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
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.
