Virgin Islands Special Trusts Act (Revised 2020)

VIRGIN ISLANDS VIRGIN ISLANDS SPECIAL TRUSTS ACT Revised Edition showing the law as at 1 January 2020 This is a revised edition of the law, prepared by the Law Revision Commissioner under the authority of the Law Revision Act 2014. This edition contains a consolidation of the following laws— Page VIRGIN ISLANDS SPECIAL TRUSTS ACT 3 Act 10 of 2003 .. in force 1 March 2004 (S.I. 12/2004) Amended by Act: 7 of 2013 .. in force 15 May 2013 (S.I. 29/2013)

VIRGIN ISLANDS VIRGIN ISLANDS SPECIAL TRUSTS ACT Revised Edition showing the law as at 1 January 2020 This is a revised edition of the law, prepared by the Law Revision Commissioner under the authority of the Law Revision Act 2014. This edition contains a consolidation of the following laws— Page VIRGIN ISLANDS SPECIAL TRUSTS ACT 3 Act 10 of 2003 .. in force 1 March 2004 (S.I. 12/2004) Amended by Act: 7 of 2013 .. in force 15 May 2013 (S.I. 29/2013)

Published in 2021 On the authority and on behalf of the Government of The Virgin Islands by The Regional Law Revision Centre Inc. For information contact— Attorney General’s Chambers Government of the Virgin Islands P.O. Box 242 Road Town Tortola, VG1110 British Virgin Islands Tel: (284) 468 - 2960 Email: agc@gov.vg Printed on the authority and on behalf of the Government of The Virgin Islands by The Regional Law Revision Centre Inc. P.O. Box 1626, 5 Mar Building, The Valley, AI-2640, Anguilla Authorised Printers for this Revised Edition

LAW OF VIRGIN ISLANDS Virgin Islands Special Trusts Act 3 Revision Date: 1 Jan 2020 VIRGIN ISLANDS SPECIAL TRUSTS ACT ARRANGEMENT OF SECTIONS SECTION

1. Short title
2. Interpretation
3. Primary purposes of this Act
4. Designated shares
5. Trustee’s duties in relation to designated shares
6. Restrictions on trustee’s powers
7. Provisions relating to directors
8. Intervention by trustee in management in prescribed circumstances
9. Power to dispose
10. Enforcement
11. Power of Court to order disposal
12. Modification of rule in Saunders v. Vautier
13. Disqualification of trustee as a director
14. Ascertaining wishes of settlor
15. Limitation of trustee’s duties
16. Regulations

LAW OF VIRGIN ISLANDS Virgin Islands Special Trusts Act 5 Revision Date: 1 Jan 2020 VIRGIN ISLANDS SPECIAL TRUSTS ACT (Acts 10 of 2003 and 7 of 2013) AN ACT TO MAKE SPECIAL PROVISION FOR TRUSTS OF SHARES IN COMPANIES AND FOR RELATED MATTERS, INCLUDING PROVISION FOR THE RETENTION BY TRUSTEES OF SHARES IN A COMPANY IRRESPECTIVE OF THE FINANCIAL ADVANTAGES OF DISPOSAL, FOR PROHIBITING TRUSTEES FROM INTERVENING IN THE MANAGEMENT OF THE COMPANY EXCEPT IN CERTAIN CIRCUMSTANCES, AND FOR THE APPOINTMENT AND REMOVAL OF DIRECTORS OF THE COMPANY IN ACCORDANCE WITH THE TERMS OF THE TRUST INSTRUMENT. Commencement [1 March 2004] Short title

1. This Act may be cited as the Virgin Islands Special Trusts Act. Interpretation
2. (1) In this Act, unless the context otherwise requires— “business” in relation to a company includes the holding of shares or other assets and non-commercial activities; “business risk” in relation to a company includes— (a) any risk attached to any business of the company, or any connected company, when conducted in the manner in which it has in fact been conducted; or (b) any risk which can be expected to be attached to any projected business of the company; “court” means the High Court; “designated shares” means Virgin Islands shares comprised in a trust fund and in respect of which a valid direction under section 4(1) has been made and is in effect; (Amended by Act 7 of 2013) “designated trustee” means— (a) a holder of a trust licence under the Banks and Trust Companies Act; or (b) a private trust company as defined in paragraph 1 of Part I of the Schedule to the Financial Services (Exemptions) Regulations; (Substituted by Act 7 of 2013) “interested person “ in relation to a trust means— (a) a beneficiary of the trust; (b) an object of a discretionary power over any of the capital or income of the trust; (c) a parent or legal guardian of any minor person falling within paragraphs (a) or (b);

