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BVI Anti-Forced Heirship Rules
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Forced Heirship
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Section 83 of the Trustee Act
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Overhaul of section 83
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The new section 83
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BVI Anti-Forced Heirship Rules
Overhaul
of section 83 of the Trustee Act
With
the assistance of Professor Jonathan Harris of Birmingham University in the UK, the eminent academic
who specialises in this area of the law, the provisions of section 83 of the Act were recently analysed
in conjunction with the corresponding provisions of other offshore jurisdictions’ legislation with a
view to replacing this section by a new section containing a much more comprehensive set of statutory
conflict of laws rules for trusts.
Since certain commentators had pointed
out that the corresponding laws of many offshore trust jurisdictions were deficient in that they did
not deal with preliminary issues relating to the validity of all trusts, a further objective of the
review was to establish conflict of laws rules which apply to trusts generally, rather than merely to
those which are governed by BVI law.
Furthermore it was recognised, when
carrying out the review, that offshore trust jurisdictions’ conflict of laws rules were somewhat inadequate
in that they made no distinction between what are now generally regarded as two separate preliminary
issues of capacity, namely
- 1.
capacity to make the disposition
and
- 2.
capacity
to subject the property
disposed of to a trust.
Another
very significant objective of the review
was to set up a regime which was likely to command a substantial degree of international recognition.
Those
of the rules dealing with matters which are excluded from the Hague Trusts Convention which are summarised
below have therefore been drawn up with the objective of reflecting current common law trends. Whilst
it cannot be guaranteed that these rules will necessarily correspond exactly with case law as it eventually
develops in other common law jurisdictions, they are rules which are likely to command a certain degree
of academic support.
For that reason these rules should be seen by the
courts of other jurisdictions as a legitimate and rational approach.
Finally,
a further important objective of the review was to include in the Trustee Act some additional provisions
which are significantly more robust in their defence of potential forced heirship claims.
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