individually identifiable, such identification to be given either in the trust instrument or in any other written instrument, signed by the settlor, whether binding or not on the trustee.

(9) A person who may be added as a beneficiary in terms of a power granted to the trustee shall not enjoy any rights in relation to the trust property or against the trustee and shall not be considered a beneficiary in any manner until appointed as a beneficiary by the trustee.

(10) It shall be lawful for a trustee to be granted the discretion as to which beneficiaries are to benefit, the quantity of any benefit, at what time and in what manner beneficiaries are to benefit and such other powers relating to the appointment, application or advancement of trust property.

(11) A beneficiary in whose favour a discretion to appoint or advance property may be exercised shall have no rights in or to specific trust property until such time as such discretion is exercised by the appointment, application or advancement of such trust property in favour of such beneficiary:

Provided that nothing in this subarticle shall be construed as excluding the duty of the trustee to properly and fairly consider all such beneficiaries in the exercise of his discretion.

(12) A beneficiary may, by instrument in writing, disclaim his whole interest and such a disclaimer shall be irrevocable, whether or not he has received any benefit from his interest.

(13) Subject to the terms of the trust, a beneficiary may disclaim part of his interest, whether or not he has received some benefit from his interest; in any such case, but subject to the terms of the trust, a disclaimer may, by the instrument by which the interest is disclaimed, be made revocable, and shall then be capable of revocation in the manner and under the circumstances therein mentioned or referred to.

(14) Subject to the terms of the trust, a beneficiary may, by instrument in writing, sell, charge, transfer or otherwise deal with his interest in any manner.

(15) (a) The provisions of this article shall apply to dispositions in wills in favour of trustees whether appointed or by testamentary disposition inter vivos notwithstanding the provisions of articles 688, 693 and 695 and other provisions of the Civil Code.

(b) A disposition in a will in favour of -

(i) a named trust, or

(ii) the trustee of a named trust, or

(iii) a named trustee or in his stead the pro tempore trustee in relation to a named trust, whether created or by means of a will, shall inter vivos be valid whether the trustee is in office or yet to be appointed in accordance with the terms of a trust.

(c) Any disposition in a will shall be valid even if, at the time of the opening of succession -

(i) the named trustee is no longer the trustee of the trust indicated in the will; or

(ii) there is no trustee in office, and any such disposition shall be construed as referring to the trustee pro tempore of the trust indicated in the will.

(d) Without prejudice to the right of a trustee to accept an inheritance with the benefit of inventory, a trustee may not renounce to a benefit under a will pursuant to a disposition in his favour as trustee or in favour of the trust except with the consent of all the beneficiaries or the Court.

(e) The refusal to accept to act as a trustee under a trust or the resignation of a trustee from office shall not in any way affect the operation of a testamentary disposition in favour of a trust and, in such case, the provisions of articles 19 and 20 shall apply.