6 Virgin Islands Special Trusts Act Revision Date: 1 Jan 2020 LAW OF VIRGIN ISLANDS (d) where any of the purposes of the trust are exclusively charitable, the Attorney General; (e) an enforcer referred to in section 84A of the Trustee Act; (f) a protector, unless the trust instrument provides otherwise; (Amended by Act 7 of 2013) (g) an appointed enquirer; or (Amended by Act 7 of 2013) (h) any other person so designated under the terms of the trust instrument; (Inserted by Act 7 of 2013) “intervention call” means a call by an interested person under section 8(1) for a trustee to intervene in the affairs of a company; “legal guardian “ in relation to a minor person means a person legally recognised as his guardian in any jurisdiction with which the minor has a substantial connection; “office of director rules” means rules referred to in section 7(1) and any amendments thereto for the time being in force; “trust fund “ in relation to a trust means property for the time being subject to the trust; “Virgin Islands shares” means shares in a company that is on the Register of Companies maintained under the BVI Business Companies Act which is not— (a) a company which has a licence under the Banks and Trust Companies Act; (b) a company which is licensed as an insurer under the Insurance Act or which is authorised to act as an insurance manager under that Act; (c) a company which is registered as a public fund, or recognised as a private fund or a professional fund, under the Securities and Investment Business Act; (d) a company which is licensed as a fund manager or administrator under the Securities and Investment Business Act; (e) a company which has a licence under the Company Management Act; or (f) a company which has a licence under the Financing and Money Services Act. (Amended by Act 7 of 2013) (2) In this Act— (a) references to voting powers in respect of shares shall be taken to include references to powers to direct the voting of shares held by a nominee; (b) references in relation to a trust to a protector are to any person or committee whose consent is requisite for the exercise of any powers;

LAW OF VIRGIN ISLANDS Virgin Islands Special Trusts Act 7 Revision Date: 1 Jan 2020 (c) references in relation to a trust to an appointed enquirer are to any person who by, or under any power conferred by, the terms of the trust is appointed to make intervention calls; (d) references to the memorandum and articles of a company are to its memorandum of association and its articles of association; (e) a company shall be taken to be connected with another company if— (i) that other company holds, directly or through a nominee, shares in it; (ii) it is controlled directly or indirectly by that other company; or (iii) it is connected with a company which is itself connected with that other company; (f) a ground for complaint concerning the conduct of a company’s affairs is permitted if it is specified as such in the trust instrument, and the expression “permitted ground for complaint” shall be construed accordingly. (3) In this Act, the following definitions shall, where the context admits, apply in relation to, or in the context of a provision referring to, designated shares— “company” means the company that has issued the designated shares; “disposal” includes— (a) the exercise of voting powers leading, or capable of leading, to the liquidation of the company or the cancellation of the shares or of any rights attached to them; (b) the creation of any legal or equitable interest in the shares, and “dispose” shall be construed accordingly; “settlor” means the person by whom the trust was created; “trust” means the trust on which the designated shares are held; “trustee “ means the trustee for the time being of the trust; “trust instrument” means the instrument containing the terms of the trust. Primary purposes of this Act 3. The primary purpose of this Act is to enable a trust of company shares to be established under which— (a) the shares may be retained indefinitely; and (b) the management of the company may be carried out by its directors without any power of intervention being exercised by the trustee.

