Cap. 16 Art. 26Definition of foun- dation.

(1) A foundation is an organisation consisting of a universality of things constituted in writing, including by means of a will, by a founder or founders whereby assets are destined either -

(a) for the fulfilment of a specified purpose; and, or

(b) for the benefit of a named person or class of persons, and which are entrusted to the administration of a designated person or persons.

The patrimony, namely assets and liabilities, of the foundation is distinct from that of its founder, administrators or any beneficiaries. The fiduciary obligations in 1124A of this Code shall be binding upon the foundation and all persons administering it towards any beneficiaries for the fulfilment of the stated purposes of the foundation:

Provided that the fiduciary obligations shall be subject to such restrictions or modifications as may be stated in the statute or the terms of engagement of the administrators, as the case may be. (2)For the purposes of this Title, the term "foundation" shall include all organisations, institutes or similarly titled patrimonies which are set up through the bequest, endowment or appropriation of assets, by public deed or otherwise and howsoever named, for a stated purpose or for the benefit of a named person or class of persons, to be achieved through a designated administrator or administrators, but shall not include trusts as defined in the Trusts and Trustees Act. (3)The assets of a foundation may originate from any lawful business or activity and may consist of present or future assets of any nature.

(4)When a testamentary bequest is made having the elements contemplated in sub-article (1), a testamentary executor or the heirs of a deceased person shall be deemed to enjoy the power to convert such bequest into a foundation having the same aims and purposes as stated in the will, and register the same. The testamentary executor or heirs shall have the power, which shall be exercised with the utmost good faith, to draft the terms and conditions of the statute of the foundation, designate the administrators and regulate all matters which may appear to them to be relevant to comply with the requirements of registration and the wishes of the testator. (5)Foundations in the form of marriage legacies shall continue to be regulated by the laws in force on the 31st December, 2006 unless they opt to register as foundations in terms of this Schedule in which case they shall be regulated by the provisions of this Schedule from such date. (6)Foundations may be established in one or two legal forms being either for the benefit of beneficiaries (called "beneficiary foundations") or for the fulfilment of a specified purpose without beneficiaries (called "purpose foundations"). Whatever legal form they take, foundations may have any of the purposes stated in article 1.

(7)In this Schedule:

(a) any reference to "pious foundation" includes:

(i) an autonomous pious foundation, that is, an aggregate of things destined for pious or religious purposes and established as juridical persons by the competent ecclesiastical or other religious authorities;

(ii) non-autonomous pious foundations, that is, temporal goods given in any way to a public juridical person established by the competent ecclesiastical or other religious authorities and carrying with them a long-term obligation, such period to be determined by applicable religious or national law, and where a long-term obligation consists of binding the juridical person, from the annual income, to celebrate Masses or other religious ceremonies, to perform other determined ecclesiastical functions, or in some other way to fulfil the pious or religious purposes as defined by the applicable religious laws or rules; and

(iii) "pious or religious purposes" are understood to be those which concern acts of piety, of the apostolate, or of charity, whether spiritual or temporal and include similar organisations of any religious denomination;

(b) any reference to "ecclesiastical entity" shall be a reference to an association of persons or a universality of things which are established by the competent ecclesiastical or other religious authority so that they might, in the name of such authority and in accordance with the provisions of the relevant law, fulfil the specific task entrusted to them in view of the public good, including the imparting of religious teaching, the promoting of public worship and the undertaking of projects which are appropriate to their character and governed by their statutes, under the higher direction of the said authority. Such entities include dioceses, parishes and all institutes of consecrated life and societies of apostolic life, and include similar organisations of any religious denomination.

(8)With effect from the relevant date, it shall not be lawful to establish a foundation other than by public deed or by will for marriage legacies or ecclesiastical entities.

(9)The appropriation of assets to a purpose or for the benefit of beneficiaries written in the form indicating an intent to establish a foundation but which is not made by a public deed of foundation or by will, shall be regulated by the provisions relating to unregistered organisations. In such cases, the persons who may be acting as administrators or fiduciaries shall be deemed to have the power to constitute such appropriation of assets into a foundation in accordance with this Schedule and to register the same.

(10)Until such time as it is registered, it shall not be lawful for such an organisation to use the word "foundation" in its name and the Registrar may, upon being notified thereof or upon becoming otherwise aware of such circumstances, by notice in writing demand the removal of such word from the name. (11)It shall be presumed that a mandate regulated by Title XVIII of this Code or a deposit regulated by Title XIX of this Code, has been established, where a written instrument is executed vesting a person with the ownership or possession of property for the fulfilment of a specified purpose or for the benefit of beneficiaries, unless there is clear evidence of an intent to create a foundation as stated in sub-article (9) and to appoint the recipient as an administrator, or a trust and to make the recipient a trustee.