8 Virgin Islands Special Trusts Act Revision Date: 1 Jan 2020 LAW OF VIRGIN ISLANDS Designated shares 4. (1) Where a trust fulfils the conditions specified in subsection (4), the terms of the trust may, subject to subsection (3), direct that the provisions of this Act shall apply— (a) to all Virgin Islands shares comprised in the trust fund; or (b) to such Virgin Islands shares comprised in the trust fund as may be specified in the direction. (2) For the purposes of subsection (1), Virgin Islands shares comprised in the trust fund shall be taken to include Virgin Islands shares becoming so comprised at any time after the creation of the trust, whether added to the trust fund by way of additional settlement by the original settlor or any other person, acquired on a new issue by the company or in the course of management or administration of the trust fund, or acquired in any other manner. (3) A direction under subsection (1) shall not be made in respect of shares added to the trust fund by a trustee of another trust in the exercise of a power in that other trust, unless that other trust is a Virgin Islands trust and one of the trustees of that other trust is a designated trustee. (Amended by Act 7 of 2013) (4) The conditions referred to in subsection (1) are— (a) the trust is created by or on the terms of a written testamentary or inter vivos instrument; (b) at least one trustee of the trust is a designated trustee at the time at which the direction under subsection (1) takes effect; (Substituted by Act 7 of 2013) (c) the terms of the trust require that, for so long as the direction under subsection (1) has effect, at least one trustee is a designated trustee; (Substituted by Act 7 of 2013) (d) the trust is not created in the exercise of a power conferred by another trust, unless that other trust is a Virgin Islands trust and at least one trustee of that other trust is a designated trustee. (Amended by Act 7 of 2013) (5) A direction under subsection (1) may— (a) identify the shares to which the direction relates either specifically or by any general description; (b) specify a date or event upon the occurrence of, or circumstances in, which the direction will take or will cease to have effect. (Substituted by Act 7 of 2013) (5A) The event referred to in subsection (5)(b) may include the service on the trustee of the trust, or on any of the trustees if more than one, of a written direction (“a trigger direction”) made by such person or committee as is specified by the terms of the trust to the effect that the direction under subsection (1) is immediately to take effect or is immediately to cease to have effect, as the case may be. (Inserted by Act 7 of 2013)

LAW OF VIRGIN ISLANDS Virgin Islands Special Trusts Act 9 Revision Date: 1 Jan 2020 (5B) The person or committee referred to in subsection (5A) may not be or include the trustee of the trust, or any trustee of the trust if more than one. (Inserted by Act 7 of 2013) (5C) The terms of the trust shall determine whether or not the decision to make or refrain from making the trigger direction is fiduciary and, in a case where the terms of the trust do not expressly state otherwise, there shall be a presumption that the decision is fiduciary. (Inserted by Act 7 of 2013) (6) Subject to subsection (7), where a person (“the first person”) is a settlor in relation to a trust of designated shares and additional property is settled on the terms of the trust by another person, the first person shall be considered for the purposes of this Act as the settlor in relation to the trust of the additional property. (7) If the trust instrument provides that subsection (6) shall not apply, then, in the case of a trust comprising property which has been provided by more than one person, this Act shall apply as if each person had created a separate trust in relation to the property which he has provided. (8) In this section, “Virgin Islands trust” means a trust the essential validity of which is governed by the laws of the Territory. (Inserted by Act 7 of 2013) Trustee’s duties in relation to designated shares 5. (1) Subject to section 9, designated shares shall be held by the trustee on trust to retain them. (2) The trustee’s duty to retain designated shares shall have precedence over any duty to preserve or enhance the value of the trust fund. (3) Without prejudice to subsection (2), the trustee shall not be accountable for losses arising directly or indirectly from holding, rather than disposing of, designated shares, including, in particular, losses arising from any of the factors specified in subsection (4). (4) The factors referred to in subsection (3) are— (a) the absence, or inadequacy, of financial return from any designated shares; (b) a decrease in value of any designated shares; (c) speculative or imprudent activities of the company or depletion of the company’s assets by disposition; (d) any act or omission of the directors of the company, regardless of whether it is made or carried out in good faith; (e) liquidation or receivership of the company; (f) share market fluctuation; (g) the loss of opportunity to make gains from reinvestment of the proceeds of designated shares; (h) the liabilities and expenses of the company, including directors’ remuneration and expenses.

10 Virgin Islands Special Trusts Act Revision Date: 1 Jan 2020 LAW OF VIRGIN ISLANDS (5) Every reference in subsection (4) to the company shall include a reference to any company connected to it. Restrictions on trustee’s powers 6. (1) Subject to the terms of the trust and to sections 7 and 8, the obligations specified in subsections (2) and (3) shall apply to a trustee of designated shares. (2) Voting or other powers in respect of designated shares shall not be exercised by the trustee so as to interfere in the management or conduct of any business of the company, and in particular, the trustee— (a) shall leave the conduct of every such business, and all decisions as to the payment or non-payment of dividends, to the directors of the company, (b) shall not require the declaration or payment of any dividend by the company or exercise any power the trustee may have of compelling any such declaration or payment. (3) A trustee of designated shares— (a) shall take no steps to instigate or support any action by the company against any of its directors for breach of duty to the company; (b) shall take no steps to procure the appointment or removal of any of the directors; (c) subject to section 9, shall take no steps to wind up the company; and (d) subject to the provisions of this Act, shall not apply to the court for any form of relief or remedy in relation to the company. (4) This section shall not apply so as to limit or restrict the exercise by a trustee of its rights, powers or entitlements under— (a) sections 16 and 100 of the BVI Business Companies Act; or (b) any provision of the articles of association of a company which enables members to inspect, make copies or take extracts from accounts and records of the company or any connected company. (Inserted by Act 7 of 2013) Provisions relating to directors 7. (1) The trust instrument may contain rules for determining the manner in which voting and other powers attributable to designated shares should be exercised by the trustee in relation to— (a) the appointment of directors of the company, (b) the removal of directors, (c) the remuneration of directors, or (d) any of the matters referred to in subsection (2), and may make provision for those rules to be amended.

LAW OF VIRGIN ISLANDS Virgin Islands Special Trusts Act 11 Revision Date: 1 Jan 2020 (2) The office of director rules may, in particular— (a) require the trustee to ensure that a particular person holds or retains office as director; (b) require any person to be appointed to the office of director at some future date or upon some future event; (c) require the removal of a director in specified circumstances; (d) prescribe, subject to the requirements of the memorandum and articles of the company and the law of the Territory, the minimum and maximum number of directors (whether one or more) to hold office at any time or times; (e) require the trustee, in relation to the appointment and removal of directors, to act, generally or in any specified circumstances, on the decision of a third person or committee; (f) provide for the conferral of fiduciary duties on a person or committee referred to in paragraph (e); (Amended by Act 7 of 2013) (g) provide for the establishment, continuance, and procedures of a committee referred to in paragraph (e); or (Amended by Act 7 of 2013) (h) provide for the remuneration of the person or committee referred to in paragraph (e) to be paid from the trust fund. (Inserted by Act 7 of 2013) (3) Subject to subsection (9) and to section 8, the trustee shall at all times use its voting and other powers, so far as those powers allow, to ensure— (a) that the company has at least the minimum number of directors to meet the requirements of its memorandum and articles and the law of the Territory; and (b) that, except in an exempted case, the identity of the directors of the company conforms with the office of director rules, if any, for the time being applicable. (4) No person becoming or remaining a director of the company, whether in consequence of the office of director rules or otherwise, shall, in the capacity of director, owe fiduciary or other obligations under the trust, or have any fiduciary or other obligations to the trustee, but nothing in this subsection shall affect any duty which that person owes, as director, to the company. (5) Persons for whose appointment the office of director rules may provide include— (a) any settlor or protector of the trust; (b) both ascertained and ascertainable persons. (6) A trustee shall incur no liability for securing, sanctioning or not opposing the appointment of a director where that appointment is in conformity with the office of director rules. (7) Where there are no office of director rules, and in an exempted case, a trustee shall incur no liability for securing, sanctioning, or not opposing, the appointment of a director of the trustee's own selection, if—

12 Virgin Islands Special Trusts Act Revision Date: 1 Jan 2020 LAW OF VIRGIN ISLANDS (a) the trustee concludes in good faith that the appointment in question is consistent with the wishes of the settlor; and (b) the selection is not motivated by a desire on the part of the trustee to reduce business risk, except to the extent, if at all, that the trustee in good faith concludes that a reduction would be consistent with the wishes of the settlor. (8) For the purposes of this section, an exempted case is any case in which either— (a) the office of director rules make no provision in that case; or (b) the rules make provision but the trustee concludes in good faith that it would be impossible, unlawful or impracticable to ensure compliance with the rules in that case. (Amended by Act 7 of 2013) (9) Subject to any express provision to the contrary in the terms of the trust, a trustee shall have no duty— (a) to act pursuant to subsection (3) unless and until it receives actual notice that circumstances requiring such action have arisen; or (b) to enquire as to whether circumstances requiring action pursuant to subsection (3) exist. (Amended by Act 7 of 2013) (10) Where, on any question concerning the appointment or removal of a director, a trustee makes application to the court under section 6 of the Trustees’ Relief Act, the court, in giving its opinion, advice, or direction, shall not seek to reduce business risk, except to the extent, if at all, that the court concludes that a reduction would be consistent with the wishes of the settlor. (Amended by Act 7 of 2013) Intervention by trustee in management in prescribed circumstances 8. (1) Where, in relation to a trust of designated shares, an interested person has a complaint concerning the conduct of the company’s affairs, and the ground for that complaint is permitted, he may, in writing, call upon the trustee to intervene in the affairs of the company to deal with the complaint. (2) A trust instrument may specify one or more permitted grounds for complaint, but need not specify any. (3) Upon receiving an intervention call, the trustee shall, if satisfied that the complaint is substantiated, take such, if any, action as the trustee considers appropriate to deal with the complaint in the interests of the trust. (4) Action taken under subsection (3) may include— (a) making or procuring changes in the directorship of the company in accordance with the provisions of its memorandum and articles and the law of the Territory, but otherwise on such terms as the trustee thinks fit, provided that in making, procuring or maintaining any such change, the trustee may disregard section 7(3)(b) if and for so long as, in the opinion of the trustee, it is expedient to do so for the purposes of dealing with the complaint;

LAW OF VIRGIN ISLANDS Virgin Islands Special Trusts Act 13 Revision Date: 1 Jan 2020 (b) procuring action by the company to recover any losses caused by the conduct giving rise to the complaint; or (c) seeking such advice on the complaint and the manner of addressing it as the trustee considers appropriate. (5) In considering and taking action under subsection (3), the trustee shall— (a) have regard to— (i) any wishes of the settlor; and (ii) the efficient functioning of the company; (b) disregard business risk, except to the extent that— (i) the ground for complaint consists of or arises from any disagreement among the directors as to business risk, or (ii) any wishes of the settlor require business risk to be considered. (6) After acting pursuant to subsection (3), or deciding not to act, the trustee’s obligation to intervene shall be at an end unless and until another intervention call is made. (7) It shall be a ground for declining to act on an intervention call if, apart from any other reason for declining, the call is made on substantially the same ground as one previously made, and there appears to the trustee to be no reason to alter, or act further on, the decision previously taken by it. (8) Where a trust instrument specifies one or more permitted grounds for complaint, the following provisions of this subsection shall apply— (a) an interested person may request the trustee to provide such information concerning the affairs of the company and any connected company as is reasonably required for that person to judge whether an intervention call is necessary, and the trustee shall use all reasonable endeavours to provide that information and may, if considered necessary for this purpose, procure the replacement of any of the directors with the trustee’s own representative; (b) where there is an appointed enquirer he shall be under the following duties— (i) a duty to make reasonable enquiries as to whether there is a permitted ground for complaint as often as appears appropriate in the circumstances, and not less than once in any period of twelve months; (ii) a duty to make an intervention call under this section, and provide the trustee with evidence of the relevant ground for complaint, whenever it appears to him to be appropriate; (c) where there is no appointed enquirer, the trustee shall use all reasonable endeavours to ensure that at all times at least one interested person of full capacity is given the following documents and information concerning the trust, but without

14 Virgin Islands Special Trusts Act Revision Date: 1 Jan 2020 LAW OF VIRGIN ISLANDS prejudice to any right of that person to documents and information apart from this paragraph— (i) a copy of the trust instrument and other trust documents, (ii) the name and address of the trustee, (iii) the name, registered office, and principal place of business, of the company, (iv) the names and addresses of all directors of the company, (v) the nature of the current activities of the company, provided that, where practicable, any person to whom information is given under this paragraph shall be a person who, in the reasonable opinion of the trustee, has acquired, or is likely to acquire, by appointment or otherwise, a substantial equitable interest in some or all of the designated shares or their proceeds or is the parent or legal guardian of such a person or who, in the case of a purpose trust, is the enforcer. (Amended by Act 7 of 2013) (8A) Where there is an appointed enquirer, the trustee shall use all reasonable endeavours to ensure that at all times he is given the documents and information concerning the trust which are referred to in subsection (8)(c)(i) to (v). (Inserted by Act 7 of 2013) (9) All expenses incurred in dealing with an intervention call or considering the complaint on which it is based, including trustee remuneration where applicable, and the cost of any advice, shall be borne by the trust fund and its income in such proportions as the trustee decides, and if there is any deficiency in liquid funds the trustee may take such steps as are available to the trustee under the memorandum and articles of the company and the law of the Territory to make up the shortfall out of dividends from the company and may, if considered necessary for this purpose, procure the replacement of any of the directors with the trustee’s own representative. (10) The trustee shall, where practicable, procure the removal from office of a director appointed for the purpose specified in subsection (8)(a) or (9) when the purpose for which the director was appointed is achieved, if removal is appropriate for the purpose of any action decided upon by the trustee pursuant to subsection (3) or, subject to such action, for the purpose of compliance with the office of director rules. (11) The terms of the trust may provide for the remuneration of the appointed enquirer to be paid from the trust fund. (Inserted by Act 7 of 2013) (12) The terms “enforcer” and “purpose trust” in subsection (8) shall be construed in accordance with the use of those terms in section 84A of the Trustee Act. (Inserted by Act 7 of 2013) Power to dispose 9. (1) This section shall apply to a trust of designated shares. (2) Subject to subsection (3) and to the terms of the trust instrument, the trustee shall have power, in the management or administration of the trust fund, to sell or otherwise dispose of designated shares, but the existence of this power—

LAW OF VIRGIN ISLANDS Virgin Islands Special Trusts Act 15 Revision Date: 1 Jan 2020 (a) shall not carry an implied duty to exercise it for the purpose of preserving or enhancing the value of the assets of the trust or to consider its exercise for that purpose; and (b) shall not render the trustee liable, in consequence of not exercising it, for losses of the kind referred to in section 5(3). (3) Subject to section 11, the trustee shall not, unless the trust instrument otherwise provides, sell or dispose of designated shares in the management or administration of the trust fund without— (a) the consent of the directors of the company or of a majority of them if more than one; and (b) such, if any, consents as are made requisite by the trust instrument. (4) A sale or other disposal in exercise of the power conferred by subsection (2) shall be made in such manner, and upon such terms and conditions, as the trustee, acting in its fiduciary capacity, thinks fit. (5) Section 59 of the Trustee Act shall not apply to the trust to the extent that it permits the court to confer upon the trustee any power of sale or other disposal. Enforcement 10. (1) Where in the case of a trust of designated shares there is a breach of a duty or obligation imposed by this Act on its trustee, any of the persons specified in subsection (3) may, subject to the terms of the trust, apply to the court for relief. (2) The court shall, if satisfied that the application under subsection (1) is well founded, grant relief by— (a) making such order as it considers appropriate to attain, as nearly as may be, the outcome that the court considers would have been, or would most likely have been, attained in respect of the trust, the company, its directors and generally if the breach had not occurred, (b) making such, if any, supplementary or incidental order as the court deems, in the circumstance of the case, reasonably required having regard to the primary purpose of this Act stated in section 3, provided that no order shall be made under this subsection to prejudice any interest in property which was acquired from the trustee in good faith, for value and without actual or constructive notice of the trust, or from the company in good faith and for full consideration, or to prejudice any interest deriving from such an interest. (3) The persons referred to in subsection (1) are— (a) any interested person; (b) any director of the company;

16 Virgin Islands Special Trusts Act Revision Date: 1 Jan 2020 LAW OF VIRGIN ISLANDS (c) any person who, under applicable office of director rules, would be a director if the trustee had complied with its obligations under section 7. (4) Without prejudice to subsections (1) to (3), but subject to subsection (5), where in the case of a trust there is a breach of a duty or obligation imposed by this Act on its trustee, the breach shall be, and be actionable in civil proceedings as, a breach of the trust. (5) Where civil proceedings are instituted in relation to a breach of a duty or obligation, the court shall, in granting any remedy, take account of any relief granted or available in respect of the breach on an application under subsection (1). (6) References in subsection (4) to a breach shall be taken to include references to a prospective breach. (7) Subject to the terms of the trust and to sections 7 and 8, where designated shares are held on trust, no act or omission of a director of the company shall be a ground for any person to seek intervention by the court in the affairs of the trust. Power of court to order disposal 11. (1) Where it is shown to the court that the retention of the shares is no longer compatible with the wishes of the settlor, the court shall have power, on the application of any interested person, to order or authorise a sale or other disposal of any designated shares, and a sale or other disposal so ordered or authorised shall not require any consent referred to in section 9(3). (2) In making an order, or giving authority, under this section the court may impose such, if any, terms and conditions in relation to the sale or other disposal as it thinks fit. Modification of rule in Saunders v. Vautier 12. (1) Notwithstanding any rule of equity or practice of the court to the contrary, but subject to subsection (2), neither a beneficiary who is solely interested in any designated shares, nor all the beneficiaries who together are the persons interested in any designated shares, shall be entitled, although in existence and ascertained and of full capacity, to call for or direct a transfer of those shares or to terminate or modify the trust relating to them if and so far as that entitlement is, without offending any rule of perpetuity or remoteness, excluded by the trust instrument. (2) No such exclusion of entitlement shall have effect, or continue to have effect, after the expiration of 20 years, or such shorter period as may be specified in the trust instrument, from the creation of the trust. (Amended by Act 7 of 2013) (3) Where a person who receives designated shares, or an interest in them, is a person who, by virtue of such an exclusion of entitlement, has no present right to receive the shares or that interest, he shall, without prejudice to the generality of subsection (1), hold those shares or that interest on trust to transfer the same to the trustee, and the court shall order him so to do on the application by the trustee or any person specified in section 10(3).

LAW OF VIRGIN ISLANDS Virgin Islands Special Trusts Act 17 Revision Date: 1 Jan 2020 (4) During any such exclusion of entitlement, section 58 of the Trustee Act shall not apply to the trust. Disqualification of trustee as a director 13. A trustee of designated shares shall not be, or become, a director of the company. Ascertaining wishes of settlor 14. (1) Where it is necessary under this Act for the court or a trustee to ascertain the wishes of the settlor, the following provisions of this section shall apply. (2) Where the settlor is alive or in existence, the settlor shall, where possible and practicable, be consulted as to his wishes. (Amended by Act 7 of 2013) (3) Where the settlor is dead or no longer in existence, or it is not possible or practicable to consult him, his wishes shall be taken to be— (a) such wishes as he has most recently communicated to the trustee, or (b) where no wishes or relevant wishes have been communicated, such as the court, or the trustee in good faith, believes most likely to have been his wishes from the evidence available to it. (Amended by Act 7 of 2013) Limitation of trustee’s duties 15. (1) A trustee of designated shares shall have no fiduciary responsibility or duty of care in respect of the assets of, or the conduct of the affairs of, the company, except when acting, or required to act, on an intervention call. (2) Without prejudice to the generality of subsection (1), a trustee of designated shares— (a) shall not be required to make any enquiry as to whether any facts exist which would, or may, whether with or without any other information, form the basis of an intervention call; (b) shall not be obliged to inform any interested person of any fact of which it becomes aware, or which it suspects, concerning the assets of the company or the conduct of its affairs; (c) shall not incur liability as accessory to a director’s breach of duty by reason of any omission on the part of the trustee to take action where the trustee is aware, or suspects, that there has been or will be such a breach, or by reason of any act or omission in compliance with the provisions of section 7. (3) A trust of designated shares may, by the terms of the trust instrument, exclude or modify any of the provisions of subsections (1) and (2) in relation to those shares. (Inserted by Act 7 of 2013)

18 Virgin Islands Special Trusts Act Revision Date: 1 Jan 2020 LAW OF VIRGIN ISLANDS (4) An exclusion or a modification made under subsection (3) shall have effect only if it expressly indicates that it is made pursuant to this section. (Inserted by Act 7 of 2013) Regulations 16. The Minister may make regulations for the purpose of carrying the provisions of this Act into effect.

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